Pharmaceutical Companies Are Paying for the Effects of the Opioid Crisis

By: Sari Richmond

edited by: Jack Pacconi and Clark Mahoney

From 1991-2021, the opioid crisis killed almost 645,000 people through both illicit means and through prescriptions.[1] Earlier in the epidemic from 2007-2017, suits were geared against opioid manufacturers like Purdue Pharma, responsible for the creation of OxyContin. These cases were mainly personal injury suits created by addicted users who overdosed; legal representation would often argue that packaging and advertising were misleading, there were no tamper-resistant mechanisms, and companies were purposefully withholding information about how the drugs were designed to be used.[2] However, these personal injury suits were often difficult to win, especially when juries were used to assess whether the drug and drug company itself was at fault versus the user. Many jurors found it difficult to convict a drug company or distribution company if the Food and Drug Administration (FDA) had approved the drug, and often the consensus was that doctors and prescribers were responsible for arming patients with information about the prescription opioid drugs to prevent addiction. Moreover, jurors found it difficult to convict a company over singular addicts whose lifestyles were unsympathetic or who had risky behaviors in the past.[2] Over time, as the population impacted by the crisis grew and more cases were documented across a more diverse range of people, jurors found more plaintiffs to sympathize with—coupled with the emergence of babies being born with health issues by parents addicted to opioids. Following this upturn was a myriad of suits filed by the federal government, cities, states, and districts across the country.[2]

An example of larger government suits aimed at holding opioid manufacturers, distributors, and pharmacy dispensing companies accountable for their role in the epidemic is the recent settlement agreement between The City of Philadelphia and Walgreens. In April 2024, the city announced that a $110 million settlement would be paid by Walgreens in response to the 2021 suit filed. The original suit claimed that Walgreens had not adequately monitored suspicious orders for prescribed pain medication and had freely dispensed highly addictive substances without ensuring that the prescriptions were valid.[3] The official settlement agreement claims that Walgreens broke the law for “failing to monitor, report, and abstain from shipping allegedly suspicious orders of opioid pain medications, and dispensing opioid pain medications without confirming those prescriptions were issued for a legitimate medical purpose.”[4] Walgreens denied any wrongdoing, and both parties agreed to settle in order to avoid the expense and confusion of litigation.[4] Philadelphia plans to use the $110 million in a variety of ways to help the city heal from the impact of the crisis. At least $88.3 million will be "compensatory remediation" to directly address the damage allegedly caused by Walgreens’ mishandling of drugs in the case. The remaining $21.7 million will reimburse the city for its costs in pursuing the case.[5] 

Prior to this settlement, many other states and cities have settled with companies including CVS and drug makers Teva and Allergan.[3] San Francisco, Illinois, Texas, Florida, and Nevada have received the most substantial payouts from assortments of drug companies and distribution chains. Similar to the plans announced by Philadelphia, each state and city has its own ideas of how to best use the settlement funds to benefit members of the community and restore funds to the government. In Nevada, about $98.1 million will be used to help finance opioid recovery programs through the state Department of Health and Human Services.[6]  

Throughout these cases, similar approaches were used when governments filed cases against firearm and tobacco companies.[2] The first strategy was often used in firearm cases when it was alleged that oversaturation of the market by a product without implementing proper control over distribution would lead to black market sales being made. This was argued in tandem with the idea that drug companies must have known that the volume of drugs being produced could not only be satiating rightfully prescribed patients.[2] The second approach used was a frequent fraud claim that deemed drug companies’ business practices deceptive, a proven effective strategy when battling tobacco companies. Under consumer protection laws, governments alleged that these companies made misleading comments about how addictive these drugs truly were, and that this was done purposefully to mislead prescribers and consumers alike. Alongside this idea of poor business practices, governments argued that these drug companies failed to adhere to the federal Controlled Substances Act, which requires tracking and appropriate reporting for suspicious orders. Though this strategy was eventually successful, it was considerably more difficult to prove than in previous tobacco suits where leaked evidence showed high-level employees explicitly seeking to understate its addictiveness and manipulate nicotine levels in the product. In the opioid cases, lawyers were mainly working with evidence obtained through investigative reporting, some statements from previous smaller settlements, and the idea that marketing strategies remained consistent despite increasing evidence of opioids’ addictive and harmful properties.[2] Finally, it was argued that the practices of these companies actively cost city, county, and state governments excessive amounts of money. This strategy was wildly more successful in this instance than in cases concerning tobacco or firearm companies because it was easier to show the government was burdened with medical and law-enforcement costs. Moreover, government funding for unnecessary prescriptions under public insurance programs directly fed into drug companies’ profits.[2] 

Overall, the evolution of suits against drug production and distribution companies as well as distribution facilities like pharmaceutical chains has morphed as the impact of the opioid epidemic has morphed. Starting from personal injury cases that struggled to gain traction against juries who oftentimes had issues discerning fault between consumers, prescribers, producers, and distributors, legal success against drug companies has come a long way. Employing strategies used in cases against tobacco and firearm companies to prove the drug companies’ purposeful misleading of the public throughout the crisis, failure to monitor oversaturation and unnecessary prescription of the products, and impact on government funds, payouts have begun to settle across many cities, counties, and states. These settlements have begun funding programs to repair communities on multiple levels and repay governments for losses accrued throughout the past few decades.    

Notes:

1. “Understanding the Opioid Overdose Epidemic | Opioids | CDC.” n.d. Centers for Disease Control and Prevention. Accessed April 21, 2024.

2. “Drug Companies' Liability for the Opioid Epidemic.” 2020. NCBI.

3. “Philadelphia to Receive 110 Million Settlement from Walgreens in Lawsuit Over Opioid Crisis.” Accessed April 21, 2024. Gazett Extra. 

4. n.d. Wikipedia. Accessed April 21, 2024.

5. “Walgreens Inks 110M Deal to End Philly Opioid Crisis Suit.” 2024. Law360.

6. “Nevada secures $285 million opioid settlement with Walgreens, bringing total settlements to $1 billion.” 2023. PBS. 

Bibliography:

n.d. Wikipedia. Accessed April 21, 2024. https://www.phila.gov/media/20240419103742/Complete_with_DocuSign_Execution_Copy_Philad.pdf.

“Drug Companies' Liability for the Opioid Epidemic.” 2020. NCBI. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7479783/.

“Nevada secures $285 million opioid settlement with Walgreens, bringing total settlements to $1 billion.” 2023. PBS. https://www.pbs.org/newshour/health/nevada-secures-285-million-opioid-settlement-with-walgreens-bringing-total-settlements-to-1-billion.

“Philadelphia to Receive 110 Million Settlement from Walgreens in Lawsuit Over Opioid Crisis.” Accessed April 21, 2024. Gazett Extra. https://www.gazettextra.com/news/nation_world/philadelphia-to-receive-110-million-settlement-from-walgreens-in-lawsuit-over-opioid-crisis/article_99146e33-7847-5ac3-9277-25854299eb41.html.

“Understanding the Opioid Overdose Epidemic | Opioids | CDC.” n.d. Centers for Disease Control and Prevention. Accessed April 21, 2024. https://www.cdc.gov/opioids/basics/epidemic.html.

“Walgreens Inks 110M Deal to End Philly Opioid Crisis Suit.” 2024. Law360. https://www.law360.com/articles/1827618/walgreens-inks-110m-deal-to-end-philly-opioid-crisis-suit.

Legacy Admissions: How Affirmative Action Lives on for the Privileged

By: Morgan Dreher

Edited by: Colin Crawford and Isabel Niemer

In a landmark decision during the summer of 2023, the Supreme Court banned Affirmative Action in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. According to the decision, race-conscious admissions are unconstitutional under the Equal Protection Clause of the 14th Amendment. [1] It seems that the conservative court has set aside equity concerns and is choosing to embrace the United States tradition of meritocracy, right? Yet, it appears that not all forms of Affirmative Action are gone. Famously referred to by Rep. Alexandria Ocasio-Cortez as “affirmative action for the privileged,” legacy admissions were excluded from the SFFA v. Harvard decision and remain a prominent practice in the United States, despite their mention in the case. [2] With Affirmative Action banned due to the unlawful favoring of certain groups, why are we continuing to give preference to the children of alumni and donors? Now that the equalizing force of Affirmative Action is gone, a widespread uproar against the hypocrisy of continuing legacy admissions has surfaced to challenge the century-old practice.

Legacy admissions originated in the 1920’s, and the intention was unethical from the start. As the presence of Catholic and Jewish immigrants was growing in the United States, elite institutions, which were mainly Protestant, sought to protect their religious exclusivity. [3] Since Catholic people were quick to form their own colleges, legacy policies were largely targeted at keeping Jewish students out of American universities. The Ivy League started as exclusively wealthy, white, and Protestant, and legacy policies were intended to ensure that these identities continued to dominate top universities. [4] As a result, legacy admissions also effectively slowed the representation of other races and religions in Ivy League schools. [5] Today, universities claim different goals, citing that legacies help them build a sense of family loyalty, gauge interest levels of students to lower their acceptance rates, and acquire university donations. [6][7]

While these may be the current publicized reasons universities support legacy admissions, the other effects are quite problematic. For example, legacy admissions perpetuate social stratification, as legacy admits are typically wealthy and white. [8] According to a study from a Harvard research group, legacy students are almost four times more likely to be accepted than students with comparable test scores, meaning the advantage is extreme. [9] This is impacting a drastic portion of the student bodies at competitive schools, as PBS reports that 43% of Harvard students had some sort of legacy status. [10] Some colleges will even offer scholarships to legacies, [11] even though legacy students do not have higher qualifications or demonstrate better performance once arriving at the university. [12] Furthermore, America’s top institutions are the most likely to consider legacy status in admissions. [13] Degrees from these universities are often linked to higher income and a greater likelihood of achieving a leadership position, meaning the integrity of the admissions practices at these institutions holds a significant societal impact. [14] The number of colleges partaking further exacerbates the issue. In 2010, most liberal arts colleges and research institutions showed a preference for legacy students. [15] 

The combination of these disturbing statistics and the erasure of Affirmative Action has prompted states and universities to reconsider whether they should incorporate legacy status into their admissions practices. As of now, the only two states to bar legacy admissions are Colorado and Virginia. Colorado took this step in 2021, while Virginia’s proposal recently passed unanimously through both chambers of their legislature, and will take effect in July of 2024. [16] Both states only banned the practice in their public universities, but a few private institutions have enacted similar bans, such as MIT and Johns Hopkins University. [17][18] More change is on the horizon, with states such as Connecticut, California, Massachusetts, Maryland, and New York currently debating legislation for bans in both public and private schools. [19] Some of these states must battle strong opposition from the country’s top universities, including Harvard and Yale. The fate of many of these universities likely rests on the Department of Education’s current investigation of Harvard, which is looking to determine whether legacy admissions promote racial discrimination. [20] If Harvard’s practices are found to perpetuate discrimination, other schools will likely expunge legacy admissions before facing similar scrutiny. 

What about a federal ban? Although this usually seems far-fetched because of Congress’ typical sluggish pace, the bipartisan federal bill introduced to Congress in November 2023 may stand a chance. [21] Support for the issue is widespread, as a Pew Research Center Study reported that 75% of Americans disagree with legacy admissions. [22] Additionally, the issue receives support from both sides of the political aisle, as Democrats zone in on equity concerns and Republicans focus on meritocracy. Either way, the blatant hypocrisy of legacy admissions despite the SFFA v. Harvard decision is glaring, and people from all parties are provoked. If the Supreme Court claims preferential treatment should not be given based on membership to underprivileged communities, then the most privileged members of society certainly should not be given an extra advantage. 

Notes:

1. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).

2. Michael D. Shear and Anemona Hartocollis, "Education Dept. Opens Civil Rights Inquiry into Harvard’s Legacy Admissions," New York Times, Late Edition (East Coast), 2023.  http://turing.library.northwestern.edu/login?url=https://www.proquest.com/newspapers/education-dept-opens-civil-rights-inquiry-into/docview/2841610164/se-2. 

3. Erin Blakemore, “Why do colleges have legacy admissions? It started as a way to keep out Jews,” National Geographic, 2023. https://www.nationalgeographic.com/history/article/legacy-admissions-college-anti-semitism-united-states. 

4. Allan Ornstein, “Wealth, Legacy and College Admission,” Soc 56, 335–339, (2019). https://doi.org/10.1007/s12115-019-00377-2. 

5. Ornstein, “Wealth, Legacy and College Admission,” 2019.

6. Shear and Hartocollis, "Education Dept. Opens Civil Rights Inquiry into Harvard’s Legacy Admissions," 2023.

7. Gabriela Goodman and Sarah Reber, “Who uses legacy admissions? | Brookings.” Brookings Institution, 2024. https://www.brookings.edu/articles/how-widespread-is-the-practice-of-giving-special-consideration-to-relatives-of-alumni-in-admissions/. 

8. Deborah L. Coe and James D. Davidson, “The Origins of Legacy Admissions: A Sociological Explanation,” Review of Religious Research 52, no. 3 : 233–47, 2011. http://www.jstor.org/stable/23055549.

9. Joan E. Greve, “'Affirmative action for the privileged': why Democrats are fighting legacy admissions,” The Guardian, 2023. https://www.theguardian.com/education/2023/aug/11/college-legacy-admissions-affirmative-action-democrats. 

10. Geoff Bennett and Courtney Norris, “Affirmative action ruling prompts new push to end legacy admissions,” PBS, 2023. https://www.pbs.org/newshour/show/affirmative-action-ruling-prompts-new-push-to-end-legacy-admissions.

11. Goodman and Reber, “Who uses legacy admissions?” 2024. 

12. E. J. Castilla and E. J. Poskanzer, “Through the Front Door: Why Do Organizations (Still) Prefer Legacy Applicants?” American Sociological Review, 87(5), 782-826, 2022. https://doi.org/10.1177/00031224221122889. 

13. Goodman and Reber, “Who uses legacy admissions?” 2024.

14. Natasha Warikoo, "What Meritocracy Means to its Winners: Admissions, Race, and Inequality at Elite Universities in The United States and Britain" Social Sciences 7, no. 8: 131, 2018. https://doi.org/10.3390/socsci7080131. 

15. Castilla and Poskanzer, “Why Do Organizations (Still) Prefer Legacy Applicants?” 2022.

16. Laura Spitalniak, “A look at 5 states weighing legacy admissions bans,” Higher Ed Dive, 2024. https://www.highereddive.com/news/5-states-weigh-legacy-admissions-bans/711428/. 

17. Spitalniak, “5 states weighing legacy admissions bans,” 2024. 

18. Blakemore, “Why do colleges have legacy admissions? It started as a way to keep out Jews,” 2023. 

19. Spitalniak, “5 states weighing legacy admissions bans,” 2024. 

20. Marissa Zupancic, “US Education Department investigating Harvard legacy admissions policy for racial discrimination,” Jurist, 2023. https://www.jurist.org/news/2023/07/us-education-department-investigating-harvard-legacy-admissions-policy-for-racial-discrimination/. 

21. Liam Knox, “State bans on legacy preferences gain bipartisan steam,” Inside Higher Ed, 2024. https://www.insidehighered.com/news/admissions/traditional-age/2024/01/29/state-bans-legacy-preferences-gain-bipartisan-steam. 

22. Goodman and Reber, “Who uses legacy admissions?” 2024.

Bibliography:

Bennett, Geoff, and Courtney Norris. “Affirmative action ruling prompts new push to end legacy admissions.” PBS, PBS, July 13, 2023. https://www.pbs.org/newshour/show/affirmative-action-ruling-prompts-new-push-to-end-legacy-admissions.  

Blakemore, Erin. “Why do colleges have legacy admissions? It started as a way to keep out Jews.” National Geographic, 2023. https://www.nationalgeographic.com/history/article/legacy-admissions-college-anti-semitism-united-states. 

Castilla, E. J., & Poskanzer, E. J.. Through the Front Door: Why Do Organizations (Still) Prefer Legacy Applicants? American Sociological Review, 87(5), (2022): 782-826. https://doi.org/10.1177/00031224221122889. 

Coe, Deborah L., and James D. Davidson. “The Origins of Legacy Admissions: A Sociological Explanation.” Review of Religious Research 52, no. 3 (2011): 233–47. http://www.jstor.org/stable/23055549. 

Greve, Joan E.. “'Affirmative action for the privileged': why Democrats are fighting legacy admissions.” The Guardian, 2023. https://www.theguardian.com/education/2023/aug/11/college-legacy-admissions-affirmative-action-democrats. 

Goodman, Gabriela, and Sarah Reber.“Who uses legacy admissions? | Brookings.” Brookings Institution, 2024. https://www.brookings.edu/articles/how-widespread-is-the-practice-of-giving-special-consideration-to-relatives-of-alumni-in-admissions/. 

Knox, Liam. “State bans on legacy preferences gain bipartisan steam.” Inside Higher Ed, 2024. https://www.insidehighered.com/news/admissions/traditional-age/2024/01/29/state-bans-legacy-preferences-gain-bipartisan-steam. 

Ornstein, A. “Wealth, Legacy and College Admission.” Soc 56, 3 (2019): 35–339. https://doi.org/10.1007/s12115-019-00377-2. 

Shear, Michael D. and Anemona Hartocollis. "Education Dept. Opens Civil Rights Inquiry into Harvard’s Legacy Admissions." New York Times, Jul 26, 2023, Late Edition (East Coast). https://www.nytimes.com/2023/07/25/us/politics/harvard-admissions-civil-rights-inquiry.html. 

Spitalniak, Laura. “A look at 5 states weighing legacy admissions bans.” Higher Ed Dive, 2024. https://www.highereddive.com/news/5-states-weigh-legacy-admissions-bans/711428/. 

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).

Warikoo, Natasha. "What Meritocracy Means to its Winners: Admissions, Race, and Inequality at Elite Universities in The United States and Britain" Social Sciences 7, no. 8: 131, 2018. https://doi.org/10.3390/socsci7080131. 

Zupancic, Marissa. “US Education Department investigating Harvard legacy admissions policy for racial discrimination.” Jurist, 2023. https://www.jurist.org/news/2023/07/us-education-department-investigating-harvard-legacy-admissions-policy-for-racial-discrimination/. 

Implications of the JetBlue/Spirit Merger Blocking

By: Dominic Miranda

Edited by: Clark Mahoney and Connor Tooman

In March of 2023, a civil antitrust lawsuit was filed by several states and the United States Department of Justice (DOJ), including California, New York, Maryland, and Massachusetts, along with the District of Columbia, to prevent Spirit Airlines from merging with JetBlue Airways Corporation.[1] The lawsuit, intended to block the $3.8 billion deal, was filed in the Massachusetts District Court, with consumer protection as the primary reasoning.[2] A trial was initiated later in October, in which both sides pleaded their cases for 17 days.[2] The judge in this case faced an economic dilemma since the airlines in question have valid arguments to consider. However, on January 16th, 2024, JetBlue’s intended acquisition of Spirit Airlines was found to be unlawful and blocked by the U.S. District Court for the District of Massachusetts, citing the probability of “anticompetitive harm”  in the form of an increase in fares that would result from the merger.[2] The overall goal of the Antitrust Division of the DOJ is to preserve the integrity of the economy, and they overlook all potential airline mergers. In this case, they believe that allowing this merger to go through would be a net negative for the US economy, so this article will investigate whether this harm is likely to manifest, as well as what comes next for these airlines. 

According to the Federal Aviation Administration (FAA), “a merger combines all aspects of two airlines’ operations into a new entity under a single operating certificate”, and it is their job to award this certificate based on safety standards.[3] JetBlue sought a merger with Spirit Airlines to improve its standing in the aviation industry, which many other airlines have done and will try to do with these procedures. The merging of airlines is not uncommon in the United States, as it has had 7 successful purchases in the industry within the last 8 years, with the most notable being the purchase of Virgin America by Alaska Airlines.[4] This leads many to question the Massachusetts District Court’s decision by asking “What’s different about this one?”

In the recent past, major players in the aviation industry like American Airlines, United, Delta, and others have been involved in mergers and acquisitions.[4] For the most part, the intent is to help with expanding their company in different ways, like their fleet, number of pilots, employees, or occupied airport gates. According to Khezrimotlagh et al., “There are two views in the literature to address airline mergers’ drives: efficiency gains and market power gains”.[5] In their study, they compared major US airlines pre and post-merger in terms of their technical efficiency, which was decomposed into the production efficiency and consumption efficiency.[5] It was found that for four major US airlines (Delta, Southwest, American, and United), their production and consumption efficiency scores increased post-merger across the board, with the consumption efficiency being more substantial.[5] This indicates a successful economic merger from these airlines’ point of view. From the recent track record, it appears that well-planned and executed mergers or acquisitions can have a beneficial effect on the health of major airlines in the US, and can be shrewd business decisions. Airlines have a great incentive to participate in a merger of sorts, and airlines’ defense of mergers will likely include the claim that the improved efficiencies will benefit the consumers in the long run. 

Additionally, Spirit Airlines is looking to push through its own financial struggles. Spirit has “lost more than $1.6 billion” since 2019, and Bank of America analysts are predicting that the Spirit stock will “underperform,” which suggests “there is a risk the airline might not be able to make debt payments due in September 2025”.[6] Spirit having lost money over the past four years is detrimental for the airline. They seem to be struggling to return back to pre-pandemic levels of consumption, which can give us clues as to why they intend to sell their assets. Spirit’s share prices were down 15-16% on Friday, January 26th, reflecting the lack of confidence that investors have in Spirit as its own entity.[7] By selling the Spirit fleet, employees, and gates to JetBlue, they are cutting their losses and shifting the management onto JetBlue. Now, without the possibility of a merger, there is a chance that Spirit will go bankrupt and the market will lose out on the assets that they bring to consumers. The airlines’ counsel would likely use this to point out that in the event Spirit’s assets exit the market, it would be even worse for competition and the consumer than an acquisition. This may be the only way for the assets to be salvaged. 

Before analyzing the impact on competitors’ prices that a merger between JetBlue and Spirit would have,  one should look at the results that past mergers have had on fares. In a study conducted by Haobie Fan on the 2010 United-Continental merger, “the results of price effects indicate that merging firms and rivals respond differently to the merger in … three types of markets, hub markets, leisure markets, and big-city markets”.[8] Essentially, the effect that this merger had on prices was too varied to conclude a directional relationship. The companies involved touting that “economic analysis shows that JetBlue’s presence on a nonstop route decreases legacy fares by ~16%”, indicating that the change could keep fares low.[9] Despite this, statistics like these should be taken with a grain of salt, as they were likely found in an airline-sponsored study. Another study by Das concluded that “the merger between American and US Airways has been beneficial to the consumers in terms of lower average prices in the larger markets.”[10] These examples seem to indicate that a major airline merger will not always lead to increased fares, which can negate the potential anticompetitive harm mentioned by the Massachusetts judge. 

As of Friday, January 26th, JetBlue and Spirit were looking to appeal the judge’s decision, but JetBlue is currently threatening to terminate the deal due to disagreements on terms, forcing them to pay Spirit $470 million in termination fees.[11] Although the terms of the contract included a clause to pursue an appeal, the likelihood of an appeal passing is quite low according to experts.[6] Furthermore, the DOJ had already blocked a partnership between American Airlines and JetBlue in the US northeast, where they would agree to avoid each other in major markets, with the DOJ taking this as a clear violation of their antitrust stance.[12] According to some, these serve as indicators that the near future of mergers is looking dim, with “Deutsche Bank analyst Michael Linenberg [saying] the government’s success in blocking [both deals] ‘are likely to cast a shadow over future airline (merger and acquisition) activity’.”[6] Airlines that are still reeling from the pandemic may face even more difficulties completing mergers intended to recoup their losses. For instance, although it is not entirely certain what the DOJ will do, Alaska and Hawaiian Airlines should brace for legal hurdles of their own with their intended merger based on recent rulings.[6] The recent wave of antitrust lawsuits is part of a concerted effort by the current Biden administration, and the survivability of deals like these likely depends on who is in charge, given that the president appoints the head of the DOJ, the attorney general.

Notes:

1. U.S. Department of Justice Office of Public Affairs. “Justice Department Sues to Block JetBlue’s Proposed Acquisition of Spirit.” Last updated March 7, 2023. https://www.justice.gov/opa/pr/justice-department-sues-block-jetblue-s-proposed-acquisition-spirit.

2. U.S. Department of Justice Office of Public Affairs. “Justice Department Statements on District Court Decision to Block JetBlue’s Acquisition of Spirit Airlines.” January 16, 2024. https://www.justice.gov/opa/pr/justice-department-statements-district-court-decision-block-jetblues-acquisition-spirit.

3. Federal Aviation Administration. “How Does That Work? The FAA’s Safety Role in Airline Mergers.” Accessed January 28, 2024. https://www.faa.gov/newsroom/how-does-work-faas-safety-role-airline-mergers.

4. Airlines For America. “U.S. Airline Mergers and Acquisitions.” Accessed January 28, 2024. https://www.airlines.org/dataset/u-s-airline-mergers-and-acquisitions/.

5. Khezrimotlagh, Dariush, Sepideh Kaffash, and Joe Zhu. “U.S. Airline Mergers’ Performance and Productivity Change.” Journal of Air Transport Management, May 9, 2022. https://www.sciencedirect.com/science/article/pii/S0969699722000473#sec4.

6. Koenig, David, and The Associated Press. “JetBlue’s Failed $3.8 Billion Merger Could Send Spirit Airlines into Bankruptcy, Wall Street Analysts Warn.” Fortune, January 18, 2024. https://fortune.com/2024/01/18/will-spirit-airlines-go-bankrupt-chapter-11-jetblue-merger/.

7. Sider, Allison. “JetBlue Warns It Might Scrap Spirit Airlines Takeover next Week after Merger Block.” Wall Street Journal, January 26, 2024. https://www.wsj.com/business/airlines/jetblue-warns-it-might-scrap-spirit-airlines-takeover-next-week-after-merger-block-9bd6bd25.

8. Fan, Haobin. “When Consumer Type Matters: Price Effects of the United-Continental Merger in the Airline Industry.” Economics of Transportation, February 12, 2020. https://www.sciencedirect.com/science/article/pii/S2212012219300875#sec5.

9. JetBlue + Spirit. “The Best of Both Airlines.” April 13, 2023. https://lowfaresgreatservice.com/.

10. Das, Somnath. “Effect of Merger on Market Price and Product Quality: American and US Airways.” Review of Industrial Organization 55, no. 3 (July 10, 2019): 339–74. https://doi.org/10.1007/s11151-019-09717-2.

11. AP News. “JetBlue Tells Spirit Airlines That It May Terminate Its $3.8 Billion Buyout Offer Challenged by US.” January 26, 2024. https://apnews.com/article/spirit-airlines-jetblue-merger-warning-2d34827417dfaab8dd781d9671293fca.

12. Koenig, David. “American Airlines and JetBlue Must Abandon Their Partnership in the Northeast, Federal Judge Rules.” AP News, June 21, 2023. https://apnews.com/article/airlines-american-jetblue-antitrust-competition-04516894671f1f44461ffaa76663dbf0.

Bibliography:

Airlines For America. “U.S. Airline Mergers and Acquisitions.” Accessed January 28, 2024. https://www.airlines.org/dataset/u-s-airline-mergers-and-acquisitions/.

AP News. “JetBlue Tells Spirit Airlines That It May Terminate Its $3.8 Billion Buyout Offer Challenged by US.” January 26, 2024. https://apnews.com/article/spirit-airlines-jetblue-merger-warning-2d34827417dfaab8dd781d9671293fca.

Das, Somnath. “Effect of Merger on Market Price and Product Quality: American and US Airways.” Review of Industrial Organization 55, no. 3 (July 10, 2019): 339–74. https://doi.org/10.1007/s11151-019-09717-2.

Fan, Haobin. “When Consumer Type Matters: Price Effects of the United-Continental Merger in the Airline Industry.” Economics of Transportation, February 12, 2020. https://www.sciencedirect.com/science/article/pii/S2212012219300875#sec5.

Federal Aviation Administration. “How Does That Work? The FAA’s Safety Role in Airline Mergers.” Accessed January 28, 2024. https://www.faa.gov/newsroom/how-does-work-faas-safety-role-airline-mergers.

JetBlue + Spirit. “The Best of Both Airlines.” April 13, 2023. https://lowfaresgreatservice.com/.

Khezrimotlagh, Dariush, Sepideh Kaffash, and Joe Zhu. “U.S. Airline Mergers’ Performance and Productivity Change.” Journal of Air Transport Management, May 9, 2022. https://www.sciencedirect.com/science/article/pii/S0969699722000473#sec4.

Koenig, David. “American Airlines and JetBlue Must Abandon Their Partnership in the Northeast, Federal Judge Rules.” AP News, June 21, 2023. https://apnews.com/article/airlines-american-jetblue-antitrust-competition-04516894671f1f44461ffaa76663dbf0.

Koenig, David, and The Associated Press. “JetBlue’s Failed $3.8 Billion Merger Could Send Spirit Airlines into Bankruptcy, Wall Street Analysts Warn.” Fortune, January 18, 2024. https://fortune.com/2024/01/18/will-spirit-airlines-go-bankrupt-chapter-11-jetblue-merger/.

Sider, Allison. “JetBlue Warns It Might Scrap Spirit Airlines Takeover next Week after Merger Block.” Wall Street Journal, January 26, 2024. https://www.wsj.com/business/airlines/jetblue-warns-it-might-scrap-spirit-airlines-takeover-next-week-after-merger-block-9bd6bd25.

U.S. Department of Justice Office of Public Affairs. “Justice Department Statements on District Court Decision to Block JetBlue’s Acquisition of Spirit Airlines.” January 16, 2024. https://www.justice.gov/opa/pr/justice-department-statements-district-court-decision-block-jetblues-acquisition-spirit.

U.S. Department of Justice Office of Public Affairs. “Justice Department Sues to Block JetBlue’s Proposed Acquisition of Spirit.” Last updated March 7, 2023. https://www.justice.gov/opa/pr/justice-department-sues-block-jetblue-s-proposed-acquisition-spirit.

HIGH SCHOOL ESSAY CONTEST WINNER: First Amendment and Artificial Intelligence: Social Media Regulation

By: Chloe Kim

When debating the political influence of social media, one cannot overlook the pervasive spread of viral misinformation across billions of social media posts. Behind the scenes are the algorithms attempting to censor such powerful, politically motivated content—artificial intelligence programs that can manipulate, suppress, and censor any content at unprecedented speed and accuracy, potentially becoming a covert tool for social engineering. This technology has made the intersection between false information and the First Amendment much more complex. In light of the upcoming 2024 presidential elections, American lawmakers need to reconsider legislation on the role of artificial intelligence in social media regulation.

During the 2020 elections, American democracy fiercely grappled with false information on social media. By weaponizing social media, Russian interference disseminated harmful information, increasing social unrest and political polarization. Social media platforms raced to tackle such interference with content regulation, with Facebook removing about 75,000 posts associated with these accounts. (Gleicher 2019)

In 2024, the threat of misinformation to the integrity of American elections is even more apparent with generative AI, which allows anyone to produce realistic malicious content. Back in January, a fake AI-generated image of Donald Trump sitting next to Jeffrey Epstein on the disgraced financier and sex offender’s private jet went viral on Facebook. The following month, a “Democratic consultant working for a long-shot rival admitted that he commissioned an AI-generated robocall impersonating President Joe Biden that sought to discourage thousands of voters from participating in New Hampshire’s primary.” (Barrett and Hendrix 2024)

Consequently, social media companies are being urged to employ more rigorous measures to combat misinformation. In a call to action, The Global Coalition for Tech Justice criticized tech companies for failing to “implement adequate measures to protect people and democratic processes from tech harms, including disinformation, hate speech, and influence operations that ruin lives and undermine democratic integrity.” (Digital Action 2024) In response, the government and social media companies are developing projects to build an artificial intelligence service that combats false information. As part of 'The Convergence Accelerator Program, Track F was launched by the Biden Administration to effectively "prevent, mitigate, and adapt to critical threats in our communications system," garnering millions in funding. (Convergence Accelerator Office, n.d.)

Under Section 230 of the federal Communications Decency Act, it is entirely constitutional for social media companies to employ such artificial intelligence to regulate content. Section 230 protects online computer services concerning third-party content its users generate. (“47 U.S.C. 230 - Protection for private blocking and screening of offensive material - Content Details - USCODE-2011-title47-chap5-subchapII-partI-sec230”, n.d.) This statute was drafted in the decade of newly developing internet platforms that faced the dilemma between moderating third-party content at risk of being held liable or refusing to moderate third-party content at risk of eroding user experience with obscene content. Section 230 is touted as "the 26 words that made the internet," shielding growing internet corporations from destructive legal ramifications and nurturing them into the giant industry they constitute today. (Kosseff 2019)

However, many fear that Section 230 is unable to keep up with the times—and that the unprecedented advancement of social media and artificial intelligence calls for a potential re-evaluation of the often overlooked sub-clause under Section 230: "to remove disincentives for the development and utilization of blocking and filtering technologies." Current artificial intelligence algorithms are proving inconsistent and inaccurate, interfering with the First Amendment under unreasonable grounds. Without human input, even the world's leading artificial intelligence systems struggle with unintended censorship. Michael J. Abramowitz, president of Freedom House, points out that "AI can be used to supercharge censorship, surveillance, and the creation and spread of disinformation.” (Chandran and Tabary 2023) Artificial intelligence can censor information before it is posted through automated filtering, which poses even more significant risks to the First Amendment as it completely suppresses public discourse. (Simon 2020)

Overall, a valid argument can be made that the vast power of artificial intelligence erodes the core of the First Amendment. According to the libertarian approach, citizens organically adopt a self-regulatory framework known as the "marketplace of ideas" that "[lets] truth and falsity grapple on the open market, and the truth will rise to the top.” (Lenard, Lam, and Kosseff 2023) Rather than empower people to make independent, informed votes, automated censorship may manipulate mass sentiment by arbitrarily restricting access to information. Such criticism of Section 230 has compelled lawmakers to introduce amendments to Section 230. One such case, the Stop the Censorship Act, introduced in 2022, attempts to “limit a social media company's immunity from liability for screening and blocking offensive content on its platform.” (117th Congress)

In the same vein, it is important to recognize that the complex issue of social media censorship is not black and white: the removal or excessive editing of Section 230 would restrict freedom of speech by forcing companies to strictly moderate content in fear of legal responsibility. Although more discussion is needed to fully weigh both perspectives, it is clear that the repercussions of artificial intelligence censorship threaten the First Amendment. "Imagine a world where your word processor prevents you from analyzing, criticizing, lauding, or reporting on a topic deemed 'harmful' by an AI programmed only to process ideas that are 'respectful and appropriate for all.'"

The dangers of false digital information have only been exacerbated by the emergence of artificial intelligence. With the upcoming elections in 2024, American lawmakers must now consider how artificial intelligence has arguably changed the context of Section 230. The future of over 300 million Americans lay in the hands of legislators and how they decide to regulate the use of artificial intelligence in social media algorithms. 

Bibliography:

Barrett, Paul, and Justin Hendrix. 2024. “AI Isn't Our Election Safety Problem, Disinformation Is.” Time. https://time.com/6914961/ai-2024-election-disinformation/.

Chandran, Rina, and Zoe Tabary. 2023. “AI 'supercharges' online disinformation and censorship, report warns.” Reuters. https://www.reuters.com/article/idUSL8N3B53P6/.

Convergence Accelerator Office. n.d. “NSF Convergence Accelerator Phases I and II for the 2021 Cohort.” National Science Foundation. Accessed April 22, 2024. https://nsf-gov-resources.nsf.gov/solicitations/pubs/2021/nsf21572/nsf21572.pdf?VersionId=YB5eK0j6Izanw9fLsDNxxrpz9TF5bhSB.

Digital Action. 2024. Global Coalition for Tech Justice. https://yearofdemocracy.org/a-hundred-days-into-the-elections-megacycle-and-tech-platforms-are-failing-the-biggest-test-of-2024/.

“47 U.S.C. 230 - Protection for private blocking and screening of offensive material - Content Details - USCODE-2011-title47-chap5-subchapII-partI-sec230.” n.d. GovInfo. Accessed April 22, 2024. https://www.govinfo.gov/app/details/USCODE-2011-title47/USCODE-2011-title47-chap5-subchapII-partI-sec230/summary.

Gleicher, Nathaniel. 2019. “Removing More Coordinated Inauthentic Behavior From Iran and Russia.” Meta. https://about.fb.com/news/2019/10/removing-more-coordinated-inauthentic-behavior-from-iran-and-russia/.

Kosseff, Jeff. 2019. The Twenty-Six Words That Created the Internet. N.p.: Cornell University Press.

Lenard, Thomas, Sarah Lam, and Jess Kosseff. 2023. “Freedom of Speech in the Digital Age with Professor Jeff Kosseff - Publications.” The Technology Policy Institute. https://techpolicyinstitute.org/publications/privacy-and-security/freedom-of-speech-in-the-digital-age-with-professor-jeff-kosseff/.

117th Congress. n.d. “H.R.8612.” Congress.gov. Accessed April 22, 2024. https://www.congress.gov/bill/117th-congress/house-bill/8612.

Simon, Eva. 2020. “​Upload Filters Are Back, and We Are Still Strongly Against Them.” Civil Liberties Union for Europe. https://www.liberties.eu/en/stories/uploa-filter-back-eu-2020/18938.