Volume 111

Victory: How a Lawyer, a Minister, and Twenty Professional Football Players Helped End Segregation in Virginia and Professional Sports

Introduction

As Chapman Law Dean Matthew Parlow has noted, “[a]thletes in professional sports have long sought to use their platforms as celebrities to bring greater societal awareness to issues of social justice and racial inequality.”1 1.Matthew J. Parlow, Racial Protest and Racial Progress in Professional Sports, 31 S. Cal. Rev. L. & Soc. Just. 239, 253 (2022).Show MoreOne of the clearest examples is the 2020 NBA player boycott following the shooting death of Jacob Blake by police in Kenosha, Wisconsin, a boycott that spread to several other professional sports organizations.2 2.Id. at 242–43; Marc Stein, Led by N.B.A., Boycotts Disrupt Pro Sports in Wake of Blake Shooting, N.Y. Times (Sept. 4, 2020), https://www.nytimes.com/2020/08/26/sports/basketba‌ll/nba-boycott-bucks-magic-blake-shooting.html.Show MoreMultiple media outlets covering the 2020 boycott referenced an event that garnered national attention in October 1961, when several members of the Boston Celtics and St. Louis Hawks refused to play in a preseason NBA game in response to discrimination in a hotel in Lexington, Kentucky.3 3.See, e.g., Des Bieler, Bill Russell Led an NBA Boycott in 1961. Now He’s Saluting Others for “Getting in Good Trouble,” Wash. Post (Aug. 27, 2020), https://www.washingtonpost.co‌m/sports/2020/08/27/bill-russell-nba-boycott/.Show MoreSome of the stories referred to this incident as the first professional athlete boycott related to a civil rights issue.4 4.Dustin Jones, As a Racial Justice Activist, NBA Great Bill Russell Was a Legend Off the Court, NPR (Aug. 21, 2022, 5:00 AM), https://www.npr.org/2022/08/01/1114795613/racial-j‌ustice-pioneer-nba-bill-russell [https://perma.cc/E3TX-99XE]; Darren Hartwell, Bill Russell’s Civil Rights Legacy Rivals His On-Court Accolades, NBC Sports Bos. (Feb. 7, 2023, 8:51 AM), https://www.nbcsportsboston.com/nba/boston-celtics/bill-russells-civil-righ‌ts-legacy-rivals-his-on-court-accolades/284760/ [https://perma.cc/3KSD-V3CU].Show More

Just two months earlier, however, another group of professional athletes—this time, a group of football players—had agreed to boycott a professional athletic event in protest of racial discrimination in Roanoke, Virginia. The athletes did so at the behest of a local minister, who was a prominent civil rights activist. At the same time, a local civil rights lawyer was pursuing litigation to challenge the discrimination at issue, specifically enforcement of a Virginia law that prohibited integrated seating at public events, including professional sporting events. But that summer, the lawyer, the minister, and twenty football players would use a preseason NFL game to bring attention to the injustice of Virginia’s law and challenge its constitutionality. In the process, they would play an important role in helping to end segregationist practices in the NFL, establishing precedent for future racial protests by professional athletes and helping to bring about an end to Virginia’s discriminatory law.

This Essay tells the story of this largely forgotten event from the summer of 1961. The event represents a success story in the history of the civil right movement and illustrates how both legal and extra-legal methods were necessary to achieve the goals of the movement.5 5.See William P. Quigley, Ten Ways of Looking at Movement Lawyering, 5 How. Hum. & C.R.L. Rev. 23, 34 (2020) (stating that social justice lawyers “are always part of a team that mostly includes non-lawyers” and rejecting the assertion “that lawyers led and shaped the civil rights movement”).Show MoreMuch of the focus on how the civil rights movement brought about change in the law focuses on the role that lawyers played.6 6.See generally Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (1994) (chronicling the history of the NAACP Legal Defense Fund during the civil rights movement).Show MoreBut the history of civil rights advancement is a history not just of how lawyers helped change the law and society, but how non-lawyer organizers and activists were equal partners in the undertaking.7 7.See Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 Colum. L. Rev. 1436, 1522–23 (2005) (“[T]he moral suasion of participatory democratic groups of nonlawyers, and typically nonelites, was integral to law’s movement from a Jim Crow regime to a constitutional order in which formal equality was the norm.”). See generally Jennifer Gordon, The Lawyer Is Not the Protagonist: Community Campaigns, Law, and Social Change, 95 Calif. L. Rev. 2133 (2007) (describing the role of lawyers in supporting community-led campaigns for justice); Ascanio Piomelli, Appreciating Collaborative Lawyering, 6 Clinical L. Rev. 427 (2000) (advocating for an approach of collaborative lawyering).Show More

This Essay focuses on how the lawyer at the center of the boycott in Roanoke, along with those who came before and after him, used the legal process to help change the law as well as societal norms regarding racial segregation. At the same time, the Essay explores how the non-lawyers involved in this episode played a vital and complementary role in the desegregation effort. In short, the Essay explores how Virginia’s segregation laws were toppled through a combination of legal action and activism. Most importantly, the Essay memorializes the forgotten role that these individuals played in helping to desegregate professional sports and in laying the foundation for future protests by professional athletes.

  1.  Matthew J. Parlow, Racial Protest and Racial Progress in Professional Sports, 31 S. Cal. Rev. L. & Soc. Just. 239, 253 (2022). ↑
  2.  Id. at 242–43; Marc Stein, Led by N.B.A., Boycotts Disrupt Pro Sports in Wake of Blake Shooting, N.Y. Times (Sept. 4, 2020), https://www.nytimes.com/2020/08/26/sports/basketba‌ll/nba-boycott-bucks-magic-blake-shooting.html. ↑
  3.  See, e.g., Des Bieler, Bill Russell Led an NBA Boycott in 1961. Now He’s Saluting Others for “Getting in Good Trouble,” Wash. Post (Aug. 27, 2020), https://www.washingtonpost.co‌m/sports/2020/08/27/bill-russell-nba-boycott/. ↑
  4.  Dustin Jones, As a Racial Justice Activist, NBA Great Bill Russell Was a Legend Off the Court, NPR (Aug. 21, 2022, 5:00 AM), https://www.npr.org/2022/08/01/1114795613/racial-j‌ustice-pioneer-nba-bill-russell [https://perma.cc/E3TX-99XE]; Darren Hartwell, Bill Russell’s Civil Rights Legacy Rivals His On-Court Accolades, NBC Sports Bos. (Feb. 7, 2023, 8:51 AM), https://www.nbcsportsboston.com/nba/boston-celtics/bill-russells-civil-righ‌ts-legacy-rivals-his-on-court-accolades/284760/ [https://perma.cc/3KSD-V3CU]. ↑
  5.  See William P. Quigley, Ten Ways of Looking at Movement Lawyering, 5 How. Hum. & C.R.L. Rev. 23, 34 (2020) (stating that social justice lawyers “are always part of a team that mostly includes non-lawyers” and rejecting the assertion “that lawyers led and shaped the civil rights movement”). ↑
  6.  See generally Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (1994) (chronicling the history of the NAACP Legal Defense Fund during the civil rights movement). ↑

  7.  See Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 Colum. L. Rev. 1436, 1522–23 (2005) (“[T]he moral suasion of participatory democratic groups of nonlawyers, and typically nonelites, was integral to law’s movement from a Jim Crow regime to a constitutional order in which formal equality was the norm.”). See generally Jennifer Gordon, The Lawyer Is Not the Protagonist: Community Campaigns, Law, and Social Change, 95 Calif. L. Rev. 2133 (2007) (describing the role of lawyers in supporting community-led campaigns for justice); Ascanio Piomelli, Appreciating Collaborative Lawyering, 6 Clinical L. Rev. 427 (2000) (advocating for an approach of collaborative lawyering). ↑

Constraining Legislative Expulsion

Every U.S. legislature, from the U.S. Congress to all fifty state legislatures, possesses the constitutional power to expel a member, a power that originated in English Parliament. As recently illustrated by the expulsions of two Tennessee legislators, however, this power may conflict with other constitutional rights of legislators and their constituents. This Note explores the tension between the constitutional power to expel and the constitutional rights of legislators and their constituents. In doing this, the Note responds to gaps in legal scholarship surrounding expulsion’s historical, legal, and theoretical dimensions. Most significantly, scholars have not comprehensively examined state constitutional powers of expulsion. While historical practice and precedent suggest that some bases for expulsion are unconstitutional, courts—whether ruling on the merits or eschewing political questions—have upheld legislative expulsions in almost every case. The Note argues that this dynamic is evidence of a right-remedy gap that threatens the vindication of constitutional rights. Given significant barriers to judicial relief, this Note argues that legislatures must reform their powers of expulsion—voluntarily or in response to citizen advocacy. Additionally, litigants should test a narrow avenue left open by recent Supreme Court precedent. With one-party supermajorities near their most numerous in modern American history, making expulsion more feasible, reform is urgently needed to prevent irremediable constitutional violations and to uphold the integrity of the democratic process.

Introduction

On the morning of March 27, 2023, a shooter killed three nine-year-old children and three staff members at the Covenant School in Nashville, Tennessee.1 1.Cries for Covenant: Deadly Mass Shooting Hits Nashville, The Tennessean (May 18, 2023, 11:59 AM), https://www.tennessean.com/in-depth/news/2023/05/18/cries-for-covenan‌t‌-dea‌d‌ly-mass-shooting-hits-nashville/70204202007/ [https://perma.cc/ULP3-H9B8].Show More In the months following, parents of the victims,2 2.Emily Cochrane, The Covenant Parents Aren’t Going to Keep Quiet on Guns, N.Y. Times (Dec. 26, 2023), https://www.nytimes.com/2023/12/26/us/politics/nashville-school-shooting-covenant-parents.html.Show More thousands of Nashville-area students,3 3.Marta W. Aldrich, Nashville Students Rally for Tougher Gun Laws, As Governor Seeks Armed Guards for Every School, Chalkbeat (Apr. 3, 2023, 7:12 PM), https://www.chalkbeat.‌org/tennessee/2023/4/3/23668031/nashville-school-shooting-walkout-march-lives-capitol-pr‌otest-gun-safety/ [https://perma.cc/LPL3-2JJM].Show More and a sizeable, bipartisan coalition of Tennesseans4 4.Vanderbilt Poll: State Legislature’s Approval Remains Low; Bipartisan Support for Abortion Exceptions, Gun Safety Laws; More, Vanderbilt Univ. (Dec. 14, 2023, 6:00 AM), https://news.vanderbilt.edu/2023/12/14/vanderbilt-poll-tennessee-december-2023/ [https://pe‌rma.cc‌/5Y9U-N4S2].Show More expressed support for various gun reforms intended to prevent another attack. After a special session devoted to such reforms, all major legislative proposals failed in Tennessee’s General Assembly, with only modest bills aimed at mental health and security resources passing.5 5.Emily Cochrane, Tennessee Session Ends in Chaos, With No Action on Gun Control, N.Y. Times (Aug. 29, 2023), https://www.nytimes.com/2023/08/29/us/politics/tennessee-special-s‌ession-gun-control.html.Show More Amidst this painfully familiar pattern of American political history, something unprecedented occurred. Days after the shooting, Tennessee Representatives Gloria Johnson, Justin Jones, and Justin Pearson gathered in the heart of the Tennessee House chamber from 10:49 AM until 11:42 AM and “shouted, pounded on the podium, led chants with citizens in the gallery, and generally engaged in disorderly and disruptive conduct, including refusing to leave the well, sitting on the podium, and utilizing a sign displaying a political message” to advocate for gun law reforms.6 6.H.R. 65, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); see also Melissa Alonso & Dakin Andone, Tennessee House Republicans Take Steps to Remove Democratic Lawmakers After They Joined Gun Control Protest, CNN (Apr. 4, 2023, 10:20 PM), https://www.cnn.com‌/2023/04/04/us/tennessee-reps-expulsion-gun-control/index.html [https://perma.cc/WNQ5-S‌GRW] (noting Representative Sam McKenzie’s view that this “political retribution is unconstitutional”).Show More Representatives Jones and Pearson also “used a bullhorn to amplify their protestations.”7 7.Tenn. H.R. 65.Show More For these acts, House Republicans filed three nearly identical resolutions to remove the Democratic lawmakers from office.8 8.Id.; H.R. 64, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); H.R. 63, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); Alonso & Andone, supra note 6. Only the representatives’ names, pronouns, legislative districts, and home counties differ among the three resolutions, along with the resolutions’ sponsors.Show More

After six hours of proceedings on the House floor, the legislature voted to expel Representatives Jones (72-25) and Pearson (69-26), both of whom are Black men under the age of thirty, while voting not to expel Representative Johnson (65-30), who is a white woman in her sixties.9 9.Adam Friedman, ‘An Abomination:’ TN House Expels Two Dems Over Gun Protest, Despite Removal Looking Temporary, Tenn. Lookout (Apr. 7, 2023, 8:56 AM), https://tennes‌seelookout.com/2023/04/07/an-abomination-tn-house-expels-two-dems-over-gun-protest-de‌spite-removal-looking-temporary/ [https://perma.cc/GUW9-TD3K]; Tenn. Gen. Assemb., HR 0065, https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=HR0065&g‌a‌=‌113 [https://perma.cc/7E27-GUMJ] (last visited Jan. 7, 2025) (Rep. Jones); Tenn. Gen. Assemb., HR 0063, https://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=HR0‌063&GA=113 [https://perma.cc/RC4C-AEY4] (last visited Jan. 7, 2025) (Rep. Pearson); Tenn. Gen. Assemb., HR 0064, https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?B‌ill‌Nu‌mber=HR0064&ga=112 [https://perma.cc/A5CW-CR2V] (last visited Jan. 7, 2025) (Rep. Johnson); Representative Justin J. Pearson, Tenn. Gen. Assemb., https://wapp.capitol.tn.gov/‌a‌p‌p‌s/legislatorinfo/member.aspx?district=h86 [https://perma.cc/3QKK-6A8U] (last visited Oct. 11, 2024).Show More Apart from recognizing Representatives Jones’s and Pearson’s use of a bullhorn, the expulsion resolutions did not distinguish among the legislators’ alleged conduct.10 10.Tenn. H.R. 65; Tenn. H.R. 64; Tenn. H.R. 63.Show More During his expulsion hearing, Representative Pearson stated: “I take full accountability and responsibility for my actions . . . [but] there was in no world or way that I thought that would lead to us being expelled from this House that we got elected into by our constituents. . . . That is antidemocratic.”11 11.Tennessee House of Representatives, House Floor Session 21st Legislative Day—April 6, 2023, YouTube (Apr. 6, 2023) (statement of Rep. Pearson), at 9:21:00–9:21:36, https://www.youtube.com/live/ZZK–_x3gIU?t=3089‌4s [https://perma.cc/KMJ2-4249].Show More President Joe Biden called Pearson’s expulsion “shocking” and “undemocratic.”12 12.Chris Megerian, Aamer Madhani & Josh Boak, Biden Thanks ‘Tennessee Three’ for ‘Standing Up,’ Associated Press (Apr. 24, 2023, 6:07 PM), https://apnews.com/article/biden-tennessee-three-lawmakers-pearson-jones-johnson-bb74e4bdb9628d53d64d13acf004248c; cf.Editorial, The Tennessee Bullhorn Isn’t Democracy, Wall St. J. (Apr. 19, 2023, 6:45 PM), https://www.wsj.com/articles/tennessee-justin-jones-justin-pearson-bullhorn‌-biden-white-house-chuck-schumer-gun-control-b9a4d4f5 (arguing that the conduct of the Tennessee Three was sufficiently disruptive to justify expulsion).Show More

When asked why he voted to expel Representatives Pearson and Jones but flipped his vote in favor of Representative Johnson, one House Republican explained:

I’m an attorney, and Ms. Johnson was the only representative that showed up with legal counsel. And their legal counsel made an opening statement, pointing out deficiencies in the resolution that had been filed that we were voting on. And once those deficiencies were pointed out, in my view as an attorney, then it was incumbent upon the debate to present evidence to correct that and to establish clearly what it was that Ms. Johnson did to rise to the level of expulsion. I just don’t think that we established that during the debate.13 13.Erika Ryan, Patrick Jarenwattananon & Mary Louise Kelly, Tennessee GOP Rep. Barrett on Why He Voted to Expel Two Colleagues But Not the Third, NPR (Apr. 7, 2023, 5:24 PM), https://www.npr.org/2023/04/07/1168728769/tennessee-gop-rep-barrett-on-why-he-voted-to-expel-two-colleagues-but-not-the-th [https://perma.cc/K7R9-VTZY]; see also Tenn. H.R. 64 (proposed resolution expelling Rep. Johnson).Show More

In a leaked tape recording of the House Republicans’ caucus meeting after the expulsion votes, Representative Jason Zachary said: “I don’t want to hear why there wasn’t preponderance of the evidence as an attorney—I need to know why you flipped your vote at the last minute.”14 14.Cheyanne M. Daniels, Leaked Audio Shows Tennessee GOP Infighting Over Expulsion of Black Lawmakers, The Hill (Apr. 14, 2023, 3:59 PM), https://thehill.com/homenews/state-watch/3951196-leaked-audio-shows-tennessee-gop-infighting-over-expulsion-of-black-law‌makers/.Show More

Following their expulsions, Representatives Pearson and Jones were reinstated to their seats within a week.15 15.Bill Chappell & Katie Riordan, Both Black Tennessee Lawmakers Have Been Reinstated After Being Expelled by GOP, NPR(Apr. 12, 2023, 2:46 PM), https://www.npr.org/202‌3/0‌4‌/‌12/1169444850/justin-pea‌rson-vote-memphis-tennessee-house [https://perma.cc/BAZ4-BG‌4M].Show More Despite their prompt returns, the expulsions temporarily nullified roughly 10,000 combined votes cast for the representatives, were projected to incur taxpayer expenses exceeding $475,000, and disrupted Representatives Pearson’s and Jones’s committee assignments.16 16.Sam Stockard, Special Elections for Three Seats Could Hit $570,000, Tenn. Lookout (Apr. 27, 2023, 10:35 AM), https://tennesseelookout.com/2023/04/27/special-elections-for-three-seats-could-hit-570000/ [https://perma.cc/SFL5-6ANK]; see infra note 186 (indicating that Representatives Jones and Pearson earned 9,831 combined votes); see also Nadine Yousif, Brandon Drenon & Melisa Goh, Lawmakers Expelled: What to Know About the ‘Tennessee Three,’ BBC (Apr. 7, 2023), https://www.bbc.com/news/world-us-canada-65182502 [https://‌perma.‌cc/WZ35-PAQL].Show More Only Representative Jones raised constitutional challenges to the General Assembly’s actions, though his suit remains in a preliminary posture as of early 2025.17 17.Jones v. Sexton, No. 23-cv-01033, 2024 WL 4631658, at *1 (M.D. Tenn. Oct. 30, 2024).Show More

The U.S. Constitution18 18.U.S. Const. art. I, § 5, cl. 2.Show More and every state constitution19 19.Although Massachusetts, New Hampshire, New York, North Carolina, and South Dakota lack constitutional expulsion provisions, courts have interpreted other provisions to impliedly confer the power to expel. See Hiss v. Bartlett, 69 Mass. (3 Gray) 468 (1855); Horton v. McLaughlin, 821 A.2d 947 (N.H. 2003); Monserrate v. N.Y. State Senate, 599 F.3d 148 (2d Cir. 2010); Alexander v. Pharr, 103 S.E. 8 (N.C. 1920); Gray v. Gienapp, 2007 SD 12, 727 N.W.2d 808; see also infra Appendix: State Constitutional Expulsion Provisions.Show More empower legislatures to remove duly elected members, temporarily depriving constituents of their democratic representation. American legislatures have rarely exercised this power.20 20.Todd Garvey, Cong. Rsch. Serv., R45078, Expulsion of Members of Congress: Legal Authority and Historical Practice 4, 9 (2023).Show More When they have, legislators have been puzzled by expulsion’s obscurity and its inherent constitutional tensions.21 21.See, e.g., Investigation of Sen. Joseph R. McCarthy: Hearings on S.R. 187 Before the Subcomm. on Privileges & Elections of the S. Comm. on Rules & Admin., 82d Cong. 62 (1952) [hereinafter McCarthy Hearing] (statement of Sen. William Benton) (explaining that the Senate “is not an investigating body” and identifying the need for “procedure, in the form of a committee” to pursue expulsion charges); see also, e.g., Cong. Globe, 37th Cong., 2d Sess. 969–70 (1862) (statement of Sen. John Sherman) (debating the procedure and scope of expulsion with other Senators).Show More Even against such sparse precedent, the Tennessee legislature’s 2023 expulsion votes raised new constitutional questions that were previously relegated to hypotheticals22 22.Monserrate v. N.Y. State Senate, 695 F. Supp. 2d 80, 92 (S.D.N.Y. 2010) (describing “hypothetical worst-case scenarios of the misuse of the expulsion power to discriminate against racial, ethnic, and political minorities”), aff’d, 599 F.3d 148 (2d Cir. 2010); see also Expulsion of House Member for Conduct Pre-Dating Election, Tenn. Att’y Gen. Op. No. 19-20, at 5 (2019) (observing that “the equal protection guarantees of Tennessee and U.S. Constitutions would prevent racially discriminatory expulsion decisions”).Show More and dicta,23 23.Hous. Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1263–64 (2022) (reserving the question of a First Amendment retaliation claim in the context of legislative expulsion).Show More provoking a national reckoning with an unfamiliar legislative power. That reckoning continued months later with the historic removal of Congressman George Santos for his financial misdeeds.24 24.Michael Gold & Grace Ashford, George Santos Is Kicked Out of Congress in a Historic Vote, N.Y. Times (Dec. 1, 2023), http://www.nytimes.com/2023/12/01/nyregion/santos-expu‌lsion-vote-congress.html; H.R. Res. 878, 118th Cong., 169 Cong. Rec. H6062–63 (daily ed. Dec. 1, 2023) (enacted).Show More Urgent questions that implicate democratic principles of representation, due process, and free expression remain unresolved. What constitutional rules govern expulsion proceedings? Are there any constraints on a legislature’s expulsion power when the grounds for expulsion implicate constitutional rights?

Despite the urgency of these foundational questions, expulsion scholarship has remained frozen in time. As recently as 2022, the Supreme Court cited as authoritative a 1978 article on expulsion’s early history—a study authored nearly fifty years ago without the benefit of digital archival research.25 25.See Dorian Bowman & Judith Farris Bowman, Article I, Section 5: Congress’ Power to Expel—An Exercise in Self-Restraint, 29 Syracuse L. Rev. 1071 (1978); Wilson, 142 S. Ct. at 1259 (citing Bowman & Bowman, supra); Garvey, supra note 20, at 3 n.22.Show More Recent federal cases have explored the boundaries of expulsion law, yet they have not been scrutinized by the Congressional Research Service—a key resource for legislators.26 26.See, e.g., Garvey, supra note 20, at 5–7 (discussing predominately early to mid-twentieth century case law).Show More Scholars have also examined the federal expulsion power in isolation, despite the fact that most expulsions arise under state constitutions rather than under the U.S. Constitution.27 27.See, e.g., id.;Robyn Sanders & Andrew Garber, The Unconstitutional Expulsion of Legislators, Brennan Ctr. for Just. (May 25, 2023), https://www.brennancenter.org/our-work/‌research-reports/unconstitutional-expulsion-legislators [https://perma.cc/6ZX4-9RWQ].Show More Scholarship has yet to comprehensively examine state expulsion powers even while the Supreme Court has emphasized the centrality of state law in Dobbs v. Jackson Women’s Health Organization28 28.142 S. Ct. 2228, 2242, 2256 (2022).Show More and Whole Woman’s Health v. Jackson.29 29.142 S. Ct. 522, 537–38 (2021).Show More In short, legal scholarship offered precious little in response to the Tennessee Three and the incident’s constitutional questions.

This Note offers a modern synthesis of expulsion’s historical, legal, and theoretical dimensions. Part I retraces the historical roots of expulsion from English Parliament through the Founding Era, uncovering previously unexamined perspectives on expulsion from James Madison, Alexander Hamilton, and Abigail Adams.30 30.The author is unaware of any expulsion scholarship to date that examines James Madison’s reflections on French expulsion, Alexander Hamilton’s proposal to abolish expulsion, Abigail Adams’s reflections on partisan expulsion, or various Anti-Federalist concerns about the Constitution’s expulsion power. See infra notes 58, 61, 65, 66, 67, 87 and accompanying text.Show More With the advent of digital archival tools, these Founding Era sources enrich our understanding and recontextualize Dorian and Judith F. Bowman’s 1978 account. This Part also provides a comprehensive analysis of state expulsion provisions, filling a gap in the literature and highlighting the importance of state-level practices where most expulsions occur.31 31.See infra notes 70, 72–74 and accompanying text; Appendix: State Constitutional Expulsion Provisions.Show More

Part II surveys judicial review of expulsions, including recent federal case law examining constitutional challenges to expulsion (and similar procedures).32 32.Most notably, this includes Houston Community College System v. Wilson,142 S. Ct. 1253 (2022). The author is unaware of expulsion scholarship evaluating other recent federal opinions such as Hernandez v. Oregon Legislature, 521 F. Supp. 3d 1025 (D. Or. 2021), or Shooter v. Arizona, 4 F.4th 955 (9th Cir. 2021), cert. denied, 142 S. Ct. 898 (2022).Show More This Part demonstrates that judicial review is ill-equipped to address the sort of constitutional issues raised by the Tennessee Three, exposing a gap between constitutional rights and judicial remedies for their violation that requires further scholarly attention.33 33.See infra note 178 and accompanying text.Show More Part III proposes specific reforms to prevent antidemocratic abuses of the expulsion power, including legislative amendments and claims-making in the First Amendment retaliation context, which appears ripe for challenge following the Supreme Court’s ruling in Houston Community College System v. Wilson.34 34.142 S. Ct. 1253.Show More

While this Note does not purport to definitively resolve all the complex constitutional questions surrounding expulsion, it takes a critical step forward by offering historical insights, exposing current legal deficiencies, and charting a path for future research and reform efforts. Taken as a whole, this Note calls attention to an understudied topic of foundational importance to American democracy. Expulsion matters because it has the potential to censor the political process, alter legislative outcomes, and deprive citizens of democratic representation. Although the mine-run of expulsions involving criminal convictions may not appear facially unconstitutional, the Tennessee Three incident suggests that when constitutional issues do emerge in the expulsion context, they raise significant right-remedy gaps.35 35.See generally John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87 (1999) (discussing this term and the shortfall between the goals of rights and the realities of implemented remedies).Show More Without additional guardrails to uphold the constitutional rights of legislators and their constituents, the expulsion power may be exploited for antidemocratic purposes. That risk of exploitation appears even greater today, when one-party supermajorities are near their most numerous in modern American history, making expulsion more feasible.36 36.See infra notes 207–08 and accompanying text.Show More

  1.  Cries for Covenant: Deadly Mass Shooting Hits Nashville, The Tennessean (May 18, 2023, 11:59 AM), https://www.tennessean.com/in-depth/news/2023/05/18/cries-for-covenan‌t‌-dea‌d‌ly-mass-shooting-hits-nashville/70204202007/ [https://perma.cc/ULP3-H9B8]. ↑
  2.  Emily Cochrane, The Covenant Parents Aren’t Going to Keep Quiet on Guns, N.Y. Times (Dec. 26, 2023), https://www.nytimes.com/2023/12/26/us/politics/nashville-school-shooting-covenant-parents.html. ↑
  3.  Marta W. Aldrich, Nashville Students Rally for Tougher Gun Laws, As Governor Seeks Armed Guards for Every School, Chalkbeat (Apr. 3, 2023, 7:12 PM), https://www.chalkbeat.‌org/tennessee/2023/4/3/23668031/nashville-school-shooting-walkout-march-lives-capitol-pr‌otest-gun-safety/ [https://perma.cc/LPL3-2JJM]. ↑
  4.  Vanderbilt Poll: State Legislature’s Approval Remains Low; Bipartisan Support for Abortion Exceptions, Gun Safety Laws; More, Vanderbilt Univ. (Dec. 14, 2023, 6:00 AM), https://news.vanderbilt.edu/2023/12/14/vanderbilt-poll-tennessee-december-2023/ [https://pe‌rma.cc‌/5Y9U-N4S2]. ↑
  5.  Emily Cochrane, Tennessee Session Ends in Chaos, With No Action on Gun Control, N.Y. Times (Aug. 29, 2023), https://www.nytimes.com/2023/08/29/us/politics/tennessee-special-s‌ession-gun-control.html. ↑
  6.  H.R. 65, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); see also Melissa Alonso & Dakin Andone, Tennessee House Republicans Take Steps to Remove Democratic Lawmakers After They Joined Gun Control Protest, CNN (Apr. 4, 2023, 10:20 PM), https://www.cnn.com‌/2023/04/04/us/tennessee-reps-expulsion-gun-control/index.html [https://perma.cc/WNQ5-S‌GRW] (noting Representative Sam McKenzie’s view that this “political retribution is unconstitutional”). ↑
  7.  Tenn. H.R. 65. ↑
  8.  Id.; H.R. 64, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); H.R. 63, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); Alonso & Andone, supra note 6. Only the representatives’ names, pronouns, legislative districts, and home counties differ among the three resolutions, along with the resolutions’ sponsors. ↑
  9.  Adam Friedman, ‘An Abomination:’ TN House Expels Two Dems Over Gun Protest, Despite Removal Looking Temporary, Tenn. Lookout (Apr. 7, 2023, 8:56 AM), https://tennes‌seelookout.com/2023/04/07/an-abomination-tn-house-expels-two-dems-over-gun-protest-de‌spite-removal-looking-temporary/ [https://perma.cc/GUW9-TD3K]; Tenn. Gen. Assemb., HR 0065, https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=HR0065&g‌a‌=‌113 [https://perma.cc/7E27-GUMJ] (last visited Jan. 7, 2025) (Rep. Jones); Tenn. Gen. Assemb., HR 0063, https://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=HR0‌063&GA=113 [https://perma.cc/RC4C-AEY4] (last visited Jan. 7, 2025) (Rep. Pearson); Tenn. Gen. Assemb., HR 0064, https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?B‌ill‌Nu‌mber=HR0064&ga=112 [https://perma.cc/A5CW-CR2V] (last visited Jan. 7, 2025) (Rep. Johnson); Representative Justin J. Pearson, Tenn. Gen. Assemb., https://wapp.capitol.tn.gov/‌a‌p‌p‌s/legislatorinfo/member.aspx?district=h86 [https://perma.cc/3QKK-6A8U] (last visited Oct. 11, 2024). ↑
  10.  Tenn. H.R. 65; Tenn. H.R. 64; Tenn. H.R. 63. ↑
  11.  Tennessee House of Representatives, House Floor Session 21st Legislative Day—April 6, 2023, YouTube (Apr. 6, 2023) (statement of Rep. Pearson), at 9:21:00–9:21:36, https://www.youtube.com/live/ZZK–_x3gIU?t=3089‌4s [https://perma.cc/KMJ2-4249]. ↑
  12.  Chris Megerian, Aamer Madhani & Josh Boak, Biden Thanks ‘Tennessee Three’ for ‘Standing Up,’ Associated Press (Apr. 24, 2023, 6:07 PM), https://apnews.com/article/biden-tennessee-three-lawmakers-pearson-jones-johnson-bb74e4bdb9628d53d64d13acf004248c; cf. Editorial, The Tennessee Bullhorn Isn’t Democracy, Wall St. J. (Apr. 19, 2023, 6:45 PM), https://www.wsj.com/articles/tennessee-justin-jones-justin-pearson-bullhorn‌-biden-white-house-chuck-schumer-gun-control-b9a4d4f5 (arguing that the conduct of the Tennessee Three was sufficiently disruptive to justify expulsion). ↑
  13.  Erika Ryan, Patrick Jarenwattananon & Mary Louise Kelly, Tennessee GOP Rep. Barrett on Why He Voted to Expel Two Colleagues But Not the Third, NPR (Apr. 7, 2023, 5:24 PM), https://www.npr.org/2023/04/07/1168728769/tennessee-gop-rep-barrett-on-why-he-voted-to-expel-two-colleagues-but-not-the-th [https://perma.cc/K7R9-VTZY]; see also Tenn. H.R. 64 (proposed resolution expelling Rep. Johnson). ↑
  14.  Cheyanne M. Daniels, Leaked Audio Shows Tennessee GOP Infighting Over Expulsion of Black Lawmakers, The Hill (Apr. 14, 2023, 3:59 PM), https://thehill.com/homenews/state-watch/3951196-leaked-audio-shows-tennessee-gop-infighting-over-expulsion-of-black-law‌makers/. ↑
  15.  Bill Chappell & Katie Riordan, Both Black Tennessee Lawmakers Have Been Reinstated After Being Expelled by GOP,
    NPR

    (Apr. 12, 2023, 2:46 PM), https://www.npr.org/202‌3/0‌4‌/‌12/1169444850/justin-pea‌rson-vote-memphis-tennessee-house [https://perma.cc/BAZ4-BG‌4M]. ↑

  16.  Sam Stockard, Special Elections for Three Seats Could Hit $570,000, Tenn. Lookout (Apr. 27, 2023, 10:35 AM), https://tennesseelookout.com/2023/04/27/special-elections-for-three-seats-could-hit-570000/ [https://perma.cc/SFL5-6ANK]; see infra note 186 (indicating that Representatives Jones and Pearson earned 9,831 combined votes); see also Nadine Yousif, Brandon Drenon & Melisa Goh, Lawmakers Expelled: What to Know About the ‘Tennessee Three,’ BBC (Apr. 7, 2023), https://www.bbc.com/news/world-us-canada-65182502 [https://‌perma.‌cc/WZ35-PAQL]. ↑
  17.  Jones v. Sexton, No. 23-cv-01033, 2024 WL 4631658, at *1 (M.D. Tenn. Oct. 30, 2024). ↑
  18.  U.S. Const. art. I, § 5, cl. 2. ↑
  19.  Although Massachusetts, New Hampshire, New York, North Carolina, and South Dakota lack constitutional expulsion provisions, courts have interpreted other provisions to impliedly confer the power to expel. See Hiss v. Bartlett, 69 Mass. (3 Gray) 468 (1855); Horton v. McLaughlin, 821 A.2d 947 (N.H. 2003); Monserrate v. N.Y. State Senate, 599 F.3d 148 (2d Cir. 2010); Alexander v. Pharr, 103 S.E. 8 (N.C. 1920); Gray v. Gienapp, 2007 SD 12, 727 N.W.2d 808; see also infra Appendix: State Constitutional Expulsion Provisions. ↑
  20.  Todd Garvey, Cong. Rsch. Serv.,
    R45078

    , Expulsion of Members of Congress: Legal Authority and Historical Practice

    4, 9

    (2023). ↑

  21.  See, e.g., Investigation of Sen. Joseph R. McCarthy: Hearings on S.R. 187 Before the Subcomm. on Privileges & Elections of the S. Comm. on Rules & Admin., 82d Cong. 62 (1952) [hereinafter McCarthy Hearing] (statement of Sen. William Benton) (explaining that the Senate “is not an investigating body” and identifying the need for “procedure, in the form of a committee” to pursue expulsion charges); see also, e.g., Cong. Globe, 37th Cong., 2d Sess. 969–70 (1862) (statement of Sen. John Sherman) (debating the procedure and scope of expulsion with other Senators). ↑
  22.  Monserrate v. N.Y. State Senate, 695 F. Supp. 2d 80, 92 (S.D.N.Y. 2010) (describing “hypothetical worst-case scenarios of the misuse of the expulsion power to discriminate against racial, ethnic, and political minorities”), aff’d, 599 F.3d 148 (2d Cir. 2010); see also Expulsion of House Member for Conduct Pre-Dating Election, Tenn. Att’y Gen. Op. No. 19-20, at 5 (2019) (observing that “the equal protection guarantees of Tennessee and U.S. Constitutions would prevent racially discriminatory expulsion decisions”). ↑
  23.  Hous. Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1263–64 (2022) (reserving the question of a First Amendment retaliation claim in the context of legislative expulsion). ↑
  24.  Michael Gold & Grace Ashford, George Santos Is Kicked Out of Congress in a Historic Vote, N.Y. Times (Dec. 1, 2023), http://www.nytimes.com/2023/12/01/nyregion/santos-expu‌lsion-vote-congress.html; H.R. Res. 878, 118th Cong., 169 Cong. Rec. H6062–63 (daily ed. Dec. 1, 2023) (enacted). ↑
  25.  See Dorian Bowman & Judith Farris Bowman, Article I, Section 5: Congress’ Power to Expel—An Exercise in Self-Restraint, 29 Syracuse L. Rev
    .

    1071 (1978); Wilson, 142 S. Ct. at 1259 (citing Bowman & Bowman, supra); Garvey, supra note 20, at 3 n.22. ↑

  26.  See, e.g., Garvey, supra note 20, at 5–7 (discussing predominately early to mid-twentieth century case law). ↑
  27.  See, e.g., id.; Robyn Sanders & Andrew Garber, The Unconstitutional Expulsion of Legislators, Brennan Ctr. for Just. (May 25, 2023), https://www.brennancenter.org/our-work/‌research-reports/unconstitutional-expulsion-legislators [https://perma.cc/6ZX4-9RWQ]. ↑
  28.  142 S. Ct. 2228, 2242, 2256 (2022). ↑
  29.  142 S. Ct. 522, 537–38 (2021). ↑
  30.  The author is unaware of any expulsion scholarship to date that examines James Madison’s reflections on French expulsion, Alexander Hamilton’s proposal to abolish expulsion, Abigail Adams’s reflections on partisan expulsion, or various Anti-Federalist concerns about the Constitution’s expulsion power. See infra notes 58, 61, 65, 66, 67, 87 and accompanying text. ↑
  31.  See infra notes 70, 72–74 and accompanying text; Appendix: State Constitutional Expulsion Provisions. ↑
  32.  Most notably, this includes Houston Community College System v. Wilson, 142 S. Ct. 1253 (2022). The author is unaware of expulsion scholarship evaluating other recent federal opinions such as Hernandez v. Oregon Legislature, 521 F. Supp. 3d 1025 (D. Or. 2021), or Shooter v. Arizona, 4 F.4th 955 (9th Cir. 2021), cert. denied, 142 S. Ct. 898 (2022). ↑
  33.  See infra note 178 and accompanying text. ↑
  34.  142 S. Ct. 1253. ↑
  35.  See generally John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87 (1999) (discussing this term and the shortfall between the goals of rights and the realities of implemented remedies). ↑

  36.  See infra notes 207–08 and accompanying text. ↑

Regulating Hidden AI Authorship

With the rapid emergence of high-quality generative artificial intelligence (“AI”), some have advocated for mandatory disclosure when the technology is used to generate new text, images, or video. But the precise harms posed by nontransparent uses of generative AI have not been fully explored. While the use of the technology to produce material that masquerades as factual (“deepfakes”) is clearly deceptive, this Article focuses on a more ambiguous area: the consumer’s interest in knowing whether works of art or entertainment were created using generative AI.

In the markets for creative content—fine art, books, movies, television, music, and the like—producers have several financial reasons to hide the role of generative AI in a work’s creation. Copyright law is partially responsible. The Copyright Office and courts have concluded that only human-authored works are copyrightable, meaning much AI-generated content falls directly into the public domain. Producers thus have an incentive to conceal the role of generative AI in a work’s creation because disclosure could jeopardize their ability to secure copyright protection and monetize the work.

Whether and why this obfuscation harms consumers is a different matter. The law has never required disclosure of the precise ways a work is created; indeed, failing to publicly disclose the use of a ghostwriter or other creative assistance is not actionable. But AI authorship is different for several reasons. There is growing evidence that consumers have strong ethical and aesthetic preferences for human-created works and understand the failure to disclose AI authorship as deceptive. Moreover, hidden AI authorship is normatively problematic from the perspective of various theories of artistic value. Works that masquerade as human-made destabilize art’s ability to encourage self-definition, empathy, and democratic engagement, turning all creative works into exclusively entertainment-focused commodities.

This Article also investigates ways to facilitate disclosure of the use of generative AI in creative works. Industry actors could be motivated to self-regulate, adopting a provenance-tracking or certification scheme. And Federal Trade Commission (“FTC”) enforcement could provide some additional checks on the misleading use of AI in a work’s creation. Intellectual property law could also help incentivize disclosure. In particular, doctrines designed to prevent the overclaiming of material in the public domain—such as copyright misuse—could be used to raise the financial stakes of failing to disclose the role of AI in a work’s creation.

Introduction

When Marvel Studios’ big-budget series, Secret Invasion, premiered in June 2023, most viewers did not give a second thought to the show’s opening credits, which featured angular alien faces, a toothless Samuel L. Jackson, and swirling green cityscapes. Shortly after the show premiered, however, director and executive producer Ali Salim made an unusual admission: the credit sequence’s visuals had been generated using artificial intelligence (“AI”).1 1.Zosha Millman, Yes, Secret Invasion’s Opening Credits Scene Is AI-Made—Here’s Why, Polygon (June 22, 2023, 7:16 PM), https://www.polygon.com/23767640/ai-mcu-secret-invas‌ion-opening-credits [https://perma.cc/5WPN-93TY].Show More Public outcry was swift. Many criticized the use of generative AI by a wealthy studio as “unethical,” especially in light of Hollywood labor disputes driven by the possible effects of generative AI on acting and writing jobs.2 2.See Angela Watercutter, Marvel’s Secret Invasion AI Scandal Is Strangely Hopeful, Wired (June 23, 2023, 9:00 AM), https://www.wired.com/story/marvel-secret-invasion-artificial-int‌elligence/.Show More Others argued that Marvel’s use of AI was lazy, yielding images devoid of artistic merit.3 3.See Dani Di Placido, Marvel’s AI-Generated ‘Secret Invasion’ Sequence Sparks Backlash, Forbes (June 23, 2023, 11:47 AM), https://www.forbes.com/sites/danidiplacido/2023/06/21/t‌he-big-backlash-against-marvels-secret-invasion-explained/?sh=2ef04c17344e.Show More The criticism ultimately prompted Marvel to walk back its admission, explaining that “AI is just one tool among the array of tool sets our artists used. No artists’ jobs were replaced by incorporating these new tools; instead, they complemented and assisted our creative teams.”4 4.Carolyn Giardina, ‘Secret Invasion’ Opening Using AI Cost “No Artists’ Jobs,” Says Studio That Made It, Hollywood Rep. (June 21, 2023, 8:12 PM), https://www.hollywoodrepo‌rter.com/tv/tv-news/secret-invasion-ai-opening-1235521299/ [https://perma.cc/3DTD-U4‌6W].Show More

With the dramatic arrival of high-quality generative AI systems,5 5.For a full discussion of what I mean by “generative AI,” see infra Section I.A.Show More scholars and policy-makers have begun debating the potential harms posed by the technology’s many possible applications. Much of this debate has centered on generative AI’s ability to create materials that masquerade as factual—in particular, false photorealistic images and audiovisual content, commonly known as “deepfakes”—which can harm individual reputations or further misinformation that undermines public trust.6 6.See generally Lisa Macpherson, Lies, Damn Lies, and Generative Artificial Intelligence: How GAI Automates Disinformation and What We Should Do About It, Pub. Knowledge (Aug. 7, 2023), https://publicknowledge.org/lies-damn-lies-and-generative-artificial-intellige‌nce-how-gai-automates-disinformation-and-what-we-should-do-about-it/ [https://perma.cc/9‌BNL-QN9S] (discussing the potential harm to the integrity of news through the use of generative AI); Adam Satariano & Paul Mozur, The People Onscreen Are Fake. The Disinformation Is Real, N.Y. Times (Feb. 7, 2023), https://www.nytimes.com/2023/02/07/tec‌hnology/artificial-intelligence-training-deepfake.html (describing how deepfakes make it difficult to separate reality from forgeries and enable the spread of propaganda by foreign governments); Todd C. Helmus, Artificial Intelligence, Deepfakes, and Disinformation: A Primer, RAND Corp. (July 6, 2022), https://www.rand.org/pubs/perspectives/PEA1043-1.ht‌ml [https://perma.cc/HD55-62L5] (observing that, in an increasingly polarized and fact-resistant political climate, deepfakes pose a potent threat). See also Council Regulation 2024/1689, art. 134, 2024 O.J. (L) 1, 34 (EU) (requiring creators of deepfakes to disclose use of AI).Show More But the Secret Invasion controversy illustrates an underexplored dimension of the lack of transparency in many uses of generative AI: Are consumers also deceived by nonfactual, AI-generated creative works that masquerade as human-made? Put another way, does hidden AI “authorship”—that is, the undisclosed use of AI to produce expression that we generally consider to be within the purview of human creators7 7.As discussed below, AI cannot be an author for legal purposes, so when I say “AI authorship,” I refer to situations in which AI has accomplished the creative work that we generally associate with human authorship. See infra Subsections I.B.2, II.C.2.Show More—pose harm to the public?

This Article provides the first comprehensive treatment of this question, as well as the problem of hidden AI authorship more generally. In so doing, this Article makes three contributions. The first contribution is descriptive: the Article examines how and why producers of commercial creative works—visual art, books, television, music, films, and more—might choose to hide the role of generative AI in the production of new content. Though not immediately obvious, this phenomenon is deeply intertwined with intellectual property law, and copyright law in particular. As copyright decision-makers increasingly find that AI-generated works are largely unprotectable, producers have an incentive to hide their use of the technology. The second contribution is normative: the Article argues that the hiding of AI authorship indeed poses harm to consumers, albeit a less straightforward form of harm than the clear problems posed by deceptive deepfakes. This harm must be understood by examining the strong evidence that many consumers prefer human-created works of art and entertainment, as well as the broader social significance of human authorship in art’s ability to foster self-definition, empathy, and political engagement. The third contribution is prescriptive: the Article identifies various regulatory options, including existing consumer protection and intellectual property law regimes, that could be used to encourage greater transparency among the sellers of AI-generated content, enabling better informed consumer choice.

How might generative AI come to be frequently, but nontransparently, used to create new works of art and entertainment? As Part I explores, this problem is already emerging. Generative AI is quickly being incorporated into content creation, leading large content producers to encounter a dilemma like the one faced by Marvel: whether or not to disclose the role of the technology in a work’s creation. As the creators of Secret Invasion discovered, many consumers seem to bristle at the use of the technology. Indeed, recent empirical research suggests that many consumers consider “AI-generated” works inferior, even if they cannot tell from the work itself that AI had a role in its creation.8 8.See infra Subsection I.B.1; see, e.g., Lucas Bellaiche et al., Humans Versus AI: Whether and Why We Prefer Human-Created Compared to AI-Created Artwork, 8 Cognitive Rsch., 2023, at 1, 3 (observing that, across multiple artistic mediums, study participants preferred art labelled “human-created” over art labelled “AI-created”).Show More This yields a clear financial incentive to hide the AI provenance of a work from the public.

Current trends in copyright law compound producers’ incentives to hide their use of generative AI. It is black-letter law that a work created by a nonhuman is ineligible for copyright protection.9 9.See, e.g., Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018) (monkey that took “selfie” photos could not claim copyright for lack of standing); see also infra Subsection I.B.2 (discussing limits on copyright protections for works not produced by human beings).Show More Courts and the Copyright Office10 10.The Copyright Office is a regulatory body housed in the Library of Congress that is responsible for registering new works. See infra Subsection I.B.2.Show More have emphasized the importance of “elements of human creativity” when assessing whether an AI-generated work can be registered, such as human-made decisions about how to organize and structure AI-generated material in a final work.11 11.See, e.g., Letter from Robert J. Kasunic, U.S. Copyright Off. Rev. Bd., to Van Lindberg, Taylor Eng. Duma LLP, Zarya of the Dawn (Registration # VAu001480196), at 5–8 (Feb. 21, 2023), https://www.cop‌yright.gov/docs/zarya-of-the-daw‌n.pdf [https://perma.cc/X54U-MQ‌4F] (finding that AI-generated images in a comic book were unprotectable but the comic book could still be thinly protected as a compilation).Show More For content producers, this means that highlighting the role of generative AI in a work’s production can compromise efforts to achieve copyright registration.12 12.See, e.g., Thaler v. Perlmutter, 687 F. Supp. 3d 140, 149–50 (D.D.C. 2023) (upholding denial of copyright registration where “the record designed by plaintiff from the outset of his application for copyright registration . . . [showed] the absence of any human involvement in the creation of the work,” precluding copyrightability for AI-generated image); see also infra Subsection I.B.2 (describing instances in which acknowledging the role of AI in a work’s creation foreclosed copyright protection).Show More Failure to obtain protection essentially means that new content immediately falls into the public domain and cannot be monetized. Thus, if trends in the law continue in their likely direction, content producers will increasingly try to hide the role of AI in new creative works to ensure such works remain protectable.13 13.Disclosure to the Copyright Office and public disclosure are interrelated. The Copyright Office has begun listing registrations that explicitly state whether a work is a product of generative AI (noting that the AI-produced elements are unprotectable). These registrations are easily publicly searchable. See infra Section I.C.Show More

Should this obfuscation be considered a problem? After all, if a consumer enjoys a work like the Secret Invasion credit images, does it matter whether they know that work was produced using generative AI? Part II addresses this question, arguing that consumers seem to have a range of “process preferences”14 14.See Douglas A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harv. L. Rev. 525, 529 (2004) (examining how “consumer preferences may be heavily influenced by information regarding the manner in which goods are produced”).Show More—that is, preferences that relate to how a work was created, rather than just the work itself—that implicate the use of generative AI. One issue is ethical: consumers may prefer human-created works because of ethical concerns over AI supplanting human labor.15 15.See infra Subsection II.A.1.Show More Another issue is aesthetic: as showcased in old debates regarding the use of “mechanical reproduction” in art, human creation can confer an element of authenticity on a creative work that a machine-generated work lacks.16 16.See infra Subsection II.A.2.Show More Finally, consumers have deep-seated connections to specific artists, born out of a sense of fandom, which are undermined by the more specific example of AI-generated works that mimic an artist’s voice or style.17 17.See infra Subsection II.A.3.Show More Considering these preferences, obscuring the role of generative AI in a work’s creation may prevent a consumer from making an informed decision about whether to consume it.

But just because consumers have these preferences does not mean the law must respect them.18 18.See infra Part II (examining difficulties of determining whether consumer preferences should give rise to regulatory action).Show More Part II thus also provides a separate normative case for why consumers who care about human authorship should be taken seriously. As aesthetic and ethical theorists have argued, authorship and readership19 19.By “readership,” I mean the experience of engaging with a work of art or entertainment. See infra Section II.B.Show More are fundamentally social activities; through art, the public can engage in ongoing “dialogic” processes of self-definition, ethical development, and political engagement. Novelist and journalist Jay Caspian Kang has recently put it more plainly: “[T]he reason we read books and listen to songs and look at paintings is to see the self in another self, or even to just see what other people are capable of creating.”20 20.Jay Caspian Kang, What’s the Point of Reading Writing by Humans?, New Yorker (Mar. 31, 2023), https://www.newyorker.com/news/our-columnists/whats-the-point-of-reading-writ‌ing-by-humans; see also infra note 199 (surveying other writers’ similar perspectives).Show More Thus, even if, as some have argued, the author’s “intent” lacks significance,21 21.See infra Subsection II.B.1 (noting that postmodern theorists have questioned the importance of the individual author). See generally Roland Barthes, The Death of the Author, in Image, Music, Text 142 (Stephen Heath trans., 1977) (criticizing literary critics’ preoccupation with individual authors and instead emphasizing the importance of readers as recipients and interpreters of literary texts).Show More the author’s and reader’s basic shared humanness can be essential to allowing art to play a meaningful social and ethical function. The undisclosed use of generative AI in authoring a work22 22.Importantly, I distinguish between truly “authoring” a work—that is, generating something that is at the creative heart of the work—and using AI in a merely assistive role. Copyright’s doctrinal distinction between these two concepts corresponds well to this normative distinction. See infra Subsection II.C.2. I also explain why the use of a human ghostwriter does not pose the same problems as undisclosed AI authorship. See infra Subsection II.C.1.Show More fundamentally destabilizes this dialogue between author and reader, robbing art of its social value and turning it into an exclusively entertainment-focused commodity.23 23.See infra Subsection II.B.2 (exploring how lack of knowledge regarding a work’s provenance forces consumers to exclusively engage with works of art on market-based, rather than social, terms).Show More The argument here is not that AI authorship is inherently immoral; indeed, AI might yield a range of works that consumers enjoy. Rather, it is that such use must be disclosed in order to allow consumers to choose whether and on what terms they wish to engage with a work.

The obvious solution to the problem of undisclosed AI authorship is to provide consumers with information about a work’s provenance, so that they can make an informed choice. Part III explores various regulatory options for fostering transparency, examining their benefits and shortcomings. An affirmative disclosure regime could come about through industry self-regulation; if it is true that some consumers prefer human-made works, the market would logically step in to provide this information.24 24.See infra Subsection III.A.1 (examining private ordering solutions, such as provenance tracking and a certification regime).Show More A legislative transparency mandate would also—and more thoroughly—accomplish this task.25 25.See infra Subsection III.A.2.Show More In lieu of a comprehensive affirmative disclosure regime, the FTC could also target specific instances in which producers deceptively omit information about a work’s origins so as to mislead consumers.26 26.See infra Section III.B.Show More

An additional, and perhaps more politically feasible,27 27.See infra Section III.C (exploring barriers to legislation and FTC enforcement).Show More set of options is offered by existing intellectual property law. Such an approach would look to IP’s existing doctrines as a way of forcing information, making it costlier for producers to hide the fact that they used generative AI to produce works. In particular, litigants could take advantage of the often-ignored doctrine of copyright misuse to police those who assert that an entire work was human-created, when, in fact, it was a product of AI. Such assertions should fall within one of the categories of copyright misuse: the overclaiming of material that is in the public domain.28 28.See infra Subsection III.C.1; see also infra Subsection I.B.2 (noting that AI-generated material is inherently in the public domain due to lack of authorship, rendering many AI-derived works unprotectable or only thinly protectable).Show More Using the copyright misuse doctrine in litigation would raise the financial risks of surreptitiously using AI-generated materials, incentivizing rightsholders to disclose (and disclaim) this content.29 29.See infra Subsection III.C.1. In particular, a copyright misuse finding prevents a rightsholder from enforcing even legally protectable aspects of their work, rendering the work completely uncopyrightable and essentially valueless. See infra Subsection III.C.1.Show More Trademark law and the right of publicity could also play a role in raising the financial stakes of nontransparency. For the specific subset of AI-generated works that mimic a human artist’s voice or likeness,30 30.See infra Subsection II.A.3 (discussing examples such as “fake Drake”).Show More trademark and the right of publicity provide causes of action that could subject producers and distributors to damages.31 31.See infra Subsection III.C.2.Show More In combination, these various tools could ideally achieve a world in which information about most works’ provenance is readily accessible to consumers.

  1.  Zosha Millman, Yes, Secret Invasion’s Opening Credits Scene Is AI-Made—Here’s Why, Polygon (June 22, 2023, 7:16 PM), https://www.polygon.com/23767640/ai-mcu-secret-invas‌ion-opening-credits [https://perma.cc/5WPN-93TY]. ↑

  2.  See Angela Watercutter, Marvel’s Secret Invasion AI Scandal Is Strangely Hopeful, Wired (June 23, 2023, 9:00 AM), https://www.wired.com/story/marvel-secret-invasion-artificial-int‌elligence/. ↑

  3.  See Dani Di Placido, Marvel’s AI-Generated ‘Secret Invasion’ Sequence Sparks Backlash, Forbes (June 23, 2023, 11:47 AM), https://www.forbes.com/sites/danidiplacido/2023/06/21/t‌he-big-backlash-against-marvels-secret-invasion-explained/?sh=2ef04c17344e. ↑

  4.  Carolyn Giardina, ‘Secret Invasion’ Opening Using AI Cost “No Artists’ Jobs,” Says Studio That Made It, Hollywood Rep. (June 21, 2023, 8:12 PM), https://www.hollywoodrepo‌rter.com/tv/tv-news/secret-invasion-ai-opening-1235521299/ [https://perma.cc/3DTD-U4‌6W]. ↑

  5.  For a full discussion of what I mean by “generative AI,” see infra Section I.A. ↑

  6.  See generally Lisa Macpherson, Lies, Damn Lies, and Generative Artificial Intelligence: How GAI Automates Disinformation and What We Should Do About It, Pub. Knowledge (Aug. 7, 2023), https://publicknowledge.org/lies-damn-lies-and-generative-artificial-intellige‌nce-how-gai-automates-disinformation-and-what-we-should-do-about-it/ [https://perma.cc/9‌BNL-QN9S] (discussing the potential harm to the integrity of news through the use of generative AI); Adam Satariano & Paul Mozur, The People Onscreen Are Fake. The Disinformation Is Real, N.Y. Times (Feb. 7, 2023), https://www.nytimes.com/2023/02/07/tec‌hnology/artificial-intelligence-training-deepfake.html (describing how deepfakes make it difficult to separate reality from forgeries and enable the spread of propaganda by foreign governments); Todd C. Helmus, Artificial Intelligence, Deepfakes, and Disinformation: A Primer, RAND Corp. (July 6, 2022), https://www.rand.org/pubs/perspectives/PEA1043-1.ht‌ml [https://perma.cc/HD55-62L5] (observing that, in an increasingly polarized and fact-resistant political climate, deepfakes pose a potent threat). See also Council Regulation 2024/1689, art. 134, 2024 O.J. (L) 1, 34 (EU) (requiring creators of deepfakes to disclose use of AI). ↑

  7.  As discussed below, AI cannot be an author for legal purposes, so when I say “AI authorship,” I refer to situations in which AI has accomplished the creative work that we generally associate with human authorship. See infra Subsections I.B.2, II.C.2. ↑

  8.  See infra Subsection I.B.1; see, e.g., Lucas Bellaiche et al., Humans Versus AI: Whether and Why We Prefer Human-Created Compared to AI-Created Artwork, 8 Cognitive Rsch., 2023, at 1, 3 (observing that, across multiple artistic mediums, study participants preferred art labelled “human-created” over art labelled “AI-created”). ↑

  9.  See, e.g., Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018) (monkey that took “selfie” photos could not claim copyright for lack of standing); see also infra Subsection I.B.2 (discussing limits on copyright protections for works not produced by human beings). ↑

  10.  The Copyright Office is a regulatory body housed in the Library of Congress that is responsible for registering new works. See infra Subsection I.B.2. ↑

  11.  See, e.g., Letter from Robert J. Kasunic, U.S. Copyright Off. Rev. Bd., to Van Lindberg, Taylor Eng. Duma LLP, Zarya of the Dawn (Registration # VAu001480196), at 5–8 (Feb. 21, 2023), https://www.cop‌yright.gov/docs/zarya-of-the-daw‌n.pdf [https://perma.cc/X54U-MQ‌4F] (finding that AI-generated images in a comic book were unprotectable but the comic book could still be thinly protected as a compilation). ↑

  12.  See, e.g., Thaler v. Perlmutter, 687 F. Supp. 3d 140, 149–50 (D.D.C. 2023) (upholding denial of copyright registration where “the record designed by plaintiff from the outset of his application for copyright registration . . . [showed] the absence of any human involvement in the creation of the work,” precluding copyrightability for AI-generated image); see also infra Subsection I.B.2 (describing instances in which acknowledging the role of AI in a work’s creation foreclosed copyright protection). ↑

  13.  Disclosure to the Copyright Office and public disclosure are interrelated. The Copyright Office has begun listing registrations that explicitly state whether a work is a product of generative AI (noting that the AI-produced elements are unprotectable). These registrations are easily publicly searchable. See infra Section I.C. ↑

  14.  See Douglas A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 Harv. L. Rev. 525, 529 (2004) (examining how “consumer preferences may be heavily influenced by information regarding the manner in which goods are produced”). ↑

  15.  See infra Subsection II.A.1. ↑

  16.  See infra Subsection II.A.2. ↑

  17.  See infra Subsection II.A.3. ↑

  18.  See infra Part II (examining difficulties of determining whether consumer preferences should give rise to regulatory action). ↑

  19.  By “readership,” I mean the experience of engaging with a work of art or entertainment. See infra Section II.B. ↑

  20.  Jay Caspian Kang, What’s the Point of Reading Writing by Humans?, New Yorker (Mar. 31, 2023), https://www.newyorker.com/news/our-columnists/whats-the-point-of-reading-writ‌ing-by-humans; see also infra note 199 (surveying other writers’ similar perspectives). ↑

  21.  See infra Subsection II.B.1 (noting that postmodern theorists have questioned the importance of the individual author). See generally Roland Barthes, The Death of the Author, in Image, Music, Text 142 (Stephen Heath trans., 1977) (criticizing literary critics’ preoccupation with individual authors and instead emphasizing the importance of readers as recipients and interpreters of literary texts). ↑

  22.  Importantly, I distinguish between truly “authoring” a work—that is, generating something that is at the creative heart of the work—and using AI in a merely assistive role. Copyright’s doctrinal distinction between these two concepts corresponds well to this normative distinction. See infra Subsection II.C.2. I also explain why the use of a human ghostwriter does not pose the same problems as undisclosed AI authorship. See infra Subsection II.C.1. ↑

  23.  See infra Subsection II.B.2 (exploring how lack of knowledge regarding a work’s provenance forces consumers to exclusively engage with works of art on market-based, rather than social, terms). ↑

  24.  See infra Subsection III.A.1 (examining private ordering solutions, such as provenance tracking and a certification regime). ↑

  25.  See infra Subsection III.A.2. ↑

  26.  See infra Section III.B. ↑

  27.  See infra Section III.C (exploring barriers to legislation and FTC enforcement). ↑

  28.  See infra Subsection III.C.1; see also infra Subsection I.B.2 (noting that AI-generated material is inherently in the public domain due to lack of authorship, rendering many AI-derived works unprotectable or only thinly protectable). ↑

  29.  See infra Subsection III.C.1. In particular, a copyright misuse finding prevents a rightsholder from enforcing even legally protectable aspects of their work, rendering the work completely uncopyrightable and essentially valueless. See infra Subsection III.C.1. ↑

  30.  See infra Subsection II.A.3 (discussing examples such as “fake Drake”). ↑

  31.  See infra Subsection III.C.2. ↑

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