Terrorist Incitement on the Internet
Alexander Tsesis, Terrorist Incitement on the Internet
Terrorist Incitement on the Internet
Alexander Tsesis 0 1
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1 Loyola University School of Law
The internet is an astoundingly robust and dynamic instrument for all
manner of communications. It is a platform for an array of webpages, blogs,
chatrooms, virtual groups, news media, political forums, advertisement
options, cybersleuth sites, revenge spaces, shaming discussion groups,
incitement networks, and much more. While many pages on the internet are
devoted to civil discourse, others are dedicated to calumnious activities.
Along with newspapers and university websites, there are others engaged in
cybershaming1 and cyberbullying.2
Of even greater social, political, and cultural consequence is the slew of
websites committed to the spread of hate against various groups,3 and in its
darkest crevasses are terrorist websites dedicated to inciting violence,
recruiting like-minded individuals, and indoctrinating others on the use of
political, religious, and otherwise ideological violence.4 Terrorist speech on
the internet poses a threat worldwide. The realm of communications has
vastly expanded the delivery of constructive and destructive information.
Groups who seek to alter governments’ policies and religious practices
through havoc, violence, and intimidation are among those who exploit the
cross-border nature of internet protocols and electromagnetic packets. In
* Raymond & Mary Simon Chair in Constitutional Law and Professor of Law, Loyola
University School of Law, Chicago. This Foreword provides an overview the Fordham Law
Review symposium entitled Terrorist Incitement on the Internet held at Fordham University
School of Law.
addition to open propaganda on forums such as YouTube and Facebook,
terrorists have increasingly exploited “darknets” to obfuscate and anonymize
their activities through networks like Tor, I2P, and Freenet.5 While all of
these are benign tools useful for confidential interactions, privacy, and other
legitimate purposes, international criminals—terrorists, counterfeiters, drug
dealers, and arms dealers among them—exploit these tools for nefarious
I organized this symposium to advance understanding of how terrorist
communications drive and influence social, political, religious, civil, literary,
and artistic conduct. Viewing terrorist speech through wide prisms of law,
culture, and contemporary media can provide lawmakers, adjudicators, and
administrators a better understanding of how to contain and prevent the
exploitation of modern communication technologies to influence, recruit, and
exploit others to perpetrate ideologically driven acts of violence.
Undertaking such a multipronged study requires not only looking at the
personal and sociological appeals that extreme ideology exerts but also
considering how to create political, administrative, educational, and
economic conditions to effect positive change at micro and macro levels. The
deep analysis that a symposium provides can paint a more comprehensive
picture to explain the effectiveness or ineffectiveness of various memes,
videos, interactive websites, group chat rooms, and blogs that justify, glorify,
or incite violence. Moreover, understanding the operation of terrorist groups
on the internet can help to explain their organizational hierarchies.
Terrorist organizations’ increasingly diverse use of digital devices vastly
expands their reach beyond the scope of traditional modes of
communication—conversations, pamphlets, or couriers.6 The challenge
facing government agencies and thinktanks is how to formulate policies,
statutes, standards, and regulations for digital platforms that are likely to
safeguard the public, while maintaining the constitutional standards of
protected speech and privacy.
First Amendment values are essential for a functional democracy, personal
development, and the spread of sciences. However, they do not require an
absolute prohibition against national security-based restrictions.7 The
compelling need for regulations is particularly evident when dealing with
incitements to violence that are aimed at achieving political and religious
ends.8 Terrorism is not a spontaneous reaction to the existing order; to the
5. EUROPOL, INTERNET ORGANISED CRIME THREAT ASSESSMENT 47 (2016).
6. See Stephen I. Landman, Note, Funding Bin Laden’s Avatar: A Proposal for the
Regulation of Virtual Hawalas, 35 WM. MITCHELL L. REV. 5159, 5163–65 (2009).
7. See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 570 (1976) (asserting that the “Court
has frequently denied that First Amendment rights are absolute”).
8. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 164–65 (1963) (asserting that the
government has power to act in the interest of national security because the Constitution “is
not a suicide pact”).
contrary, it requires planning, training, organizing, coordinating, executing,
and debriefing for which the internet has proved to be a reliable tool.9
Among the most urgent issues confronting governments and citizens is the
extent to which the state can justify censoring speech that explicitly or
implicitly threatens others. One of the most respected principles of U.S.
constitutional law is that the First Amendment does not prevent the
government from enforcing criminal laws against speech aimed at inciting or
likely to lead to an imminent harm.10 A more complex issue is the extent to
which federal and state entities can censor online indoctrination that
influences and directs persons to engage in future terrorist operations.
The internet differs in part from traditional communications because of the
great distances that often exist between online speakers and their audiences.
Rarely will a statement posted on the internet present an imminent threat of
harm. However, traditional spatial and temporal considerations of
imminence are insufficient for policy-makers to address internet-based
terrorist incitement. Online speech likely will not present any clear or present
danger—except in the rare circumstance in which the target of inciteful
comments is immediately proximate to the speaker, as if, for instance, an
inflammatory message was sent to someone in the immediate vicinity of the
sender.11 Many terrorist threats, calls for recruitment, and virtual meetings
are made from remote locations, often from countries other than the location
of the audience.12 Even threats to life and physical well-being might be made
to instigate others to take action at some ambiguously designated opportune
The architecture of the internet creates new opportunities for the
dissemination of information and the formation of groups. Joint efforts
between groups with no former association often arise through digital
contacts. For example, before his shooting spree and murder of American
soldiers at Fort Hood in Texas, Major Nidal Hassan interacted and received
encouragement from a radical Islamic imam in Yemen.14 Separately, a
wifeand-husband terrorist team—Tashfeen Malik and Syed Farook—pored over
hours of terrorist videos on YouTube and read the Al Qaeda magazine
Inspire.15 Likewise, the computer of one of the brothers who participated in
the 2013 Boston Marathon bombing contained several terrorist pamphlets
from abroad.16 These terrorists were able to connect with handlers and could
obtain literature to an extent that would have been unfathomable to previous
generations. All this has become possible just twenty years after the internet
first became a popular tool of communication. Since the mid-1990s,
communication tools have steadily developed and have been adopted by
people with the best, or the worst, intentions.17
Internet tools have made it easier to influence and radicalize persons who,
in the past, would have found it difficult to connect with terror networks.18
They are part of the most disturbing aspect of internet communications and
provide forums to ideologically driven violent groups in Afghanistan,
Chechnya, Indonesia, Iraq, Lebanon, Malaysia, the Palestinian territories, the
Philippines, Turkey, and beyond to share information about building bombs,
developing terrorist cells, and perpetrating attacks.19 Prior to its creation,
recruiters had to rely on face-to-face contacts at religious services, outdoor
gatherings, and private meetings. Now, the internet has made it easier to
connect and communicate with terror organizations, locate potential recruits,
create and sustain ideological communities, and instigate violence.20 The
internet’s ability to provide quicker access to more information and to expand
outreach to audiences has been invaluable to terrorists. While mainstream
media such as radio, newspapers, and television stations are closed to terrorist
organizations in western countries, terrorist organizations can rely on
websites to dehumanize enemies and present themselves as innocent victims
of powerful, colonial states.21
WEBSTER COMMISSION ON THE FEDERAL BUREAU OF INVESTIGATION, COUNTERTERRORISM
INTELLIGENCE, AND THE EVENTS AT FORT HOOD, TEXAS, ON NOVEMBER 5, 2009, at 41, 50–51
15. Greg Miller, Al-Qaeda Figure Seen as Key Inspiration for San Bernardino Attacker,
WASH. POST (Dec. 18, 2015),
https://www.washingtonpost.com/world/national-security/alqaeda-figure-seen-as-key-inspiration-for-san-bernardino-attacker/2015/12/18/f0e00d80a5a0-11e5-9c4e-be37f66848bb_story.html [https://perma.cc/B927-7HVY]; Scott Shane,
Internet Firms Urged to Limit Work of Anwar al-Awlaki, N.Y. TIMES (Dec. 18, 2015),
16. Peter Bergen & David Sterman, The Man Who Inspired the Boston Bombings, CNN
(Apr. 11, 2014, 10:16 AM),
17. See Lawrence Lessig, The Death of Cyberspace, 57 WASH. & LEE L. REV. 337, 337
18. HOMELAND SEC. INST., THE INTERNET AS A TERRORIST TOOL FOR RECRUITMENT &
RADICALIZATION OF YOUTH 1 (2009).
19. GABRIEL WEIMANN, U.S. INST. FOR PEACE, WWW.TERROR.NET: HOW MODERN
TERRORISM USES THE INTERNET 9 (2004).
20. J.M. Berger, How Terrorists Recruit Online (and How to Stop It), BROOKINGS
INSTITUTION (Nov. 9, 2015),
21. WEIMANN, supra note 19, at 6.
The focus and function of this symposium was to assess the limits of
legitimate regulations of terrorist communications spread on websites
sponsored by terrorist groups, email servers, internet service providers,
listservs, social platforms, and other means of cybercommunication. These
subjects create one of the most pressing constitutional dilemmas of our day
because of the potential consequences of misregulation. The dilemmas
facing regulators are diverse and range from how to curb overbroad
government regulations likely to violate the freedom of association to how to
empower law enforcement to react commensurately with the evils of terrorist
indoctrination and incitement.
Participants of the symposium sought to identify the categorical rules and
balances that must be established by legislators and reviewed by courts to
create sustainable and legally viable balances between robust protections of
speech and effective safeguards for national security. In a series of panels,
the authors brought their expertise to bear on the topic for elucidating. They
explored whether and how government agencies should maintain
contentneutral regulations across the internet while shutting down truly threatening
or inciteful posts calling for the ideologically driven murder of civilians.22
The Articles in this issue are the result of that symposium, which I organized
with the help of editors of the Fordham Law Review.
In the first article, Professor Alan Chen argues that courts should continue
to apply the imminent threat of harm test established in Brandenburg v.
Ohio23 to review regulations restricting terrorist speech.24 He cautions
against skewing First Amendment doctrine in reaction to two distinct forms
of exceptionalism.25 First, he expresses concern that, as has occurred in the
past, the government may undermine speech protections in response to
exaggerated national-security concerns.26 Second, he suggests that courts
may similarly overreact to the possibility that changes in digital
communication technologies may exacerbate those security concerns in ways
that call for more robust state intervention.27 The nation should be
particularly skeptical when the government proclaims the need to censor
expression in the face of the convergence of national security and internet
exceptionalism.28 Narrowing free speech doctrine in response to these
contemporary developments, Professor Chen argues, may not only skew free
speech doctrine but may also influence law enforcement agencies’ decisions
to adopt invasive surveillance technologies.29 Professor Chen argues that in
its current form, Brandenburg seems appropriately calibrated to provide
broad protection for pure advocacy while permitting the government to
regulate speech that presents a truly imminent danger.30
Professor Danielle Citron and Brookings Institution Fellow Benjamin
Wittes argue that courts have interpreted § 230 of the Communications
Decency Act too broadly.31 As a result, courts have granted immunity to a
variety of internet platforms even when those platforms intend to disseminate
abuse and provide electronic forums for illegal conduct.32 This status quo
empowers abusers to use forums with equanimity to defame, degrade, and
otherwise harm victims, while the latter are left without recourse.33 Citron
and Wittes propose either modification to the current judicial understanding
of § 230 or legislative revision.34 Such revision would have to maintain
robust speech freedoms on social media but also subject those platforms to
liability when their existence is predicated on illegality35 ranging from
defamatory claims about the sexuality of specific individuals to inflammatory
terrorist assertions aimed at recruits; solicitation from site visitors for similar
postings; and deliberate dissemination of such noxious content.36 Their
suggested interpretation would maintain immunity for Good Samaritans
while denying it to active “Bad Samaritans.”37
Professor Raphael Cohen-Almagor points out that free speech without
limitations might amount to lawlessness.38 Freedom of expression is one of
the most basic and important values of liberal democracies, but it needs to be
weighed against an equal value—social responsibility.39 A golden mean
must be identified that will provide support for both freedom of expression
and social responsibility.40 Internet companies not only provide access to the
internet, they also facilitate and enable speech on the internet.41 Therefore,
these intermediaries have moral and social responsibilities of effective
gatekeeping that help prevent violent words from becoming violent actions.42
Internet companies, as gatekeepers, should be proactive in fighting against
violent speech.43 Cohen-Almagor argues that companies should act
independently and proactively in preventing terrorist speech just as they do
against corporate ultra vires acts.44
However, internet companies regularly fail to monitor their
communication networks. Reasons they assert for this failure include a
robust protection of free speech, the need for fast-paced innovation, the
ambiguity of the meaning of hate speech, a commitment to avoid censorship,
and the sheer volume of digital information streamed on social networks.45
A considerable part of this reasoning is fueled by partisan economic interests
aimed to increase profits and minimize expenses.46 Cohen-Almagor
concludes that internet intermediaries must understand that with great power
comes great responsibility.47 Online terrorism is a grave concern; thus, due
care is imperative.48
Context is important in determining whether certain speech incites
violence.49 Therefore, internet intermediaries can, and should, develop
adequate algorithms to determine the context of any given message and
deduce whether the speech at hand is dangerous and terroristic.50 In
achieving this goal, cooperation with governments and security agencies is
preferred to coercion.51 It is better for internet intermediaries to be proactive
than to be coerced into action by legislatures.52 Cohen-Almagor believes that
responsibility accompanied by enhanced technology is within reach to enable
the protection of society from the ills of terrorism.53
Professor Caroline Mala Corbin elaborates on, considers, and examines the
effects of internet posts that depict terrorists in the United States as Muslim
while simultaneously refusing to depict white people as terrorists.54 These
false stereotypes are partly attributable to the influence of news media, which
often carry sensational reports of Muslim terrorism despite the fact that more
terrorist attacks in the United States are perpetrated by white extremists.55
Such white extremists, however, are rarely called terrorists despite being
ideologically driven by a message of intimidation.56
Corbin adopts critical race theory methodology to inform her awareness of
subtle racism.57 Often, unconscious cognitive processes create racial and
ethnic categories, such as the stereotype of the Muslim terrorist.58
Meanwhile, she asserts, caucasians enjoy white privilege, which manifests in
the public perception of white terrorists as lone wolves, rather than examples
of endemic ethnic hatred.59 White people, as a whole, thereby avoid being
generalized as terrorists.60
Corbin then examines the intersection of critical race studies and
propaganda.61 In particular, she looks at how President Donald Trump’s
administration invokes these overgeneralized narratives to disseminate
propaganda that relies on cognitive social narratives that do not carefully
evaluate terrorism.62 This propaganda contains aspects of flawed racial
beliefs63 and advances an anti-Muslim narrative while avoiding mention of
Professor David Han focuses on the subset of speech of terrorist
advocacy—that is, abstract advocacy of unlawful terrorist activity.65 That
form of communication does not fall under the traditional category of
lowvalue speech as defined by earlier U.S. Supreme Court cases.66 But
exceptional circumstances may arise justifying regulation of such speech, and
Professor Han examines how the First Amendment should account for such
circumstances.67 He argues that courts should not immediately resort to
broad doctrinal revision but rather should initially account for changed
circumstances by applying strict scrutiny as is required under the current
doctrinal framework.68 Adhering to a rigorous but meaningful strict scrutiny
standard would give courts some flexibility to react in response to changed
circumstances while acting as a valuable intermediate step to evaluate
whether broader doctrinal reformulation is necessary.69 Stated somewhat
differently, it gives courts a chance to carefully consider whether the present
circumstances are truly indicative of a fundamentally changed reality or
merely an outlier.70
Professor Heidi Kitrosser’s article focuses on the federal statute
prohibiting individuals from providing material support to designated
terrorist organizations.71 She discusses lower-court opinions interpreting
various provisions of the federal material support of terrorism statute.72 As
she demonstrates, many such cases have involved expressive censorship.73
Kitrosser recognizes that in extreme circumstances the statute serves a
worthwhile goal, but there is reason to be concerned about ambiguities in the
law, such as how groups are designated on the State Department’s official
lists of foreign terrorist organizations and specially designated global
terrorists.74 The principal case upholding the material-support statute,
Holder v. Humanitarian Law Project,75 has created judicial superdeference
to regulations against speech perceived to help terrorist organizations.76
Professor Kitrosser argues that the lack of adequate judicial oversight has
allowed the government to use coercion to suppress constitutionally
protected free expression.77
Professor Andrew Koppelman argues that none of the proposed
restrictions of terrorist incitement, beyond what is already unprotected, are
workable.78 The law cannot reach internet speech that originates overseas
and restrictions on reading such material do not provide readers with
adequate notice of what is banned.79 There is also value in permitting readers
to expose themselves to evil and destructive views.80 People may make bad
choices when they are treated as adults, but free people have to be permitted
to contemplate such choices.81
Professor Helen Norton addresses various constitutional concerns raised
by the government’s role as speaker in the War on Terror.82 She explains
that government speech is especially powerful because of its ubiquity,
variety, and reach.83 At times, the government’s wartime speech has a
positive influence by calling for unity and healing or by informing the public
about important issues.84 At other times, however, the government uses its
wartime voice to deceive the public about its decisions or to denigrate and
instill hatred against perceived outsiders.85 She closes by discussing a range
of potential legal and policy responses to the government’s wartime
fearmongering and lies.86
Professor Martin Redish and Matthew Fisher draw on the strategy and
conduct of terrorist organizations to evaluate whether their speech can be
restricted.87 Such organizations engage in cybercommunications to terrorize
and energize lone wolves to act on violent ideologies.88 Modern free speech
doctrine has two strands relevant to the question of whether these terrorist
communications in cyberspace can be regulated. They are the “true threats”
and “incitement” doctrines.89 On the one hand, true threats are inherently
coercive acts and therefore beyond the scope of the First Amendment.90
Unlawful advocacy, on the other hand, is protected under the Brandenburg
incitement doctrine.91 Both doctrines are pertinent to terrorizing advocacy,
which seeks to cause immediate terror in listeners analogous to a true threat.92
Yet terrorists do not simply speak in symbolic terms but aim to illicit action
and trauma.93 Terror speech seeks to terrorize listeners and to induce
criminal conduct.94 To deal with these threats, a model is needed to deal with
hybrid speech.95 That model has three qualifications: First, the speaker must
call for criminal, physical violence.96 Second, the intended victim must be
aware of the threat.97 Lastly, the threat must be real, not abstract.98 If these
are met, government would be allowed to suppress the nonspeech, coercive
Professor Thane Rosenbaum argues that terrorism transmitted on the
internet should give us pause to reflect on how we conceptualize free
speech.100 The United States is an outlier in this area of law.101 Many
Americans assume that expressive interactions will always lead to meaning
and truth despite evidence of real harms that speech can pose.102 Rosenbaum
believes that our narcissism when it comes to extolling this fundamental
liberty hampers our ability to make moral choices.103 Many people refuse to
take moral positions because of free speech zealotry.104 These First
Amendment absolutists, as he sees it, suffer from a form of intellectual
myopia: they put ideology ahead of considerations of public safety and even
common sense.105 Fascism can clearly emerge from internet anonymity and
animus.106 This is not a marketplace of ideas.107 Tranquility and security
stand on an equal plane with speech.108 Indeed, a people imprisoned by terror
have lost all claim and capacity to exercise their freedoms.109 In this manner,
harms caused by terrorist speech delivered on the internet should be regarded
with the same exclusion from First Amendment protection as any other clear,
present, and imminent danger.110
Professor Alexander Tsesis’s article concentrates on terrorists’ widespread
adoption of social media platforms.111 As terrorist networks increasingly
embrace new media, internet information companies often remain reluctant
or ambivalent about removing even explicit and graphic calls for
ideologically motivated carnage, disruption, destruction, and terrorist
indoctrination.112 While those companies are not purveyors of threats or
incitement,113 their responsibility nevertheless arises when they cooperate
with terrorist organizations by providing a platform for their indoctrination,
threats, and instructive contents.114 With an increasingly proliferating
number of terrorist webpages, self-policing has proven ineffective.115
However, in certain circumstances, internet services can run afoul of the
material-support statute.116 Using this statute, concerted government-led
criminal prosecutions and injunctions are needed to maintain national and
international standards against the material support of designated terrorist
organizations.117 However, just as increased government enforcement is
critical for stamping out terrorist incitement, so too must the government
guarantee rigorous free speech protections through government transparency,
procedural safeguards, clearly defined designations, and judicial review.118
111. Alexander Tsesis, Social Media Accountability for Terrorist Propaganda, 86
FORDHAM L. REV. 605, 606 (2017).
112. Id. at 609.
113. Id. at 616.
114. Id. at 615–16.
115. Id. at 610.
116. Id. at 619.
117. Id. at 620–28.
118. Id. at 628–30.
1. See Patricia Sanchez Abril , A (My)space of One's Own: On Privacy and Online Social Networks, 6 NW . J. TECH. & INTELL. PROP . 73 , 78 - 81 ( 2007 ) (discussing the limited capacity of tort law to provide remedies for internet posts aimed to shame a party but not rising to the falsity that must be proven for a viable slander or libel action).
2. See generally Alison Virginia King, Constitutionality of Cyberbullying Laws: Keeping the Online Playground Safe for Both Teens and Free Speech, 63 VAND. L. REV. 845 ( 2010 ).
3. Alexander Tsesis , Hate in Cyberspace: Regulating Hate Speech on the Internet , 38 SAN DIEGO L. REV. 817 , 818 ( 2001 ).
4. See Alexander Tsesis , Terrorist Communications on Social Media , 70 VAND. L. REV. 651 , 655 ( 2017 ).
9. See generally Gabriel Hallevy, Incapacitating Terrorism Through Legal Fight-The Need to Redefine Inchoate Offenses Under the Liberal Concept of Criminal Law , ALA. C.R. & C.L.L. REV ., 2012 , at 87.
10. See Brandenburg v. Ohio , 395 U.S. 444 , 447 ( 1969 ) (per curiam) (“[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action .”).
11. Feiner v. New York, 340 U.S. 315 , 320 ( 1951 ) (“When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.” (quoting Cantwell v . Connecticut , 310 U.S. 296 , 308 ( 1940 ))).
12. See MARC SAGEMAN , LEADERLESS JIHAD : TERROR NETWORKS IN THE TWENTY- FIRST CENTURY 109-11 ( 2008 ).
13. See id. at 109-123 ( relating how terrorists post on the internet to influence current and future recruits).
14. Lessons from Fort Hood: Improving Our Ability to Connect the Dots: Hearing Before the Subcomm . on Oversight, Investigations, & Mgmt. of the H . Comm. on Homeland Sec., 112th Cong . 15 - 16 ( 2012 ) (statement of Douglas E . Winter, Deputy Chair, The William H. Webster Commission); WILLIAM H. WEBSTER COMM'N , FINAL REPORT OF THE WILLIAM H.
22. The scholars that participated in the symposium were: Jack M. Balkin, Alan K . Chen, Danielle Keats Citron, Raphael Cohen-Almagor, Caroline Mala Corbin, Matthew Fisher, Abner Greene, David S. Han, Heidi Kitrosser, Andrew Koppelman, Joseph Landau, Larissa Lidsky, Helen Norton, Martin H. Redish , Joel Reidenberg, Thane Rosenbaum, and Alexander Tsesis.
23. 395 U.S. 444 ( 1969 ) (per curiam).
24. Alan K. Chen , Free Speech and the Confluence of National Security and Internet Exceptionalism, 86 FORDHAM L . REV. 379 , 397 - 99 ( 2017 ).
25. Id . at 380.
26. Id . at 381-85.
27. Id . at 385-97.
28. Id . at 397.
29. Id .
74. Id . at 520.
75. 561 U.S. 1 ( 2010 ).
76. Kitrosser , supra note 71, at 527.
77. Id . at 528.
78. Andrew Koppelman , Entertaining Satan: Why We Tolerate Terrorist Incitement , 86 FORDHAM L. REV. 535 , 535 ( 2017 ).
79. Id . at 538.
80. Id . at 540.
81. Id . at 541-42.
82. Helen Norton , Government Speech and the War on Terror, 86 FORDHAM L . REV. 543 , 543 ( 2017 ).
83. Id .
84. Id . at 546.
85. Id . at 547-57.
86. Id . at 558-62.
87. Martin H. Redish & Matthew Fisher, Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity , 86 FORDHAM L. REV. 565 , 566 - 67 ( 2017 ).
88. Id . at 567-68.