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57 Colum. J.L. & Soc. Probs. [i] (2023)

handle is hein.journals/collsp57 and id is 1 raw text is: COLUMBIA JOURNAL OF LAW AND SOCIAL PROBLEMS Volume 57 Number 1 Fall 2023 Copyright C 2023 by the Columbia Journal of Law and Social Problems, Inc. Lethal Paralytics and the Censorship of Suffering..........................1 Approximately two dozen states utilize a three-drug lethal injection method to execute condemned persons. This protocol consists of (i) an anesthetic or sedative; (ii) a paralytic; and (iii) potassium chloride (which stops the heart). The purpose of the paralytic is purely cosmetic: it prevents witnesses from having to watch the condemned person convulse as they die. This Note argues that when a condemned person chooses to refuse a lethal paralytic, they are engaging in First Amendment-protected expressive speech. State regulations requiring the use of a paralytic warrant strict scrutiny because they (i) restrict speech based on subject matter; (ii) are a form of prior restraint; (iii) discriminate based on viewpoint; and (iv) compel speech. The state's interest in requiring the paralytic-to censor the violence of the condemned person's death-is neither legitimate nor compelling. As such, lethal paralytic requirements fail strict scrutiny and violate the First Amendment. Part I of this Note outlines the history of capital punishment and the advent of lethal injection in the United States. It details the various constitutional challenges that have been brought to bear against lethal injection protocols generally, and the use of paralytics specifically. Part II examines the constitutional rights of incarcerated persons and considers whether an individual's decision to refuse a paralytic can be considered expressive speech under the Spence-Johnson test. Next, it contemplates the appropriate standard of review for regulations requiring the use of a paralytic. Finally, it examines whether lethal paralytic requirements can survive strict scrutiny or any lesser standard of review. Part III explores the policy implications of recognizing a condemned person's right to refuse lethal paralytics. Not only would acknowledging such a right advance the fundamental values of the First Amendment, it would also help to prevent needless pain and suffering. He/She/They Say Gay: A First Amendment Framework for Regulating Classroom Speech on Gender and Sexuality..............................................................................................58 In an era of profound polarization over the nature of gender and sexuality, and children's exposure to discussions thereof, states and school boards of all political inclinations are moving swiftly to regulate educators' speech about such topics in public classrooms. Liberal authorities enact pronoun policies requiring teachers to use transgender and non-binary students' gender-affirming names and pronouns. Conservative authorities, meanwhile, largely prohibit teachers from talking about gender and sexuality through anti-queer curriculum (or Don't Say Gay) laws. Despite their opposing goals, these policies seem constitutionally indistinguishable on their face-both are regulations of educators' classroom speech, subject to the same First Amendment standards. This Note argues that constitutional lines can and should be drawn between these policies based on the effect of the regulated speech on third parties. Part I reviews the First Amendment standards that could apply to pronoun policies and anti-queer curriculum laws. Part II argues that these types of policies regulating educators' classroom speech can be distinguished from one another using an egalitarian framework, which accounts for the impact of the regulated speech on students' expression and the overall expressive environment of the classroom. Though First Amendment jurisprudence usually forecloses such arguments about third-party

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