Essay

Government Speech and First Amendment Capture

Alarm regarding government speech is not new. In earlier decades, scholars worried that the government’s speech might monopolize a marketplace and drown out opposing viewpoints. But today, using a move I term “First Amendment capture,” the government need not be the loudest speaker because it can become the only speaker. First Amendment capture has been made possible by the Supreme Court’s developing government speech doctrine, which holds that government speech is not subject to the Free Speech Clause. Consequently, once speech is declared governmental, the government may censor viewpoints it does not like. First Amendment capture—categorizing contested speech as government speech and then eliminating contrary viewpoints—is an increasingly frequent occurrence and risks giving the government too much power to suppress those who would criticize it or blow the whistle on it. While one solution is to resist the government speech label, this Essay also proposes recognizing “mixed speech” as a potential means of curtailing the expansiveness of the government speech doctrine.

Introduction

Government speech is inevitable; the government cannot operate without speaking.1 1.See infra notes 21–25 and accompanying text.Show More Because government speech can educate, inform, and make positive contributions to the marketplace of ideas, government speech is not necessarily problematic.2 2.See generally Abner S. Greene, Government of the Good, 53 Vand. L. Rev. 1, 7–12 (2000) (listing four ways that government speech can be viewed as an affirmative good).Show More At the same time, government speech may threaten free speech values if it overwhelms critics or distorts debate.

What role government should play in our political discourse was the subject of much debate in the 1980s.3 3.See, e.g., John E. Nowak, Using the Press Clause to Limit Government Speech, 30 Ariz. L. Rev. 1, 9 (1988) (“In recent years, perhaps due to an awareness of the changing factors that increase the danger to our society from government speech, several scholars have examined the topic of whether the judiciary could use the free speech clause of first amendment to limit governmental speech.”); Steven Shiffrin, Government Speech, 27 UCLA L. Rev. 565, 570 (1980) (“The government speech problem is to determine when and by what means government may promote controversial values and when it may not.”); see alsoRichard Delgado, The Language of the Arms Race: Should the People Limit Government Speech?, 64 B.U. L. Rev. 961 (1984) (discussing prominent themes in the government speech debate); Robert D. Kamenshine, The First Amendment’s Implied Political Establishment Clause, 67 Cal. L. Rev. 1104 (1979) (arguing that the First Amendment prohibits government from advocating political ideas); Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 Tex. L. Rev. 863 (1979) (arguing that governments should not have free speech rights); Edward H. Ziegler, Jr., Government Speech and the Constitution: The Limits of Official Partisanship, 21 B.C. L. Rev. 578 (1980) (arguing that partisan government speech does not and should not receive First Amendment protection).Show More Scholars worried that the government might monopolize speech marketplaces and drown out other views.4 4.See, e.g., Kamenshine, supranote 3, at 1104 (“[P]articipation by the government in the dissemination of political ideas poses a threat to open public debate . . . .”); Shiffrin, supra note 3, at 601 (“[O]ne of the problems to be faced in assessing government speech [is] the concern that government speech could result in unacceptable domination of the marketplace and the need for measures to confine the danger.”).Show More The concern that government speech might distort a marketplace of ideas remains, but thanks to the newly developed government speech doctrine,5 5.See infra Part I (describing the development of the government speech doctrine).Show More the government need not be the loudest speaker because it can become the only speaker. According to the Supreme Court’s government speech doctrine, once speech is deemed government speech, it falls outside the purview of the Free Speech Clause.6 6.Reed v. Town of Gilbert, 135 S. Ct. 2218, 2235 (2015) (“The Court has also said that ‘government speech’ escapes First Amendment strictures.”).Show More That is, while suppressing a viewpoint in private speech triggers strict scrutiny and is presumptively unconstitutional,7 7.Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”).Show More the same action under the government speech label is perfectly constitutional as the government may exert complete control over its own speech.8 8.See infra Part I.Show More A free speech challenge will consequently fail if the contested speech is classified as government speech9 9.See infra notes 26–34 and accompanying text (discussing cases involving specialty license plates and monuments in public parks).Show More rather than private speech.10 10.Governments often provide spaces, such as the plaza in front of the town hall, for private citizens to speak. These are known as forums. Different doctrinal rules might apply depending on the type of forum, but viewpoint regulations are always subject to strict scrutiny. See generally Lyrissa Lidsky, Public Forum 2.0, 91 B.U. L. Rev. 1975, 1980–89 (2011) (describing public forum doctrine).Show More Thus, the former fear that competing viewpoints will be buried under government speech has given way to the fear that competing viewpoints will be altogether eliminated by the government speech doctrine.11 11.See, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Public Perceptions of Government Speech, 2017 Sup. Ct. Rev. 33, 34–35 (2017) (“[W]ithout some meaningful limit on the government’s ability to claim expression as its own, the government speech doctrine could eviscerate the bar on viewpoint discrimination among private speakers.”).Show More

I call this move—classifying contested speech as government speech and then clamping down on certain viewpoints—“First Amendment capture.” “Agency capture” occurs when the regulated gain control of the agency charged with regulating them.12 12.Rachel E. Barkow, Insulating Agencies: Avoiding Agency Capture Through Institutional Design, 89 Tex. L. Rev. 15, 21 n.23 (2010) (“Capture, for the purposes of agency design, may be defined as responsiveness to the desires of the industry or groups being regulated.”).Show More Likewise, the government, which is supposed to be regulated by the First Amendment, gains control of speech in First Amendment capture.

One obvious way to prevent First Amendment capture is to categorize contested speech as private speech. But that may come with its own costs, such as forcing government to support or sponsor denigrating speech or highly religious speech.13 13.See infra Part III.B.Show More Another way to address exponential expansion of government speech is to recognize a new category of speech in addition to private speech and government speech. This new category—“mixed speech”—would cover speech that has both private and government components, and it would trigger intermediate scrutiny.14 14.In contrast, regulations of private speech regularly trigger strict scrutiny while regulations of government speech trigger no scrutiny at all. See infra Part I.Show More This recognition would allow more speech to be subject to the free speech prohibition on viewpoint discrimination yet still allow a degree of government control.15 15.I have discussed this proposal in an earlier work. See Caroline Mala Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83 N.Y.U. L. Rev. 605, 675–77 (2008) [hereinafter Corbin, Mixed Speech]. Unlike this Article, the earlier one did not focus on the problems of First Amendment capture.Show More

This Article has three parts. Part I describes the current government speech doctrine. Part II describes the problems raised by government speech. It begins with a brief review of early government speech literature. It then examines how these concerns manifest today. Part III considers Free Speech Clause solutions,16 16.This Essay focuses on how the Free Speech Clause itself might be mobilized, though obviously solutions might be found elsewhere as well.Show More including the recognition of mixed speech as a potential limit on unregulated government speech.

I.  Government Speech Doctrine

The government speech doctrine is a late twentieth century judicial creation.17 17.Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting) (“The government-speech doctrine is relatively new, and correspondingly imprecise.”). The 1991 Rust v. Sullivan, 500 U.S. 173 (1991), decision is now heralded as one of the first government speech cases, though the decision itself did not use that term. Rather, a decade later Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001), identified Rust as a government speech decision: “The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding.” Id. at 541.Show More Its primary rule is fairly straightforward: If the speech is the government’s, then the Free Speech Clause does not apply.18 18.Matal v. Tam, 137 S. Ct. 1744, 1757 (2017) (“[O]ur cases recognize that ‘[t]he Free Speech Clause . . . does not regulate government speech.’”).Show More One of the core tenets of the Free Speech Clause is that the government may not censor viewpoints it does not like.19 19.Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019) (“The government may not discriminate against speech based on the ideas or opinions it conveys.”); see also supra note 7.Show More However, “[t]he Government’s own speech . . . is exempt from First Amendment scrutiny.”20 20.Johanns, 544 U.S. at 553.Show More

The starting assumption for the government speech doctrine is that the government must be able to control its own speech in order to function.21 21.Matal, 137 S. Ct. at 1757 (“[I]mposing a requirement of viewpoint-neutrality on government speech would be paralyzing.”).Show More Government officials are chosen because of their political platforms, and “[w]hen a government entity embarks on a course of action, it necessarily takes a particular viewpoint and rejects others.” 22 22.Id.Show More As the Supreme Court has observed, when the government promoted the war effort during World War II, the First Amendment did not demand that it simultaneously discourage those efforts.23 23.Id. at 1758.Show More Similarly, the government could not effectively promote vaccinations if it also had to balance its pro-vaccine message by supporting anti-vaxxers.24 24.Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2246 (2015).Show More The government cannot do the job it was elected to do without the ability to decide what it says and does not say.25 25.Id. at 2246 (“But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.”).Show More

Two recent cases—Pleasant Grove City v. Summum (2009)26 26.555 U.S. 460 (2009).Show More and Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015)27 27.135 S. Ct. 2239 (2015).Show More—have cemented the government speech doctrine. In Summum, a small religious group offered to donate a Summum religious monument to a public park that hosted several previously donated monuments, including one of the Ten Commandments.28 28.Pleasant Grove City, 555 U.S. at 466.Show More When the town refused, the group accused it of unconstitutional viewpoint discrimination.29 29.Id.Show More The Supreme Court held that monuments in a public park constitute government speech, and therefore the town could welcome a Ten Commandments monument while refusing Summum’s Seven Aphorisms monument.30 30.Id. at 472.Show More

In Walker, Texas found itself accused of unconstitutional viewpoint discrimination because, despite offering drivers dozens of specialty license plates, it had refused to make one bearing the confederate flag for the Sons of Confederate Veterans group.31 31.Walker, 135 S. Ct. at 2245.Show More Again, the Supreme Court found the contested speech to be government speech.32 32.Id. at 2246.Show More As a result, Texas was free to reject the Sons of Confederate Veterans license plate.33 33.Id. at 2253.Show More “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”34 34.Id. at 2245; see also id. at 2245–46 (“Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.”).Show More

Although government speech is not subject to the Free Speech Clause, other clauses might limit it. For example, government speech might violate the Equal Protection Clause, which bars discrimination on the basis of race,35 35.Cf. Plyler v. Doe, 457 U.S. 202, 213 (1982) (“The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.”).Show More or the Establishment Clause, which bars endorsing one religion over others.36 36.Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009) (“[G]overnment speech must comport with the Establishment Clause.”).Show More However, the Supreme Court has argued that the primary check on government speech is the democratic process.37 37.Walker, 135 S. Ct. at 2245 (“[I]t is the democratic electoral process that first and foremost provides a check on government speech.”).Show More People express their approval or disapproval of the government and its speech with their vote. Because the government “is ultimately ‘accountable to the electorate and the political process for its advocacy,’”38 38.Pleasant Grove City, 555 U.S. at 468 (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000)).Show More the government may discriminate against certain viewpoints in its own speech. “If the citizenry objects, newly elected officials later could espouse some different or contrary position.”39 39.Id. at 468–69 (quoting Bd. of Regents, 529 U.S. at 235).Show More

In short, under the government speech doctrine, the government can choose its own words. If the electorate does not like the government’s chosen viewpoint, it can act to change the government.

II. Problems of Government Speech

Three justifications are regularly offered for why free speech is so important that government regulation of speech triggers concern and heightened scrutiny.40 40.Cf. Kent Greenawalt, Free Speech Justifications, 89 Colum. L. Rev. 119, 120 (1989) (arguing that any attempt to articulate a single unifying theory of free speech risks oversimplification).Show More First, free speech promotes a marketplace of ideas, which helps us in our search for knowledge, including political knowledge.41 41.See, e.g., Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . . That at any rate is the theory of our Constitution.”).Show More Second, free speech is key for our system of democratic self-governance; a free flow of information ensures that people can keep tabs on the government and make informed political decisions.42 42.See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1978) (“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”).Show More Finally, free speech furthers autonomy and self-expression and is thus an end in itself.43 43.See, e.g., C. Edwin Baker, Harm, Liberty, and Free Speech, 70 S. Cal. L. Rev. 979, 980 (1997) (“Speech can relate to autonomy in two ways: as itself an exercise of autonomy or as an informational resource arguably essential for meaningful exercise of autonomy.”).Show More Just as a government monopoly over speech might distort the marketplace of ideas, and with it, our ability to govern ourselves, so too does First Amendment capture.

A. First Generation Concerns: Monopoly

To the extent that free speech scholarship in the 1980s examined government speech, the debate focused primarily on the degree to which the government should be permitted to act as a speaker within the marketplace of ideas. Animating these early discussions was a fear that government might overwhelm private speakers and monopolize the market. A government speech monopoly would not only inhibit a robust exchange of ideas but the resulting distorted free speech markets might also undermine the consent of the governed—a cornerstone of our democracy.

At the birth of the government speech doctrine (and before), scholars differed on the degree to which the government should be a speaker in the marketplace of ideas on controversial subjects. While acknowledging the government’s need to communicate in order to enact the democratic will,44 44.Yudof, supra note 3, at865 (“Government expression is critical to the operation of a democratic polity . . .”).Show More some believed the government should speak only when necessary.45 45.Ziegler, supra note 3, at 585–86 (“If the democratic process is to operate with a minimum of distortion, government information and communication functions in connection with structured political questions must be limited by law to those activities necessary for the effective operation of the process.”).Show More Others argued that the government’s speech could actually enrich the marketplace of ideas.46 46.Greene, supra note 2, at 8–11. As Greene points out, government can make distinctive contributions to public debate. Id.at 8. For example, it can subsidize arts and science. Id. at 9. It can use its power of persuasion to alter social norms regarding race, smoking, and overeating. Id. at 10. Government can also check concentrations of private power. Id. at 11; see also John Fee, Speech Discrimination, 85 B.U. L. Rev. 1103, 1137 (2005). (“[G]overnment can and should make a positive difference in the world of ideas . . .”).Show More

In spite of these differences, there was general consensus that a government monopoly would pose a problem with potential constitutional implications.47 47.See, e.g., Shiffrin, supranote 3, at 607 (“If a system of free expression is to be preserved, either custom, or statutes, or constitutionally based limitations must provide assurances that government speech will not unfairly dominate the intellectual marketplace.”).Show More As Richard Delgado noted: “A prominent theme in this ‘government speech’ debate is that the government’s powerful voice can easily overwhelm weaker private voices, creating a monopoly of ideas and inhibiting the dialectic on which we rely to reach decisions.”48 48.See Delgado, supranote 3, at 961–62.Show More Even those like Abner Greene, a strong supporter of the government as a participant in debate,49 49.Greene, supra note 2, at 5 (“Government may, and should, use its speech powers to advance specific conceptions of the good, even if those conceptions are contested, controversial, or seen as favoring a particular viewpoint.”).Show More agreed that “government speech is highly problematic when it is the only voice in a relevant speech market.”50 50.Greene, supra note 2, at 27.Show More Mark Yudof argued that such a government monopoly was tantamount to censoring of private speech: “The passage of time since adoption of the Bill of Rights has revealed that laws and practices that permit massive government communications activities may as effectively silence private speakers as a direct regime of censorship.”51 51.Yudof, supra note 3, at897.Show More Most agreed that government speech that monopolizes might be constrained by the First Amendment.52 52.Greene, supra note 2, at 27 (“[A]ctual monopolization [of the speech market] should be understood to violate the Constitution.”); see also Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 Iowa L. Rev. 1377, 1487 (2001) (“We conclude that government speech should receive little or no immunity from the rules that otherwise apply to government regulations when the government’s speech creates a monopoly for a particular point of view.”).Show More

B. Second Generation Concerns: First Amendment Capture

The worry that the government will drown out private speakers in a particular forum has given way to the worry that the forum will vanish altogether because the speech in it has been deemed government speech.53 53.See, e.g., Steven G. Gey, Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?, 95 Iowa L. Rev.1259, 1264 (2010) (“The real point of these [government speech] cases may not be, as the Court innocuously suggests, to facilitate government speech. Rather, the point may be to give the government another tool with which to silence its critics.”).Show More Thus, the fear is not that competing viewpoints will be buried under government speech. Instead, the fear is that the contested speech will be categorized as government speech, giving the government the ability to eliminate competing viewpoints entirely. After all, under the government speech doctrine, government speech lies outside the protection of the Free Speech Clause. 54 54.See, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Public Perceptions of Government Speech, 2017 Sup. Ct. Rev. 33, 34–35 (2017) (“[W]ithout some meaningful limit on the government’s ability to claim expression as its own, the government speech doctrine could eviscerate the bar on viewpoint discrimination among private speakers.”).Show More

As described in the introduction, I call this move “First Amendment capture.” In “agency capture,” the regulated gain control of the agency that is supposed to regulate them. For example, the Food and Drug Administration is the agency charged with regulating the food industry. However, if the FDA falls under the influence of the food industry and its lobbyists, it has been captured.55 55.Barkow, supra note 12, at 21 n.23 (2010) (“Capture, for the purposes of agency design, may be defined as responsiveness to the desires of the industry or groups being regulated.”).Show More In “First Amendment capture,” the government, which is supposed to be regulated by the First Amendment, gains control of speech. As explained above, free speech is protected given the crucial role it plays in advancing knowledge (including political knowledge) and in fostering democratic self-governance.56 56.See supra notes 41–42 and accompanying text.Show More First Amendment capture undermines these free speech goals by curtailing political speech markets and political accountability.

1. Capture of Forums

This First Amendment capture is evident in the two government speech cases mentioned in Part I, both of which presented the question of whether the speech at issue was private speech in a forum (and therefore protected by the Free Speech Clause) or government speech (and therefore under complete government control).

Recall that in Pleasant Grove City v. Summum,57 57.555 U.S. 460 (2009).Show More a small religious group known as the Summum attempted to place a monument in a town park. The park already had a donated Ten Commandments monument (along with ten other donated displays),58 58.Id. at 464–65.Show More and the Summum wanted to donate an equivalent monument representing their religion’s main commandments, the Seven Aphorisms.59 59.Id. at 465.Show More The Tenth Circuit debated what kind of forum for private speech the Park represented, eventually deciding that the City violated the Summums’ free speech rights.60 60.Summum v. Pleasant Grove City, 483 F.3d 1044, 1050–54, 1057 (10th Cir. 2007).Show More The Supreme Court reversed, holding that, unlike speech in public parks, permanent monuments in public parks represented government speech, and “[are] therefore not subject to scrutiny under the Free Speech Clause.”61 61.Pleasant Grove City, 555 U.S. at 464.Show More As a result, the only monuments seen will be those chosen by the government.

A similar denouement occurred with specialty license plates. These are plates like “Choose Life” that are approved, manufactured, and owned by the government but appear on private vehicles because private individuals select and pay for them.62 62.“First surfacing in the late 1980s, specialty license plates are now available in most states.” The number of choices varies, with some states offering more than a hundred different options. Corbin, supra note 15, at 608–09.Show More Several states were sued on free speech grounds for issuing pro-life plates while refusing to issue pro-choice ones.63 63.Hill v. Kemp, 478 F.3d 1236, 1239 (10th Cir. 2007); ACLU of Tenn. v. Bredesen, 441 F.3d 370, 371–72 (6th Cir. 2006); Henderson v. Stalder, 407 F.3d 351, 352 (5th Cir. 2005); Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 787–88 (4th Cir. 2004).Show More In Walker v. Texas Division, Sons of Confederate Veterans, Inc., Texas declined to issue a Sons of Confederate Veterans plate featuring a confederate flag.64 64.Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2243–44 (2015).Show More While the Fifth Circuit held that Texas had unconstitutionally discriminated in a forum on the basis of viewpoint,65 65.Id. at 2245.Show More the Supreme Court ruled that specialty license plates were actually government speech, and “[w]hen government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”66 66.Id.Show More Consequently, the only viewpoints emblazoned on specialty license plates will be the ones endorsed by the government.67 67.See, e.g., ACLU of N.C. v. Tennyson, 815 F.3d 183, 185 (4th Cir. 2016) (allowing North Carolina to issue pro-life specialty license plates without issuing pro-choice plates).Show More

These may seem like insignificant forums, or rather, former speech forums.68 68.In each case, the court held that the speech was not private speech in a forum, but rather government speech outside the protection of the Free Speech Clause. See supra note 10 (describing forums as government-owned spaces open to private speakers and subject to the Free Speech Clause).Show More How much harm can the government do by controlling park statutes and the messages on specialty license plates? Nevertheless, complete control of even these presumably low-stakes forums may have repercussions. After Summum, for example, the primary religious monuments people will see in public parks and other public spaces are likely to be Christian ones.69 69.Cf. Aleksandra Sandstrom, Majority of States Have All-Christian Congressional Delegations, Pew Res. Ctr. (Mar. 21, 2017), https://www.pewresearch.org/fact-tank/2017/03/21/majority-of-states-have-all-christian-congressional-delegations/ [https://perma.cc/U6C3-3U6Y] (“The vast majority of the nation’s federal lawmakers (91%) describe themselves as Christians, compared with 71% of U.S. adults who say the same.”).Show More This link between American government and Christianity, when made again and again,70 70.For example, municipalities across the country erect a nativity scene, which depicts the birth of Jesus Christ, during Christmastime. See, e.g., Freedom from Religion Found., Inc. v. City of Warren, 707 F.3d 686, 689–90 (6th Cir. 2013) (upholding holiday display with nativity in atrium of civic center despite refusing to include Winter Solstice display); Wells v. City & Cty. of Denver, 257 F.3d 1132, 1152–53 (10th Cir. 2002) (upholding City and County Building’s holiday display with nativity scene despite rejecting Winter Solstice sign).Show More in multiple contexts,71 71.For example, in addition to displays, many towns and cities open their legislative sessions with Christian prayers. See, e.g., Town of Greece v. Galloway, 572 U.S. 565, 591–92 (2014) (upholding town’s practice of starting town board meetings with prayer despite most prayers being overwhelmingly Christian).Show More inevitably sends a subtle message that America is a Christian nation and that real Americans are Christian Americans.72 72.Cf. Caroline Mala Corbin, Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. Rev. 1545, 1582 (2010) (“The power of government expression to reinforce the outsider status of certain groups should not be underestimated. While many factors determine a group’s status, symbols of government are one of them, and government’s religious speech signals who belongs and who does not, who is preferred and who is second-class.”).Show More This message from the government runs contrary to the constitutional promise to reject religious hierarchies in favor of religious equality.

Moreover, government speech has not been limited to parks and plates,73 73.In fact, federal appeals courts have held that speech ranging from advertising banners displayed at public schools, Mech v. Sch. Bd. of Palm Beach Cty., 806 F.3d 1070, 1072 (11th Cir. 2015), to tourism brochures displayed for a fee at state rest areas, Vista-Graphics, Inc. v. Va. Dep’t of Transp., 682 F. App’x 231, 236 (4th Cir. 2017), was government speech, thereby allowing the government to exclude viewpoints it found objectionable.Show More and future decisions may more directly implicate democratic self-governance. Erwin Chemerinsky, for example, has wondered, “Could a city library choose to have only books by Republican authors by saying that it is the government speaking?”74 74.Erwin Chemerinsky, Free Speech, Confederate Flags and License Plates, Orange County Reg. (June 25, 2015, 12:00 AM), http://www.ocregister.com/articles/government-668320-texas-license.html [https://perma.cc/6UWX-PPH4].Show More Or could a government Facebook page eliminate unfavorable hyperlinks or public comments on the grounds that everything on its webpage is government speech?75 75.Cf. Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 331 (1st Cir. 2009) (holding that Town website, including hyperlinks to private websites, was government speech); Page v. Lexington Cty. Sch. Dist. One, 531 F.3d 275, 283–85 (4th Cir. 2008) (holding that school district’s website, which included links to private websites, was government speech).Show More

In fact, Trump’s Twitter feed was the focus of a free speech lawsuit by litigants arguing that the feed was a forum.76 76.Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y. 2018); Knight First Amendment Inst. v. Trump, 928 F.3d 226, 233–34 (2d Cir. 2019).Show More Twitter is a modern-day marketplace of ideas.77 77.Two-thirds of adults in the United States now get some of their news from social media, and almost three-quarters of those on Twitter use it at least in part for news. See Elisa Shearer & Jeffrey Gottfried, News Use Across Social Media Platforms 2017, Pew Res. Ctr. (Sept. 7, 2017), http://www.journalism.org/2017/09/07/news-use-across-social-media-platforms-2017/ [https://perma.cc/Y7ZN-P98R] (finding that 67% of users get news on social media at least occasionally and 74% of Twitter users get news on Twitter).Show More Anyone can follow someone and see their “tweets,” whether they contain news or opinion. Moreover, anyone can then comment on the original tweet, either by replying directly or by retweeting the original tweet with added commentary.78 78.Knight, 928 F.3d at 230.Show More Both replies and retweets are publicly visible and amenable to comment.79 79.Id.Show More As is well known, Donald Trump was a prolific tweeter,80 80.Kevin Breuninger, Trump’s Most Memorable Twitter Bombshells of 2018, CNBC.com (Dec. 31, 2018, 11:44 AM), https://www.cnbc.com/2018/12/31/trumps-top-10-biggest-twitter-bombshells-made-history-in-2018.html [https://perma.cc/F6C2-9ZR7] (noting that Trump averaged nearly 10 tweets per day in 2018).Show More and the tweets from his @realDonaldTrump account generated extensive response and media coverage.81 81.Knight, 928 F.3d at 231 (“The President’s tweets produce an extraordinarily high level of public engagement, typically generating thousands of replies, some of which, in turn, generate hundreds of thousands of additional replies.”).Show More (Although Trump inherited @POTUS from Barack Obama for the duration of his presidency, he preferred @realDonaldTrump, which predated his administration.82 82.Meredith MacLeod, We’ve Read All President Trump’s Tweets, So You Don’t Have to, CTVNews.ca (Apr. 28, 2017, 7:09 PM), https://www.ctvnews.ca/world/analysis-we-ve-read-all-president-trump-s-tweets-so-you-don-t-have-to-1.3389513 [https://perma.cc/ZK4N-7CED].Show More)

Before a court declared his conduct unconstitutional,83 83.Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y. 2018) (“We hold that . . . the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.”); Knight, 928 F.3d at 234 (“Because we agree that in blocking the Individual Plaintiffs the President engaged in prohibited viewpoint discrimination, we affirm.”).Show More Trump had taken to blocking people who criticized him on his @realDonaldTrump account.84 84.Ashley Feinberg, A Running List of People Donald Trump Has Blocked on Twitter, Wired (June 14, 2017, 3:30 PM), https://www.wired.com/story/donald-trump-twitter-blocked/ [https://perma.cc/94KS-VCLZ].Show More He blocked everyday people, celebrities, nonprofit organizations, and even journalists.85 85.Id.Show More Seven of these blocked Twitter users sued Trump, arguing that his actions violated the Free Speech Clause by discriminating against them on the basis of viewpoint.86 86.Knight, 302 F. Supp. 3d at 549, 553.Show More Trump did not deny that he blocked them because he did not like their comments.87 87.Knight, 928 F.3d at 234 (“The President concedes that he blocked the Individual Plaintiffs because they posted tweets that criticized him or his policies.”).Show More Instead, he argued that the act of blocking did not implicate the Free Speech Clause because his Twitter feed was not a public forum run by the government, but rather, was a purely personal account.88 88.Assoc. Press, Judge to Trump: Muting, Not Blocking Twitter Followers, May End Lawsuit, NBCNews.com (Mar. 8, 2018, 2:56 PM), https://www.nbcnews.com/tech/social-media/judge-trump-muting-not-blocking-twitter-followers-may-end-lawsuit-n854951 [https://perma.cc/7SSC-KWC8]. (“The government says Trump’s Twitter feed is a personal account and not a public forum requiring him to welcome all voices.”).Show More

While President, Trump’s claim that his Twitter feed was purely private was untenable, and every court to consider it has firmly rejected his defense.89 89.A district court, Knight, 302 F. Supp. 3d at 549, and Second Circuit panel, Knight, 928 F.3d at 230–31, have both rejected Trump’s claim, and the Second Circuit declined to rehear the case en banc. Knight First Amendment Institute v. Trump, 953 F.3d 216, 217 (2d Cir. 2020).Show More As one court observed, Trump “use[d] the account to take actions that can be taken only by the President as President.”90 90.Knight, 302 F. Supp. 3d at 567.Show More For example, Trump made official proclamations and announced executive policy from his @realDonaldTrump account.91 91.For example, Trump announced his ban on transgender troops for the first time on Twitter. Jessica Estepa, We’re All Atwitter: Three Times President Trump Made Major Announcements Via Tweets, USA Today (Mar. 13, 2018, 4:33 PM), https://www.usatoday.com/story/news/politics/onpolitics/2018/03/13/were-all-atwitter-3-times-president-trump-made-major-announcements-via-tweets/420085002/ [https://perma.cc/D2HC-KC6A].Show More In fact, the National Archives and Records Administration advised that as official records, the @realDonaldTrump tweets must be preserved pursuant to the Presidential Records Act.92 92.Knight, 928 F.3d at 232.Show More In short, Trump’s Twitter feed, including the interactive part, was not purely private speech, and Trump’s actions with regard to it were government actions that are subject to constitutional limits.93 93.Id. at 236 (“In sum, since [Trump] took office, the President has consistently used the Account as an important tool of governance . . . ”).Show More

Given that Trump used his Twitter account for official purposes, the real risk to the interactive part of Trump’s Twitter feed was not that it would be found to be purely private, but that it would be found to be purely governmental.94 94.Cf. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (endorsing “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . ”).Show More After all, if a court had deemed Trump’s feed to be government speech, then Trump could have exerted total control over its content and excluded anyone who criticized him or challenged his claims. In fact, Trump argued in the alternative that “to the extent [his Twitter] Account [was] government-controlled, posts on it are government speech to which the First Amendment does not apply.”95 95.Knight, 928 F.3d at 234; see also id. at 237, 239.Show More

There is no gainsaying the importance of the President’s feed to the marketplace of political ideas and democratic self-governance. Before he was banned for inciting a violent insurrection,96 96.Brian Fung, Twitter Bans President Trump Permanently, CNN Business (Jan. 9, 2021, 9:19 AM ET), https://www.cnn.com/2021/01/08/tech/trump-twitter-ban/index.html [https://perma.cc/6HDT-GTCZ] (quoting Twitter explaining that “we have permanently suspended the account due to the risk of further incitement of violence”).Show More Twitter was one of President Trump’s primary channels for communicating with the public. Given Trump’s love of Twitter, blocking people meant depriving them of a crucial in-real-time source of information.97 97.Even if other people retweet Trump, the blocked user sees only a gray box.Show More As one plaintiff lamented, “I may not be crazy about President Trump, but he is my president, and I want to know what he is saying.”98 98.Rebecca Pilar Buckwalter-Poza, Philip Cohen, Eugene Gu, Holly Figueroa & Brandon Neely, I Was Blocked by @realDonaldTrump, Knight First Amend. Inst. (Mar. 25, 2019), https://knightcolumbia.org/content/i-was-blocked-realdonaldtrump [https://perma.cc/YH5M-ZUMB] (quoting Holly Figueroa) [hereinafter I Was Blocked].Show More

In addition, Trump’s Twitter feed provided a rare forum for the exchange of different points of view. In the past, Americans typically shared a common source of news, which exposed them to a range of viewpoints.99 99.Shanto Iyengar & Kyu S. Hahn, Red Media, Blue Media: Evidence of Ideological Selectivity in Media Use, 59 J. Comm. 19, 20 (2009) (“Forty years ago, the great majority of Americans got their daily news from one of three network newscasts [that] offered a homogeneous and generic ‘point-counterpoint’ perspective on the news, thus ensuring that exposure to the news was a common experience.”).Show More Today, the abundance of news sources allows people to select those outlets that tend to confirm their pre-existing world views.100 100.Patricia Donovan, Study Demonstrates How We Support Our False Beliefs, U. Buff. News Ctr. (Aug. 21, 2009), http://www.buffalo.edu/news/releases/2009/08/10364.html [https://perma.cc/XL9X-Z8LK]. (“[R]ather than search rationally for information that either confirms or disconfirms a particular belief, people actually seek out information that confirms what they already believe.”); see also Brendan Nyhan & Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions, 32 Pol. Behav. 303, 307 (2010) (“[R]espondents may engage in a biased search process, seeking out information that supports their preconceptions and avoiding evidence that undercuts their beliefs.”).Show More Studies show that this is especially true for Trump voters, who have an affinity for conservative media such as Fox News and Breitbart.101 101.Yochai Benkler, Robert Faris, Hal Roberts & Ethan Zuckerman, Study: Breitbart-Led Right-Wing Media Ecosystem Altered Broader Media Agenda, Colum. Journalism Rev. (Mar. 3, 2017), https://www.cjr.org/analysis/breitbart-media-trump-harvard-study.php [https://perma.cc/33JP-HBY5] (noting that Clinton supporters “were highly attentive to traditional media outlets” but Trump supporters inhabited a “distinct and insulated” right-wing media system anchored around Breitbart that “transmit[ted] a hyper-partisan perspective”); see also id. (“[O]ur study suggests that polarization was asymmetric.”); Jeffrey Gottfried, Michael Barthel & Amy Mitchell, Trump, Clinton Voters Divided in Their Main Source for Election News, Pew Res. Ctr. (Jan. 18, 2017), http://www.journalism.org/2017/01/18/trump-clinton-voters-divided-in-their-main-source-for-election-news/ [https://perma.cc/YNL2-2F4J] (noting that Fox News was the main source of news for 40% of Trump voters).Show More Trump’s Twitter feed was arguably one of the few places where people with divergent political outlooks might interact with each other. For the President to block his critics denied them access to a diverse audience and denied them the opportunity to contribute to the formation of public opinion. As one blocked user, and litigant in the suit against Trump, put it, “[b]eing blocked has kept me from participating in critical public conversations.”102 102.I Was Blocked, supra note 98 (quoting Rebecca Buckwalter-Poza); see also id. (quoting Philip Cohen) (“Being blocked by Trump diminished my ability to respond and engage in the political process.”).Show More

Finally, blocking dissenters created a false sense of consensus. It allowed Trump to “create a space on Twitter—where there are millions of people—that he can manipulate to give the impression that more agree with him than actually do.”103 103.I Was Blocked, supra note 98 (quoting Philip Cohen).Show More Erasing opposing viewpoints enhances the persuasiveness of the remaining ones because studies show that positions perceived as popular wield outsized influence.104 104.This proposition, that a position perceived as popular is likely to wield greater influence, was established by the famous Asch studies. In these studies, when subjects were questioned alone, 99% correctly identified the length of a line. When questioned in the presence of those who intentionally gave the same incorrect answer, 70% agreed with the incorrect answer at least once. Solomon E. Asch, Social Psychology 450–59 (1952); see Solomon E. Asch, Studies of Independence and Conformity: A Minority of One Against a Unanimous Majority, 70 Psychol. Monographs: Gen. & Applied 1, 1, 9–24 (1956).Show More “It is a ‘social psychological truism that individuals tend to yield to a majority position even when that position is clearly incorrect.’”105 105.Saumya Manohar, Comment, Look Who’s Talking Now: “Choose Life” License Plates and Deceptive Government Speech, 25 Yale L. & Pol’y Rev. 229, 236 (2006) (quoting Anne Maass & Russell D. Clark, III, Internalization Versus Compliance: Differential Processes Underlying Minority Influence and Conformity, 13 Eur. J. Soc. Psychol. 197, 197 (1983)); see also Stephan Lewandowsky, Ullrich K.H. Ecker & John Cook, Beyond Misinformation: Understanding and Coping with the “Post-Truth” Era, 6 J. Applied Res. Memory & Cognition 353, 361 (2017) (People tend to believe things “that they believe to be widely shared—irrespective of whether or not they are actually widely shared.”).Show More In sum, a free and robust exchange of political ideas should occur on the Twitter feed of the President and other public officials. While Trump is no longer in office, political officials’ use of social media is growing all the time.106 106.See, e.g., Patrick Van Kessel, Regina Widjaya, Sono Shah, Aaron Smith & Adam Hughes, Congress Soars to New Heights on Social Media, Pew Res. Ctr.,(July 16, 2020), https://www.pewresearch.org/internet/2020/07/16/congress-soars-to-new-heights-on-social-media/ [https://perma.cc/JH78-BWU6].Show More Declaring these feeds government speech, subject to total government control, risks distorting the marketplace of political ideas.

2. Capture of Whistleblowers

Potential speech forums are not alone in their importance to democratic self-governance or their vulnerability to First Amendment capture. Government employee speech likewise plays an important role in our democracy, and it has already suffered from the expansion of the government speech doctrine. Citizens in democracies must be able to hold government officials accountable for their actions. To do this, they need information on their public servants.107 107.Lewandowsky, Ecker & Cook, supra note 105, at 354 (“It is a truism that a functioning democracy relies on a well-informed public.”).Show More Because public employees are uniquely well-placed to know what government officials are doing, they are some of the best government whistleblowers.108 108.Pauline T. Kim, Market Norms and Constitutional Values in the Government Workplace, 94 N.C. L. Rev. 601, 642 (2016) (“Because political accountability is the primary means by which the public seeks to ensure that public managers are pursuing public goals, speech by public employees plays a particularly important role in self-governance.”).Show More

Unfortunately, the government speech doctrine’s expansion into the government employee speech context discourages whistleblowing by government employees. Previously, the Free Speech Clause would cover this speech.109 109.Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (holding that the idea “that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens . . . has been unequivocally rejected in numerous prior decisions of this Court.”).Show More It did not always protect it, but the Court would perform a balancing test, weighing the public’s interest in hearing speech on matters of public concern against the government employer’s interest in avoiding disruption in the workplace.110 110.City of San Diego v. Roe, 543 U.S. 77, 82–83 (2004) (describing the Pickering-Connick balancing test).Show More Since the Supreme Court’s decision in Garcetti v. Ceballos,111 111.547 U.S. 410 (2006).Show More however, if the employees’ speech is “pursuant to . . . official duties,” it is essentially the government’s speech, and therefore not covered by the Free Speech Clause.112 112.Id.at 436 (Souter, J., dissenting) (“The majority accepts the fallacy . . . that any statement made within the scope of public employment is (or should be treated as) the government’s own speech.”).Show More Regardless of how important it may be for political accountability, it lies outside free speech protection.113 113.Id. at 421 (majority opinion) (“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”).Show More

Due to this new government speech rule, countless public officials lost constitutional protection for reporting government malfeasance in the course of their official duties.114 114.See, e.g., Caroline Mala Corbin, Government Employee Religion, 49 Ariz. St. L.J. 1193, 1244 (2017) (collecting cases).Show More “In fact, in the years following Garcetti, the lower federal courts denied protection to numerous government employees who objected to their employers’ illegal practices, health and safety violations, and financial improprieties.”115 115.Kim, supra note 108, at 644; see also Mark Strasser, Whistleblowing, Public Employees, and the First Amendment, 60 Clev. St. L. Rev. 975, 993 (2013) (“Regrettably, lower courts have learned the lessons of Garcetti quite well. Numerous individuals have suffered adverse employment actions when seeking to expose the kinds of practices that whistleblower protections are designed to bring to light.”).Show More

If government employees can be fired for trying to hold the government to account, then they may just stop trying. As Helen Louise Norton summarized, the Garcetti rule “allows government officials to punish, and thus deter, whistleblowing and other on-the-job speech that would otherwise inform voters’ views and facilitate their ability to hold the government politically accountable for its choices.” 116 116.Helen Norton, Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression, 59 Duke L.J. 1, 4 (2009).Show More In short, the expansion of the government speech doctrine—essentially the First Amendment capture of government employee speech—has undermined government accountability.

Thanks to the government speech doctrine, the government does not need to overpower to dominate the marketplace of ideas. Rather, it manages to eliminate the competition with a doctrinal sleight of hand. Once a stream of information is labeled governmental, the state may completely control it and exclude any contrary opinion or whistleblowing it does not like. The Free Speech Clause provides no protection in these cases of First Amendment capture. As the Supreme Court itself acknowledged, “while the government-speech doctrine is important—indeed, essential—it is a doctrine that is susceptible to dangerous misuse.”117 117.Matal v. Tam, 137 S. Ct. 1744, 1758 (2017).Show More

III. Solutions to First Amendment Capture

There are two potential approaches to limiting the risks of censorship created by an ever-expanding government speech doctrine. The first is to limit what is classified as government, as opposed to private, speech. But as discussed below, this may be an imperfect solution if the speech is not, in fact, purely private. The second is to change free speech doctrine by recognizing “mixed speech” as a new category of speech protected by the Free Speech Clause. Thus, which approach is preferable may be case-specific, but a reevaluation of the doctrine is ultimately needed.118 118.Note that while this Article explains the usefulness of a mixed speech category in containing the excesses of the government speech doctrine, it does not recapitulate the comprehensive analysis of mixed speech available in earlier work. See generallyCorbin, supra note 15.Show More

A. Private Speech Not Government Speech

The less-government-speech approach dictates that when the status of speech is in dispute, the speech should usually be categorized as private speech rather than government speech. In other words, private speech is the default. If the contested speech is deemed private speech, then the government cannot censor private speakers under the guise of government speech because any viewpoint restrictions on private speech are subject to strict scrutiny under the Free Speech Clause.119 119.Regardless of the forum, whether traditional, designated, limited, or nonpublic, the government may not discriminate on the basis of viewpoint without passing strict scrutiny. Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009); Rosenberger v. Rector & Visitors of Univ. of Va, 515 U.S. 819, 829–30 (1995).Show More And only in the rarest of circumstances will speech regulations survive strict scrutiny.120 120.Indeed, the Court tends to characterize them as “presumptively unconstitutional.” See, e.g., Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (“A law found to discriminate based on viewpoint . . . is ‘presumptively unconstitutional.’”).Show More

Accordingly, a court faced with a claim that a President’s or other politician’s Twitter feed was government speech rather than a government forum hosting private speech should hold that it is a forum for private speech. In this way, the debate on the politician’s policy decisions will remain “uninhibited, robust, and wide-open.”121 121.N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).Show More Everyone would be able to participate in the discussion, and all viewpoints would be aired at one of the few online sites where people with radically different points of view might still interact with each other. Furthermore, the government would no longer be able to manipulate the political conversation to make it seem like its viewpoint was more popular than it really was.122 122.See supra notes 103–105 and accompanying text.Show More

B. Mixed Speech Not Government Speech

The problem with relying on the less-government-speech approach alone is that sometimes the speech in dispute is not actually private speech, or at least it is not only private speech. Take the specialty license plates at issue in Walker v. Texas Division, Sons of Confederate Veterans, Inc., discussed earlier.123 123.135 S. Ct. 2239, 2243 (2015).Show More There is a strong private element. Private individuals select the plate with the message they want, pay extra money for it, and fasten it on their vehicles.124 124.Corbin, supra note 15, at 646–47 (“[N]o one who sees a specialty license plate imprinted with the phrase ‘Choose Life’ would doubt that the owner of that vehicle holds a pro-life viewpoint.”).Show More In my family, we have a “Save the Manatee” specialty license plate because we care enough about these sea creatures to announce that fact and to serve as a “mobile billboard” for their cause.125 125.Cf. Wooley v. Maynard, 430 U.S. 705, 715 (1977) (describing standard license plates “as a ‘mobile billboard’ for the State’s ideological message”).Show More But specialty license plates are also governmental and irreducibly so. After all, the State approves the plates, manufactures them, owns them, and has its name emblazoned across the top.126 126.Corbin, supra note 15, at 647.Show More People will inevitably attribute the plate’s message not just to the car’s owner, but also to the State that issued it. “When the government component in mixed speech is undeniably strong, as it is with specialty license plates, the messages very likely will be linked to the government, regardless of how courts analyze them.”127 127.Id. at 654.Show More

Consequently, a state has a legitimate interest in not endorsing certain messages on plates that bear its name. In Walker, to avoid condoning racism and violating equal protection norms, Texas declined to issue plates with a confederate flag.128 128.Walker, 135 S. Ct. at 2245 (explaining that the state declined the plate because many find the confederate flag offensive and associate it with hate groups); Corbin, supra note 15, at 657 (“States that hoped to keep the Confederate flag off their specialty license plates realized that for many, it represents a celebration of slavery and a not-so-subtly coded message of racial superiority.”).Show More Other states might not want to issue “Say Yes to Jesus” plates to avoid endorsing religion and violating establishment norms.129 129.Corbin, supra note 15, at 659 (“If specialty license plates are treated as purely private speech, then the establishment clause does not forbid, and the free speech clause may require, plates with religious messages. But as discussed above, because the plates are actually mixed speech, the state may well be seen as endorsing these religious messages and will thereby run afoul of the establishment clause.”).Show More Yet, had the Supreme Court held that the license plates—or any other contested speech—were private speech, then the State would not be able to discriminate on the basis of viewpoint.130 130.See supra note 119 and accompanying text (explaining viewpoint regulations are subject to strict scrutiny).Show More If speech is private, then all viewpoints, including racist viewpoints and religious viewpoints, must be allowed.131 131.See supra note 120 and accompanying text (explaining speech regulations subject to strict scrutiny are almost never constitutional).Show More This viewpoint-neutral regime would force the government to associate itself with messages that it should not endorse or tolerate. The same problem may present itself in other situations, whether it be speech by a police chief,132 132.Cf. Cochran v. City of Atlanta, 289 F. Supp. 3d 1276, 1289 (N.D. Ga. 2017) (involving an anti-LGBTQ book written by fire chief and disseminated at work).Show More commemorative bricks on school property,133 133.Cf. Kiesinger v. Mex. Acad. & Cent. Sch., 427 F. Supp. 2d 182, 185 (N.D.N.Y. 2006) (involving commemorative bricks on school property); Demmon v. Loudoun Cty. Pub. Sch., 342 F. Supp. 2d 474, 476 (E.D. Va. 2004) (involving bricks on school property).Show More or advertisements on public transportation.134 134.Am. Freedom Def. Initiative v. King Cty., 796 F.3d 1165, 1168 (9th Cir. 2015) (involving advertisements on city’s transit system); Women’s Health Link, Inc. v. Fort Wayne Pub. Transp. Corp., 826 F.3d 947, 949–50 (7th Cir. 2016) (involving advertisements on city’s buses); see also Corbin, supra note 15, at 623–26 (describing examples of mixed speech).Show More

Under the current binary regime, where speech must be labeled either private speech or government speech, there seems to be no satisfactory solution when elements of both are undeniably present. Labeling a contested stream of speech as government speech removes it entirely from free speech protection, creating the problem of First Amendment capture and government censorship.135 135.See supra Part II.B.Show More But insisting that such speech is private speech, with its bar on viewpoint discrimination, risks giving short shrift to the government interests in disassociating from certain speech.136 136.Corbin, supra note 15, at 656 (“From the government’s perspective, a viewpoint neutrality regime would be objectionable because it would force the government to associate itself with messages that it would not voluntarily endorse or tolerate.”).Show More

A third option is warranted. When contested speech cannot be fairly treated as purely private or purely governmental, it should be treated as falling within a new category: mixed speech.137 137.Id. at 671–72.Show More That is, instead of treating mixed speech as private speech or government speech, acknowledge that it is mixed speech, with both private and government interests present. In contrast to strict scrutiny (for private speech) or no scrutiny (for government speech), any government restrictions on viewpoint would be subject to a rigorous intermediate scrutiny.138 138.Id. at 675 (“This three-part test is a rigorous intermediate scrutiny. Its ‘intermediate scrutiny’ counterpart is the heightened scrutiny given to sex classifications under equal protection rather than the cursory scrutiny given to content-neutral restrictions on expressive conduct.”).Show More

A rigorous intermediate scrutiny means that contested streams of information would no longer fall outside the purview of the Free Speech Clause, thereby guarding against attempts to suppress contrary viewpoints simply because the government disapproves of them. At the same time, it would not leave the government without any control over speech that may be attributed to it. If the government articulates a strong enough reason, such as complying with constitutional values (e.g., equal protection or establishment), and a sufficiently tailored means, then the regulation could survive intermediate scrutiny.

Labeling speech as government speech makes it too easy for the government to censor speech it does not like. Classifying such speech as private speech (when appropriate) and recognizing a category of mixed speech (when the government component precludes classification as private speech) would help forestall the expansion of government speech into realms where it does not belong, and as a result, would preserve the marketplace of ideas and protect government whistleblowers.

Conclusion

Although inescapable and not necessarily detrimental, government speech has the potential to undermine the necessary mechanisms of democracy. In particular, the expansion of the government speech doctrine allows for First Amendment capture. Once speech is labeled government speech, the government may exercise complete control over it. Such control may stymy robust political discussion needed for informed political decision-making or suppress whistleblowing needed for political accountability.

One solution to First Amendment capture is to categorize speech as private speech, rather than government speech, so that any viewpoint-based restrictions are presumptively unconstitutional. Another is to recognize a new category of speech—mixed speech—where viewpoint regulations must pass intermediate scrutiny, thereby allowing the government to regulate when it has a valid reason, yet at the same time preventing First Amendment capture and censorship.

  1. * Professor of Law and Dean’s Distinguished Scholar, University of Miami School of Law. B.A., Harvard University; J.D., Columbia Law School. I would like to thank the participants at the Sixth Annual Freedom of Expression Scholars Conference at Yale Law School. I would also like to thank Michael Cheah and Jean Phillip Shami, my research assistants Alejandra De La Camera and Luciana Jhon Urranaga, and the Virginia Law Review Online staff. Copyright © 2021 by Caroline Mala Corbin. ↑

  2. See infra notes 21–25 and accompanying text. ↑

  3. See generally Abner S. Greene, Government of the Good, 53 Vand. L. Rev

    .

    1, 7–12 (2000) (listing four ways that government speech can be viewed as an affirmative good). ↑

  4. See, e.g., John E. Nowak, Using the Press Clause to Limit Government Speech, 30 Ariz. L. Rev

    .

    1, 9 (1988) (“In recent years, perhaps due to an awareness of the changing factors that increase the danger to our society from government speech, several scholars have examined the topic of whether the judiciary could use the free speech clause of first amendment to limit governmental speech.”); Steven Shiffrin, Government Speech, 27 UCLA L. Rev

    .

    565, 570 (1980) (“The government speech problem is to determine when and by what means government may promote controversial values and when it may not.”); see also Richard Delgado, The Language of the Arms Race: Should the People Limit Government Speech?, 64 B.U. L. Rev

    .

    961 (1984) (discussing prominent themes in the government speech debate); Robert D. Kamenshine, The First Amendment’s Implied Political Establishment Clause, 67 Cal. L. Rev

    .

    1104 (1979) (arguing that the First Amendment prohibits government from advocating political ideas); Mark G. Yudof, When Governments Speak: Toward a Theory of Government Expression and the First Amendment, 57 Tex. L. Rev

    .

    863 (1979) (arguing that governments should not have free speech rights); Edward H. Ziegler, Jr., Government Speech and the Constitution: The Limits of Official Partisanship, 21 B.C. L. Rev

    .

    578 (1980) (arguing that partisan government speech does not and should not receive First Amendment protection). ↑

  5. See, e.g., Kamenshine, supra note 3, at 1104 (“[P]articipation by the government in the dissemination of political ideas poses a threat to open public debate . . . .”); Shiffrin, supra note 3, at 601 (“[O]ne of the problems to be faced in assessing government speech [is] the concern that government speech could result in unacceptable domination of the marketplace and the need for measures to confine the danger.”). ↑

  6. See infra Part I (describing the development of the government speech doctrine). ↑

  7. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2235 (2015) (“The Court has also said that ‘government speech’ escapes First Amendment strictures.”). ↑

  8. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828–29 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”). ↑

  9. See infra Part I. ↑

  10. See infra notes 26–34 and accompanying text (discussing cases involving specialty license plates and monuments in public parks). ↑

  11. Governments often provide spaces, such as the plaza in front of the town hall, for private citizens to speak. These are known as forums. Different doctrinal rules might apply depending on the type of forum, but viewpoint regulations are always subject to strict scrutiny. See generally Lyrissa Lidsky, Public Forum 2.0, 91 B.U. L. Rev

    .

    1975, 1980–89 (2011) (describing public forum doctrine). ↑

  12. See, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Public Perceptions of Government Speech, 2017 Sup. Ct. Rev

    .

    33, 34–35 (2017) (“[W]ithout some meaningful limit on the government’s ability to claim expression as its own, the government speech doctrine could eviscerate the bar on viewpoint discrimination among private speakers.”). ↑

  13. Rachel E. Barkow, Insulating Agencies: Avoiding Agency Capture Through Institutional Design, 89 Tex. L. Rev

    .

    15, 21 n.23 (2010) (“Capture, for the purposes of agency design, may be defined as responsiveness to the desires of the industry or groups being regulated.”). ↑

  14. See infra Part III.B. ↑

  15. In contrast, regulations of private speech regularly trigger strict scrutiny while regulations of government speech trigger no scrutiny at all. See infra Part I. ↑

  16. I have discussed this proposal in an earlier work. See Caroline Mala Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83 N.Y.U. L. Rev

    .

    605, 675–77 (2008) [hereinafter Corbin, Mixed Speech]. Unlike this Article, the earlier one did not focus on the problems of First Amendment capture. ↑

  17. This Essay focuses on how the Free Speech Clause itself might be mobilized, though obviously solutions might be found elsewhere as well. ↑

  18. Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 574 (2005) (Souter, J., dissenting) (“The government-speech doctrine is relatively new, and correspondingly imprecise.”). The 1991 Rust v. Sullivan, 500 U.S. 173 (1991), decision is now heralded as one of the first government speech cases, though the decision itself did not use that term. Rather, a decade later Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001), identified Rust as a government speech decision: “The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding.” Id. at 541. ↑

  19. Matal v. Tam, 137 S. Ct. 1744, 1757 (2017) (“[O]ur cases recognize that ‘[t]he Free Speech Clause . . . does not regulate government speech.’”). ↑

  20. Iancu v. Brunetti, 139 S. Ct. 2294, 2299 (2019) (“The government may not discriminate against speech based on the ideas or opinions it conveys.”); see also supra note 7. ↑

  21. Johanns, 544 U.S. at 553. ↑

  22. Matal, 137 S. Ct. at 1757 (“[I]mposing a requirement of viewpoint-neutrality on government speech would be paralyzing.”). ↑

  23. Id. ↑

  24. Id. at 1758. ↑

  25. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2246 (2015). ↑

  26. Id. at 2246 (“But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.”). ↑

  27. 555 U.S. 460 (2009). ↑

  28. 135 S. Ct. 2239 (2015). ↑

  29. Pleasant Grove City, 555 U.S. at 466. ↑

  30. Id. ↑

  31. Id. at 472. ↑

  32. Walker, 135 S. Ct. at 2245. ↑

  33. Id. at 2246. ↑

  34. Id. at 2253. ↑

  35. Id. at 2245; see also id. at 2245–46 (“Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.”). ↑

  36. Cf. Plyler v. Doe, 457 U.S. 202, 213 (1982) (“The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.”). ↑

  37. Pleasant Grove City v. Summum, 555 U.S. 460, 468 (2009) (“[G]overnment speech must comport with the Establishment Clause.”). ↑

  38. Walker, 135 S. Ct. at 2245 (“[I]t is the democratic electoral process that first and foremost provides a check on government speech.”). ↑

  39. Pleasant Grove City, 555 U.S. at 468 (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000)). ↑

  40. Id. at 468–69 (quoting Bd. of Regents, 529 U.S. at 235). ↑

  41. Cf. Kent Greenawalt, Free Speech Justifications, 89 Colum. L. Rev

    .

    119, 120 (1989) (arguing that any attempt to articulate a single unifying theory of free speech risks oversimplification). ↑

  42. See, e.g., Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . . That at any rate is the theory of our Constitution.”). ↑

  43. See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1978) (“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”). ↑

  44. See, e.g., C. Edwin Baker, Harm, Liberty, and Free Speech, 70 S. Cal. L. Rev

    .

    979, 980 (1997) (“Speech can relate to autonomy in two ways: as itself an exercise of autonomy or as an informational resource arguably essential for meaningful exercise of autonomy.”). ↑

  45. Yudof, supra note 3, at 865 (“Government expression is critical to the operation of a democratic polity . . .”). ↑

  46. Ziegler, supra note 3, at 585–86 (“If the democratic process is to operate with a minimum of distortion, government information and communication functions in connection with structured political questions must be limited by law to those activities necessary for the effective operation of the process.”). ↑

  47. Greene, supra note 2, at 8–11. As Greene points out, government can make distinctive contributions to public debate. Id. at 8. For example, it can subsidize arts and science. Id. at 9. It can use its power of persuasion to alter social norms regarding race, smoking, and overeating. Id. at 10. Government can also check concentrations of private power. Id. at 11; see also John Fee, Speech Discrimination, 85 B.U. L. Rev. 1103, 1137 (2005). (“[G]overnment can and should make a positive difference in the world of ideas . . .”). ↑

  48. See, e.g., Shiffrin, supra note 3, at 607 (“If a system of free expression is to be preserved, either custom, or statutes, or constitutionally based limitations must provide assurances that government speech will not unfairly dominate the intellectual marketplace.”). ↑

  49. See Delgado, supra note 3, at 961–62. ↑

  50. Greene, supra note 2, at 5 (“Government may, and should, use its speech powers to advance specific conceptions of the good, even if those conceptions are contested, controversial, or seen as favoring a particular viewpoint.”). ↑

  51. Greene, supra note 2, at 27. ↑

  52. Yudof, supra note 3, at 897. ↑

  53. Greene, supra note 2, at 27 (“[A]ctual monopolization [of the speech market] should be understood to violate the Constitution.”); see also Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 Iowa L. Rev. 1377, 1487 (2001) (“We conclude that government speech should receive little or no immunity from the rules that otherwise apply to government regulations when the government’s speech creates a monopoly for a particular point of view.”). ↑

  54. See, e.g., Steven G. Gey, Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?, 95 Iowa L. Rev.

     

    1259, 1264 (2010) (“The real point of these [government speech] cases may not be, as the Court innocuously suggests, to facilitate government speech. Rather, the point may be to give the government another tool with which to silence its critics.”). ↑

  55. See, e.g., Daniel J. Hemel & Lisa Larrimore Ouellette, Public Perceptions of Government Speech, 2017 Sup. Ct. Rev

    .

    33, 34–35 (2017) (“[W]ithout some meaningful limit on the government’s ability to claim expression as its own, the government speech doctrine could eviscerate the bar on viewpoint discrimination among private speakers.”). ↑

  56. Barkow, supra note 12, at 21 n.23 (2010) (“Capture, for the purposes of agency design, may be defined as responsiveness to the desires of the industry or groups being regulated.”). ↑

  57. See supra notes 41–42 and accompanying text. ↑

  58. 555 U.S. 460 (2009). ↑

  59. Id. at 464–65. ↑

  60. Id. at 465. ↑

  61. Summum v. Pleasant Grove City, 483 F.3d 1044, 1050–54, 1057 (10th Cir. 2007). ↑

  62. Pleasant Grove City, 555 U.S. at 464. ↑

  63. “First surfacing in the late 1980s, specialty license plates are now available in most states.” The number of choices varies, with some states offering more than a hundred different options. Corbin, supra note 15, at 608–09. ↑

  64. Hill v. Kemp, 478 F.3d 1236, 1239 (10th Cir. 2007); ACLU of Tenn. v. Bredesen, 441 F.3d 370, 371–72 (6th Cir. 2006); Henderson v. Stalder, 407 F.3d 351, 352 (5th Cir. 2005); Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 787–88 (4th Cir. 2004). ↑

  65. Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2243–44 (2015). ↑

  66. Id. at 2245. ↑

  67. Id. ↑

  68. See, e.g., ACLU of N.C. v. Tennyson, 815 F.3d 183, 185 (4th Cir. 2016) (allowing North Carolina to issue pro-life specialty license plates without issuing pro-choice plates). ↑

  69. In each case, the court held that the speech was not private speech in a forum, but rather government speech outside the protection of the Free Speech Clause. See supra note 10 (describing forums as government-owned spaces open to private speakers and subject to the Free Speech Clause). ↑

  70. Cf. Aleksandra Sandstrom, Majority of States Have All-Christian Congressional Delegations, Pew Res. Ctr

    .

    (Mar. 21, 2017), https://www.pewresearch.org/fact-tank/2017/03/21/majority-of-states-have-all-christian-congressional-delegations/ [https://perma.cc/U6C3-3U6Y] (“The vast majority of the nation’s federal lawmakers (91%) describe themselves as Christians, compared with 71% of U.S. adults who say the same.”). ↑

  71. For example, municipalities across the country erect a nativity scene, which depicts the birth of Jesus Christ, during Christmastime. See, e.g., Freedom from Religion Found., Inc. v. City of Warren, 707 F.3d 686, 689–90 (6th Cir. 2013) (upholding holiday display with nativity in atrium of civic center despite refusing to include Winter Solstice display); Wells v. City & Cty. of Denver, 257 F.3d 1132, 1152–53 (10th Cir. 2002) (upholding City and County Building’s holiday display with nativity scene despite rejecting Winter Solstice sign). ↑

  72. For example, in addition to displays, many towns and cities open their legislative sessions with Christian prayers. See, e.g., Town of Greece v. Galloway, 572 U.S. 565, 591–92 (2014) (upholding town’s practice of starting town board meetings with prayer despite most prayers being overwhelmingly Christian). ↑

  73. Cf. Caroline Mala Corbin, Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. Rev

    .

    1545, 1582 (2010) (“The power of government expression to reinforce the outsider status of certain groups should not be underestimated. While many factors determine a group’s status, symbols of government are one of them, and government’s religious speech signals who belongs and who does not, who is preferred and who is second-class.”). ↑

  74. In fact, federal appeals courts have held that speech ranging from advertising banners displayed at public schools, Mech v. Sch. Bd. of Palm Beach Cty., 806 F.3d 1070, 1072 (11th Cir. 2015), to tourism brochures displayed for a fee at state rest areas, Vista-Graphics, Inc. v. Va. Dep’t of Transp., 682 F. App’x 231, 236 (4th Cir. 2017), was government speech, thereby allowing the government to exclude viewpoints it found objectionable. ↑

  75. Erwin Chemerinsky, Free Speech, Confederate Flags and License Plates, Orange County Reg. (June 25, 2015, 12:00 AM), http://www.ocregister.com/articles/government-668320-texas-license.html [https://perma.cc/6UWX-PPH4]. ↑

  76. Cf. Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 331 (1st Cir. 2009) (holding that Town website, including hyperlinks to private websites, was government speech); Page v. Lexington Cty. Sch. Dist. One, 531 F.3d 275, 283–85 (4th Cir. 2008) (holding that school district’s website, which included links to private websites, was government speech). ↑

  77. Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y. 2018); Knight First Amendment Inst. v. Trump, 928 F.3d 226, 233–34 (2d Cir. 2019). ↑

  78. Two-thirds of adults in the United States now get some of their news from social media, and almost three-quarters of those on Twitter use it at least in part for news. See Elisa Shearer & Jeffrey Gottfried, News Use Across Social Media Platforms 2017, Pew Res. Ctr

    .

    (Sept. 7, 2017), http://www.journalism.org/2017/09/07/news-use-across-social-media-platforms-2017/ [https://perma.cc/Y7ZN-P98R] (finding that 67% of users get news on social media at least occasionally and 74% of Twitter users get news on Twitter). ↑

  79. Knight, 928 F.3d at 230. ↑

  80. Id. ↑

  81. Kevin Breuninger, Trump’s Most Memorable Twitter Bombshells of 2018, CNBC.com (Dec. 31, 2018, 11:44 AM), https://www.cnbc.com/2018/12/31/trumps-top-10-biggest-twitter-bombshells-made-history-in-2018.html [https://perma.cc/F6C2-9ZR7] (noting that Trump averaged nearly 10 tweets per day in 2018). ↑

  82. Knight, 928 F.3d at 231 (“The President’s tweets produce an extraordinarily high level of public engagement, typically generating thousands of replies, some of which, in turn, generate hundreds of thousands of additional replies.”). ↑

  83. Meredith MacLeod, We’ve Read All President Trump’s Tweets, So You Don’t Have to, CTVNews.ca (Apr. 28, 2017, 7:09 PM), https://www.ctvnews.ca/world/analysis-we-ve-read-all-president-trump-s-tweets-so-you-don-t-have-to-1.3389513 [https://perma.cc/ZK4N-7CED]. ↑

  84. Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y. 2018) (“We hold that . . . the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.”); Knight, 928 F.3d at 234 (“Because we agree that in blocking the Individual Plaintiffs the President engaged in prohibited viewpoint discrimination, we affirm.”). ↑

  85. Ashley Feinberg, A Running List of People Donald Trump Has Blocked on Twitter, Wired (June 14, 2017, 3:30 PM), https://www.wired.com/story/donald-trump-twitter-blocked/ [https://perma.cc/94KS-VCLZ]. ↑

  86. Id.

     

    ↑

  87. Knight, 302 F. Supp. 3d at 549, 553. ↑

  88. Knight, 928 F.3d at 234 (“The President concedes that he blocked the Individual Plaintiffs because they posted tweets that criticized him or his policies.”). ↑

  89. Assoc. Press, Judge to Trump: Muting, Not Blocking Twitter Followers, May End Lawsuit, NBCNews.com (Mar. 8, 2018, 2:56 PM), https://www.nbcnews.com/tech/social-media/judge-trump-muting-not-blocking-twitter-followers-may-end-lawsuit-n854951 [https://perma.cc/7SSC-KWC8]. (“The government says Trump’s Twitter feed is a personal account and not a public forum requiring him to welcome all voices.”). ↑

  90. A district court, Knight, 302 F. Supp. 3d at 549, and Second Circuit panel, Knight, 928 F.3d at 230–31, have both rejected Trump’s claim, and the Second Circuit declined to rehear the case en banc. Knight First Amendment Institute v. Trump, 953 F.3d 216, 217 (2d Cir. 2020). ↑

  91. Knight, 302 F. Supp. 3d at 567. ↑

  92. For example, Trump announced his ban on transgender troops for the first time on Twitter. Jessica Estepa, We’re All Atwitter: Three Times President Trump Made Major Announcements Via Tweets, USA Today (Mar. 13, 2018, 4:33 PM), https://www.usatoday.com/story/news/politics/onpolitics/2018/03/13/were-all-atwitter-3-times-president-trump-made-major-announcements-via-tweets/420085002/ [https://perma.cc/D2HC-KC6A]. ↑

  93. Knight, 928 F.3d at 232. ↑

  94. Id. at 236 (“In sum, since [Trump] took office, the President has consistently used the Account as an important tool of governance . . . ”). ↑

  95. Cf. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (endorsing “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . ”). ↑

  96. Knight, 928 F.3d at 234; see also id. at 237, 239. ↑

  97. Brian Fung, Twitter Bans President Trump Permanently, CNN Business (Jan. 9, 2021, 9:19 AM ET), https://www.cnn.com/2021/01/08/tech/trump-twitter-ban/index.html [https://perma.cc/6HDT-GTCZ] (quoting Twitter explaining that “we have permanently suspended the account due to the risk of further incitement of violence”). ↑

  98. Even if other people retweet Trump, the blocked user sees only a gray box. ↑

  99. Rebecca Pilar Buckwalter-Poza, Philip Cohen, Eugene Gu, Holly Figueroa & Brandon Neely, I Was Blocked by @realDonaldTrump, Knight First Amend. Inst

    .

    (Mar. 25, 2019), https://knightcolumbia.org/content/i-was-blocked-realdonaldtrump [https://perma.cc/YH5M-ZUMB] (quoting Holly Figueroa) [hereinafter I Was Blocked]. ↑

  100. Shanto Iyengar & Kyu S. Hahn, Red Media, Blue Media: Evidence of Ideological Selectivity in Media Use, 59 J. Comm

    .

    19, 20 (2009) (“Forty years ago, the great majority of Americans got their daily news from one of three network newscasts [that] offered a homogeneous and generic ‘point-counterpoint’ perspective on the news, thus ensuring that exposure to the news was a common experience.”). ↑

  101. Patricia Donovan, Study Demonstrates How We Support Our False Beliefs, U. Buff. News Ctr. (Aug. 21, 2009), http://www.buffalo.edu/news/releases/2009/08/10364.html [https://perma.cc/XL9X-Z8LK]. (“[R]ather than search rationally for information that either confirms or disconfirms a particular belief, people actually seek out information that confirms what they already believe.”); see also Brendan Nyhan & Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions, 32 Pol. Behav

    .

    303, 307 (2010) (“[R]espondents may engage in a biased search process, seeking out information that supports their preconceptions and avoiding evidence that undercuts their beliefs.”). ↑

  102. Yochai Benkler, Robert Faris, Hal Roberts & Ethan Zuckerman, Study: Breitbart-Led Right-Wing Media Ecosystem Altered Broader Media Agenda, Colum. Journalism Rev

    .

    (Mar. 3, 2017), https://www.cjr.org/analysis/breitbart-media-trump-harvard-study.php [https://perma.cc/33JP-HBY5] (noting that Clinton supporters “were highly attentive to traditional media outlets” but Trump supporters inhabited a “distinct and insulated” right-wing media system anchored around Breitbart that “transmit[ted] a hyper-partisan perspective”); see also id. (“[O]ur study suggests that polarization was asymmetric.”); Jeffrey Gottfried, Michael Barthel & Amy Mitchell, Trump, Clinton Voters Divided in Their Main Source for Election News, Pew Res. Ctr

    .

    (Jan. 18, 2017), http://www.journalism.org/2017/01/18/trump-clinton-voters-divided-in-their-main-source-for-election-news/ [https://perma.cc/YNL2-2F4J] (noting that Fox News was the main source of news for 40% of Trump voters). ↑

  103. I Was Blocked, supra note 98 (quoting Rebecca Buckwalter-Poza); see also id. (quoting Philip Cohen) (“Being blocked by Trump diminished my ability to respond and engage in the political process.”). ↑

  104. I Was Blocked, supra note 98 (quoting Philip Cohen). ↑

  105. This proposition, that a position perceived as popular is likely to wield greater influence, was established by the famous Asch studies. In these studies, when subjects were questioned alone, 99% correctly identified the length of a line. When questioned in the presence of those who intentionally gave the same incorrect answer, 70% agreed with the incorrect answer at least once. Solomon E. Asch, Social Psychology 450–59 (1952); see Solomon E. Asch, Studies of Independence and Conformity: A Minority of One Against a Unanimous Majority, 70 Psychol. Monographs: Gen. & Applied 1, 1, 9–24 (1956). ↑

  106. Saumya Manohar, Comment, Look Who’s Talking Now: “Choose Life” License Plates and Deceptive Government Speech, 25 Yale L. & Pol’y Rev

    .

    229, 236 (2006) (quoting Anne Maass & Russell D. Clark, III, Internalization Versus Compliance: Differential Processes Underlying Minority Influence and Conformity, 13 Eur. J. Soc. Psychol

    .

    197, 197 (1983)); see also Stephan Lewandowsky, Ullrich K.H. Ecker & John Cook, Beyond Misinformation: Understanding and Coping with the “Post-Truth” Era, 6 J. Applied Res. Memory & Cognition 353, 361 (2017) (People tend to believe things “that they believe to be widely shared—irrespective of whether or not they are actually widely shared.”). ↑

  107. See, e.g., Patrick Van Kessel, Regina Widjaya, Sono Shah, Aaron Smith & Adam Hughes, Congress Soars to New Heights on Social Media, Pew Res. Ctr.

    ,

    (July 16, 2020), https://www.pewresearch.org/internet/2020/07/16/congress-soars-to-new-heights-on-social-media/ [https://perma.cc/JH78-BWU6]. ↑

  108. Lewandowsky, Ecker & Cook, supra note 105, at 354 (“It is a truism that a functioning democracy relies on a well-informed public.”). ↑

  109. Pauline T. Kim, Market Norms and Constitutional Values in the Government Workplace, 94 N.C. L. Rev

    .

    601, 642 (2016) (“Because political accountability is the primary means by which the public seeks to ensure that public managers are pursuing public goals, speech by public employees plays a particularly important role in self-governance.”). ↑

  110. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (holding that the idea “that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens . . . has been unequivocally rejected in numerous prior decisions of this Court.”). ↑

  111. City of San Diego v. Roe, 543 U.S. 77, 82–83 (2004) (describing the Pickering-Connick balancing test). ↑

  112. 547 U.S. 410 (2006). ↑

  113. Id. at 436 (Souter, J., dissenting) (“The majority accepts the fallacy . . . that any statement made within the scope of public employment is (or should be treated as) the government’s own speech.”). ↑

  114. Id. at 421 (majority opinion) (“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”). ↑

  115. See, e.g., Caroline Mala Corbin, Government Employee Religion, 49 Ariz. St. L.J

    .

    1193, 1244 (2017) (collecting cases). ↑

  116. Kim, supra note 108, at 644; see also Mark Strasser, Whistleblowing, Public Employees, and the First Amendment, 60 Clev. St. L. Rev

    .

    975, 993 (2013) (“Regrettably, lower courts have learned the lessons of Garcetti quite well. Numerous individuals have suffered adverse employment actions when seeking to expose the kinds of practices that whistleblower protections are designed to bring to light.”). ↑

  117. Helen Norton, Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression, 59 Duke L.J. 1, 4 (2009). ↑

  118. Matal v. Tam, 137 S. Ct. 1744, 1758 (2017). ↑

  119. Note that while this Article explains the usefulness of a mixed speech category in containing the excesses of the government speech doctrine, it does not recapitulate the comprehensive analysis of mixed speech available in earlier work. See generally Corbin, supra note 15. ↑

  120. Regardless of the forum, whether traditional, designated, limited, or nonpublic, the government may not discriminate on the basis of viewpoint without passing strict scrutiny. Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009); Rosenberger v. Rector & Visitors of Univ. of Va, 515 U.S. 819, 829–30 (1995). ↑

  121. Indeed, the Court tends to characterize them as “presumptively unconstitutional.” See, e.g., Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (“A law found to discriminate based on viewpoint . . . is ‘presumptively unconstitutional.’”). ↑

  122. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). ↑

  123. See supra notes 103–105 and accompanying text. ↑

  124. 135 S. Ct. 2239, 2243 (2015). ↑

  125. Corbin, supra note 15, at 646–47 (“[N]o one who sees a specialty license plate imprinted with the phrase ‘Choose Life’ would doubt that the owner of that vehicle holds a pro-life viewpoint.”). ↑

  126. Cf. Wooley v. Maynard, 430 U.S. 705, 715 (1977) (describing standard license plates “as a ‘mobile billboard’ for the State’s ideological message”). ↑

  127. Corbin, supra note 15, at 647. ↑

  128. Id. at 654. ↑

  129. Walker, 135 S. Ct. at 2245 (explaining that the state declined the plate because many find the confederate flag offensive and associate it with hate groups); Corbin, supra note 15, at 657 (“States that hoped to keep the Confederate flag off their specialty license plates realized that for many, it represents a celebration of slavery and a not-so-subtly coded message of racial superiority.”). ↑

  130. Corbin, supra note 15, at 659 (“If specialty license plates are treated as purely private speech, then the establishment clause does not forbid, and the free speech clause may require, plates with religious messages. But as discussed above, because the plates are actually mixed speech, the state may well be seen as endorsing these religious messages and will thereby run afoul of the establishment clause.”). ↑

  131. See supra note 119 and accompanying text (explaining viewpoint regulations are subject to strict scrutiny). ↑

  132. See supra note 120 and accompanying text (explaining speech regulations subject to strict scrutiny are almost never constitutional). ↑

  133. Cf. Cochran v. City of Atlanta, 289 F. Supp. 3d 1276, 1289 (N.D. Ga. 2017) (involving an anti-LGBTQ book written by fire chief and disseminated at work). ↑

  134. Cf. Kiesinger v. Mex. Acad. & Cent. Sch., 427 F. Supp. 2d 182, 185 (N.D.N.Y. 2006) (involving commemorative bricks on school property); Demmon v. Loudoun Cty. Pub. Sch., 342 F. Supp. 2d 474, 476 (E.D. Va. 2004) (involving bricks on school property). ↑

  135. Am. Freedom Def. Initiative v. King Cty., 796 F.3d 1165, 1168 (9th Cir. 2015) (involving advertisements on city’s transit system); Women’s Health Link, Inc. v. Fort Wayne Pub. Transp. Corp., 826 F.3d 947, 949–50 (7th Cir. 2016) (involving advertisements on city’s buses); see also Corbin, supra note 15, at 623–26 (describing examples of mixed speech). ↑

  136. See supra Part II.B. ↑

  137. Corbin, supra note 15, at 656 (“From the government’s perspective, a viewpoint neutrality regime would be objectionable because it would force the government to associate itself with messages that it would not voluntarily endorse or tolerate.”). ↑

  138. Id. at 671–72. ↑

  139. Id. at 675 (“This three-part test is a rigorous intermediate scrutiny. Its ‘intermediate scrutiny’ counterpart is the heightened scrutiny given to sex classifications under equal protection rather than the cursory scrutiny given to content-neutral restrictions on expressive conduct.”). ↑

Race, Ramos, and the Second Amendment Standard of Review

Gun control in the United States has a racist history. Nevertheless, federal courts and academics have invoked Southern gun restrictions enacted after the Civil War to suggest that history supports stringent regulation of the right to bear arms. We argue that courts’ reliance on these restrictions is illegitimate. Drawing on original research, we reveal how the post-war South restricted gun-ownership for racist reasons, deployed its new laws to disarm free Blacks, yet allowed whites to bear arms with near impunity. We then show how modern reliance on these laws contravenes the Supreme Court’s decision in Ramos v. Louisiana, which deemed similarly tainted statutes unconstitutional. Since the Court will soon consider the validity of modern limits on concealed carry, placing Southern gun restrictions in their proper historical context matters today more than ever. While Southern gun control after the Civil War might tell us something about how the South sought to preserve white supremacy, it tells us almost nothing about the true scope of the Second Amendment.

Introduction

Imagine that a federal court must decide whether some challenged state action impermissibly burdens a constitutional right; say, the First-Amendment right to peacefully assemble. To discern how “fundamental” that right is, the court surveys the historical burdens past state legislatures have imposed upon it. It turns out that several states throughout the South enacted unlawful-assembly statutes from about 1870 to 1920. Relying on those historical restrictions, the court determines that it was then broadly agreed that states could curtail peaceful assembly. And that historical evidence, in the court’s view, shows that such a right must not be very “fundamental.” So on that basis, it upholds a modern law that likewise infringes the right to assemble.

But imagine, too, that the historical evidence the court relied upon was “tainted.” Further research reveals that Southern states enacted unlawful-assembly statutes in that period for racist reasons and enforced them disproportionately against racial minorities. Fearing newly freed slaves’ participation in political life, states passed facially neutral restrictions that they deployed in practice to bust up minority gatherings. The modern court invoking these laws apparently never discerned that critical context, taking them instead at face-value. Would anyone think the court wise to have relied on such tainted history in diluting modern assembly rights?

The answer, surely, is “no.” As the Supreme Court explained last year in Ramos v. Louisiana, laws enacted for racially discriminatory reasons that continue to burden constitutional rights deserve special scrutiny.1 1.140 S. Ct. 1390, 1410 (2020).Show More “[T]he racially discriminatory reasons” for which states originally adopted such laws cannot simply be “[l]ost in the accounting.”2 2.Id. at 1401.Show More To the contrary, laws’ “racially biased origins . . . uniquely matter,” especially when those laws continue to burden rights enshrined in the Constitution.3 3.Id. at 1408 (Sotomayor, J., concurring).Show More In Ramos itself, for instance, the Court deemed unconstitutional tainted state laws that denied criminal defendants their Sixth-Amendment right to be convicted only by a unanimous jury.4 4.Id. at 1394–95.Show More

But if it’s really so clear that courts must discount racially tainted laws in their calculus of how “fundamental” society considers a right, then something has gone seriously awry in our federal courts in the context of another constitutional guarantee: the Second Amendment. In its Heller decision, the Supreme Court recognized that the Second Amendment protects an individual right to keep arms.5 5.District of Columbia v. Heller, 554 U.S. 570, 592 (2008).Show More Two years later, the Court’s McDonald decision incorporated that right against the states.6 6.McDonald v. City of Chicago, Ill., 561 U.S. 742, 780 (2010). Uncertainty lingers over how the Second Amendment was incorporated against the states. In McDonald, four Justices opted to incorporate the Second Amendment via the Fourteenth Amendment’s Due Process Clause. Id. at 742. Justice Thomas wrote alone to suggest that the Fourteenth Amendment’s Privileges or Immunities Clause was the proper vehicle to accomplish incorporation. Id. at 838 (Thomas, J., concurring). Whether the right is incorporated under the Due Process Clause or the Privileges or Immunities Clause matters. The Due Process Clause protects persons, while the Privileges or Immunities Clause extends only to citizens. SeeU.S. Const. amend. XIV. Lower courts have largely ignored this distinction. SeeRyan C. Williams, Questioning Marks: Plurality Decisions and Precedential Constraint, 69 Stan. L. Rev. 795, 833 (2017) (noting that “lower courts have given little outward sign of even recognizing McDonald as a case calling for analysis under the Marks framework”); see alsoMaxwell L. Stearns, Constitutional Law’s Conflicting Premises, 96 Notre Dame L. Rev. 447, 504 (2020) (discussing the significance of Justice Thomas’s separate concurrence in McDonald). We take the position that though five Justices agreed to the judgment that the Second Amendment applies to the states, whether it does so via the Due Process Clause or, instead, the Privileges or Immunities Clause remains an open question. We also note that the clauses’ distinct language may affect the outcome in certain cases. Consider, for instance, whether a non-citizen may challenge a state law that restricts public carriage of firearms.Show More And recently, the Court agreed to hear a challenge to New York’s concealed-carry restrictions in the case New York State Rifle & Pistol Association v. Corlett (“NYSRPA II”).7 7.N.Y. State Rifle & Pistol Ass’n v. Corlett, 804 F.3d 242 (2d Cir. 2015), cert. granted, (Apr. 26, 2021) (No. 20-843).Show More But for the last decade, the Court has said nothing further about the scope of the individual right. So the task of grappling with basic questions that remain in Heller’s wake, like the Second Amendment’s standard of review, has fallen to the lower courts. In that process, many courts have latched on to the sort of evidence that we just agreed was suspect: Southern gun restrictions enacted from about 1870 to 1920—the South’s race-relations “nadir.”8 8.Rayford W. Logan, The Negro in American Life and Thought: The Nadir, 1877–1901 (1954); see also Alton Hornsby, Jr., ed., A Companion to African American History 312, 381, 391 (2008).Show More Modern courts claim that those laws establish a historical consensus that states enjoy wide latitude to curtail the right to bear arms. And just as often, those courts have invoked such laws without a hint of appreciation that they might be marred by racial taint.

Though hardly unique, the Ninth Circuit’s decision in Young v. Hawaii provides the latest example of this trend.9 9.Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021) (en banc).Show More There, a majority of the en banc Ninth Circuit affirmed Hawaii’s functional ban on bearing arms outside the home. As part of its analysis, the majority presented a historical survey of state gun regulations, focusing in particular on the post-war American South, where such regulations were common. Its survey of Southern cases and statutes, the majority said, revealed that it was then “broadly agreed” that “firearms [ ] could be banned from the public square.”10 10.Id.at 801.Show More Indeed, the majority reasoned, the legislatures of states like Texas, Alabama, Georgia, and Louisiana evidently did not think those gun-control laws inconsistent with the right to bear arms. Since that historical conception apparently tolerated copious restrictions on the right, the plaintiffs had no firm historical basis to challenge Hawaii’s law.

Writing in dissent, Judge O’Scannlain urged caution about drawing too much from the “legislative scene following the Civil War.”11 11.Id.at 839 (O’Scannlain, J., dissenting).Show More He noted that the antebellum South had a long history of explicitly race-based bans on gun ownership, and he suggested that Southern states might have been up to something similar after the war, too. Post-war “Black Codes,” for example, sought to infringe “freedmen’s fundamental constitutional rights.”12 12.Id. at 840.Show More And he noted that the majority offered “no enforcement history” for the later, ostensibly race-neutral statutes that it invoked.13 13.Id. at 844.Show More

For the majority, though, Judge O’Scannlain’s warning was hardly a speedbump in its path to affirming Hawaii’s law. In its 113-page opinion, the majority devoted a solitary footnote to his concern about the racial motivations behind the Southern laws the majority relied upon. It “d[id] not disagree” that the Black Codes were a relevant part of “the post-Civil War history.”14 14.Id.at 822 n.43.Show More But it happily noted that soon after the Black Codes’ advent, the nation adopted the Fourteenth Amendment to facilitate anti-discrimination laws and to bolster freedmen’s rights. Thus, according to the majority, “it is not clear how th[e] history” of racially discriminatory Southern laws—supposedly snuffed out by the Fourteenth Amendment—“informs the issue before us.”15 15.Id.Show More

It is that remarkable statement this Essay seeks to correct. Southern race discrimination via gun-control statutes did not evaporate in 1868. Sadly, it persisted long after and even through facially neutral statutes. By missing that insight, the Young majority and like-minded courts have erred by uncritically invoking gun-control laws from the postbellum South as serious evidence that a broad historical consensus supported limiting gun rights. In response, this Essay employs original primary-source research to establish two key points. First, the desire to limit Black gun ownership often motivated Southern states’ enactment of gun-control laws from around 1870 to 1920. Indeed, white society considered Black gun ownership conducive to chaos and disorder. Second, these racially biased motivations led to disproportionate enforcement of gun-control measures against Black citizens. In other words, these laws do not necessarily show a Southern distaste for the right to bear arms. But they certainly show disdain for exercise of that right by Blacks. So it is ironic—indeed, perverse—that courts should deploy these same tainted laws 150 years later to once again dilute American citizens’ constitutional rights.

The case against courts’ laundering of these racially tainted statutes proceeds in three parts. Part I details the present circuit split on the Second-Amendment standard of review and how various courts of appeals have deployed tainted historical statutes to dilute that standard. Part II presents the historical evidence that these Southern statutes were both racially motivated and unfairly enforced, even when neutral on their face. And Part III shows why continued reliance on such tainted statutes cannot be squared with the Supreme Court’s decision in Ramos. Put simply, when courts evaluate modern restrictions on the right to keep and bear arms, they should reject sullied statutes and rely instead on untainted historical evidence.

I. A Splintered Standard and a Tainted Record

Like its neighbors in the Bill of Rights, the Second Amendment anticipates that citizens may exercise in distinct ways the right that it protects. By the Amendment’s terms, individuals may “keep . . . Arms” for self-defense, but they may also “bear” them.16 16.U.S. Const. amend. II.Show More The Supreme Court’s last words on the subject focused on the former issue—whether states may ban the “keeping” of commonly used arms.17 17.District of Columbia v. Heller, 554 U.S. 570, 581–82 (2008); McDonald v. City of Chicago, Ill., 561 U.S. 742, 780 (2010).Show More Though answering that question in the negative, the Court gave no definitive guidance about the validity of state bans on the bearing of guns via open or concealed carry. Lacking further direction, lower courts have intractably split on whether states may restrict the right to bear arms and on the standard of review that courts must apply to such restrictions.

Some courts have endorsed the view that states may not ban citizens from carrying handguns for self-defense outside the home. The Seventh and D.C. Circuits are notable examples.18 18.Wrenn v. District of Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012).Show More Both shunned reliance on the “tiers of scrutiny” framework familiar to other areas of constitutional law, instead extending Heller to protect the bearing of arms outside the home. In reaching that conclusion, the Seventh Circuit declined “another round of historical analysis” to determine the scope of the “bear” right.19 19.Moore, 702 F.3d at 942.Show More In its view, Heller had already “decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.”20 20.Id.Show More But other circuits have resisted that conclusion. The First, Second, Third, Ninth, and Tenth Circuits have all adopted an “intermediate scrutiny” standard, under which they have upheld laws severely restricting the right to bear arms.21 21.Gould v. Morgan, 907 F.3d 659, 673 (1st Cir. 2018); Drake v. Filko, 724 F.3d 426, 430 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013); Peterson v. Martinez, 707 F.3d 1197, 1208 (10th Cir. 2013); Kachalsky v. Cty. of Westchester, 701 F.3d 81, 96 (2d Cir. 2012).Show More And critically, circuits in this camp—along with legion academic commentators—have all relied upon postbellum Southern gun control to bolster their rejection of that right.22 22.Many academics have relied on racially tainted postbellum Southern gun-control laws to reinforce their anti-gun-rights arguments. SeeEric J. Mogilnicki & Alexander Schultz, The Incomplete Record in New York State Rifle & Pistol Association v. City of New York, 73 SMU L. Rev. F. 1, 4–6 (2020); David T. Hardy, The Rise and Demise of the “Collective Right” Interpretation of the Second Amendment, 59 Clev. St. L. Rev. 315, 339 (2011) (referencing facially neutral Southern gun control laws passed after the Civil War as historical evidence of constitutional limitations on the Second Amendment); Joseph Blocher, Firearm Localism, 123 Yale L. J. 82, 119 n.193, 120 n.195 (2013) (citing postbellum Southern gun-control laws without acknowledging possible tainted motivation for their enactment); see also Mark Anthony Frassetto, The Law and Politics of Firearms Regulation in Reconstruction Texas, 4 Tex. A&M L. Rev. 95, 95 (2016) (fighting back against the “current state of scholarship on Second Amendment history [that] paints post-Civil War firearms regulations as racist efforts by Southern states to prevent blacks from defending themselves against racial violence.”); Robert J. Spitzer, Gun Law History in the United States and Second Amendment Rights, 80 L. & Contemp. Prob. 55, 62–64 nn.34–48 (2017) (listing a host of gun restrictions in different states).Show More

First to address the public-carry question was the Second Circuit in the 2012 case Kachalsky v. County of Westchester.23 23.Kachalsky, 701 F.3d at 81.Show More The dispute involved a New York law that requires citizens to show “proper cause” before obtaining a handgun-carry license—a requirement difficult to meet in practice.24 24.Id.at 84.Show More To analyze that restriction’s validity, the Second Circuit reviewed the “history and tradition of firearm regulation” to select the appropriate level of scrutiny.25 25.Id. at 101.Show More In so doing, the court detailed those historical laws that it thought supported “restrictions on the public carrying of weapons.”26 26.Id.at 90.Show More Among them were several postbellum Southern statutes that, in various ways, restricted gun ownership. Examples the Circuit cited included an 1870 law from Virginia, an 1871 law from Texas, an 1880 law from Kentucky, 1881 laws from Arkansas and North Carolina, and an 1885 law from Florida. That historical survey led the Circuit to conclude that “[i]n the nineteenth century, laws directly regulating concealable weapons for public safety became commonplace and far more expansive in scope.”27 27.Id.at 95.Show More Thus, in its view, “extensive state regulation of handguns has never been considered incompatible with the Second Amendment.” 28 28.Id.at 100.Show More And with that historical gloss, the Circuit settled on intermediate scrutiny to uphold New York’s “proper cause” requirement.29 29.Id.at 96.Show More

Likewise, in the 2013 case Drake v. Filko, the Third Circuit looked back to the South to judge a current law in the North.30 30.Drake v. Filko, 724 F.3d 426, 433 (3d Cir. 2013).Show More The New Jersey law at issue required handgun-license applicants to demonstrate their “‘justifiable need’ to publicly carry a handgun.”31 31.Id.at 429.Show More In response to the appellants’ contention that this requirement violated the Second Amendment, the Third Circuit claimed that “[i]t remains unsettled whether the individual right to bear arms for the purpose of self-defense extends beyond the home.”32 32.Id.at 430.Show More To select the appropriate level of scrutiny, the Third Circuit followed Kachalsky and undertook a review of historical gun regulations. The Circuit cited Kachalsky several times for the proposition that “19th Century” history undermined the notion that self-defense outside the home belongs to “the core of the [Second] Amendment.”33 33.Id.at 436.Show More Thus, after settling on intermediate scrutiny, the Third Circuit upheld New Jersey’s “justifiable need” requirement.34 34.Id.at 440.Show More

Dissenting, Judge Hardiman objected to the majority’s repeated invocation of Kachalsky. In his view, the Southern statutes that Kachalsky marshaled were distinguishable from New Jersey’s “justifiable need” requirement.35 35.Id.at 451 (Hardiman, J., dissenting).Show More For instance, he argued, Southerners considered those historical bans permissible only because the weapons they targeted were not the sort of “arms” thought core to the right.36 36.Id.Show More And “[t]o the extent that th[ose] state laws prohibited the carry of weapons used in war”—in other words, “arms”—“they were struck down.”37 37.Id.Show More So Judge Hardiman thought the historical statutes had “little bearing” on modern laws regulating concealed carry.38 38.Id.Show More But he left his criticism there, mentioning no further concern about possible racial taint.

In their own respective treatments of the issue, the First and Tenth Circuits have also invoked Kachalsky to reject Second-Amendment claims. In the 2013 case Peterson v. Martinez, the Tenth Circuit parried a challenge to a Colorado concealed-weapons law after concluding “that the carrying of concealed firearms is not protected by the Second Amendment[.]”39 39.Peterson v. Martinez, 707 F.3d 1197, 1201 (10th Cir. 2013).Show More Citing Kachalsky, the Circuit noted that “concealed carry bans have a lengthy history” and that “most states banned concealed carry in the nineteenth century.”40 40.Id.at 1211.Show More Thus, it concluded, “the Second Amendment does not confer a right to carry concealed weapons.”41 41.Id.Show More Likewise, the First Circuit relied on Kachalsky to conclude “that there is no national consensus, rooted in history, concerning the right to public carriage of firearms.”42 42.Gould v. Morgan, 907 F.3d 659, 669 (1st Cir. 2018).Show More Rather, the restrictions Kachalsky detailed led the Circuit to suggest that history “conflict[ed]” about the scope of the right to bear arms.43 43.Id.Show More And given that supposed conflict, the court upheld the targeted restriction under intermediate scrutiny.44 44.Id. at 676.Show More

While most Circuits have been content to recycle Kachalsky, the Ninth Circuit offered a broader defense of why history undercuts the right to publicly bear arms. In its aforementioned Young decision, the en banc Ninth Circuit considered whether Hawaii’s functional ban on public carry violates the Second Amendment.45 45.Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021) (en banc).Show More Judge Bybee, writing for the majority, held that it does not. Much of the historical record he dissected—for instance, the Statute of Northampton, ancient English treatises, and early colonial restrictions—falls well outside this Essay’s scope.46 46.Id.at 788–805.Show More But after analyzing those sources, the majority, like its sister-circuits, discussed several postbellum Southern statutes. It noted that Tennessee enacted a law in 1870 banning “publicly or privately carry[ing] a dirk, swordcane, Spanish stiletto, belt or pocket pistol[,] or revolver.”47 47.Id.at 806.Show More Three years later, Texas restricted “the carrying of ‘any pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife.”48 48.Id. at 800.Show More The Louisiana Constitution of 1879, likewise, “provided that the right to keep and bear arms did ‘not prevent the passage of laws to punish those who carr[ied] weapons concealed.’”49 49.Id. at 817.Show More And Alabama, for its part, not only “prohibited persons from carrying a ‘pistol concealed,’ but [ ] also made it ‘unlawful for any person to carry a pistol about his person on premises not his own or under his control.’”50 50.Id.at 811.Show More

The majority then offered “several observations” about these statutes.51 51.Id.at 801.Show More First, it said, this historical survey revealed that “states broadly agreed that small, concealable weapons, including firearms, could be banned from the public square.”52 52.Id.Show More And “[s]econd, although many of the states had constitutional provisions that guaranteed some kind of right to keep and bear arms, state legislatures evidently did not believe that the restrictions [ ] discussed here were inconsistent with their state constitutions.”53 53.Id.at 801–02.Show More All told, then, the relevant history supposedly undercut any “general right to carry arms into the public square for self-defense.”54 54.Id.at 813.Show More

Judge O’Scannlain’s dissent, as we mentioned, broached several important criticisms of the majority’s reasoning. First, it noted the lack of any “record of enforcement” for the statutes at issue.55 55.Id.at 847 (O’Scannlain, J., dissenting).Show More Merely symbolic gun laws that state governments never enforced presumably tell us little about the polity’s true thoughts on the right to bear arms. Next, Judge O’Scannlain observed that Southern states had long sought to regulate the possession of weapons by Blacks. In support of that point, he noted several sources from the 1860s that decried Southern attempts to strip freedmen of their right to keep and bear arms—a right those sources described as fundamental.56 56.Id.at 839–41, 847.Show More

The majority swept aside those points, however, with almost-blithe facility. It noted that soon after stories of the Black Codes emanated from the South, the nation ratified the Fourteenth Amendment.57 57.Id.at 822 n.43.Show More Its Privileges or Immunities and Equal Protection Clauses “guaranteed that all citizens would enjoy the same rights as ‘white citizens,’ including Second Amendment rights.”58 58.Id.Show More But, said the majority,

those provisions do not tell us anything about the substance of the Second Amendment, any more than an equal right to enter into contracts or inherit property tells us whether the state may alter the Statute of Frauds or the Rule Against Perpetuities, so long as it does so for all citizens.59 59.Id.Show More

And with that, in an opinion that purported to exhaustively survey the historical evidence, the majority dismissed concerns about how race and discrimination might have informed its analysis.

II. “Every Negro in the City a Walking Arsenal”: The Racial Motivations Underlying Postbellum Southern Gun Control

For about the first two-hundred years of American history, the colonies and early states enacted various racially explicit gun bans. By frustrating slaves’ ability to rebel, these laws preserved white supremacy and the slave-based American economy. As early as 1640, for example, Virginia prohibited Blacks, slave and free, from carrying weapons.60 60.T. Markus Funk, Comment, Gun Control and Economic Discrimination: The Melting-Point Case-in-Point, 85 J. Crim. L. & Criminology 764, 796 (1995) (“In 1640, Virginia set up the first recorded restrictive legislation which prevented blacks from owning a firearm”).Show More And it enacted a more extensive “act for preventing Negroes Insurrections” in 1680.61 61.Act X: An Act for Preventing Negroes Insurrections (June 1680), reprinted in 2 The Statutes at Large; Being a Collection of all the laws of Virginia, From the First Session of The Legislature in The Year 1619, 481 (William Waller Hening ed., n.d.), https://encyclopediavirginia.org/entries/an-act-for-preventing-negroes-insurrections-1680/. [https://perma.cc/X98X-PEP3]. Many of the historical sources we have quoted employ non-standard English. Rather than flagging each idiosyncrasy with a [sic] notation, we have chosen instead to present the source-language as it originally appeared.Show More The law forbade “any negroe or other slave to carry or arme himselfe with any club, staffe, gunn, sword or any other weapon of defence or offence.”62 62.Id.Show More A slave could possess such arms only with “a certificate from his master, mistris or overseer” for “perticuler and necessary occasions.”63 63.Id.Show More Without a permit, a slave in possession of arms would be “sent to the next constable, who [was] hereby enjoyned and required to give the said negroe twenty lashes on his bare back.”64 64.Id.Show More Those lashes, the law specified, were to be “well layd on.”65 65.Id.Show More

Similar laws pervaded other jurisdictions. In 1740, for instance, South Carolina enacted a statute making it illegal “for any slave, unless in the presence of some white person, to carry or make use of fire-arms.”66 66.1741-32 S.C. Acts 168, § 23.Show More A slave could bear arms only with a “license in writing from his master, mistress or overseer.”67 67.Id.Show More Whites who discovered slaves in possession of unlicensed weapons could seize the arms on the spot. If the slave resisted and seriously injured the white person, the law subjected the slave to a mandatory penalty of death.68 68.Id. §§ 23–24.Show More In the same vein, Florida, Georgia, Texas, Louisiana, North Carolina, and Mississippi passed their own racially explicit gun bans from around 1800 to 1860.69 69.Black Code, ch. 33, sec. 19, Laws of La. 150, 160 (1806); Act of April 8, 1811, ch. 14, sec. 3, Laws of La. 50, 52–54 (1811); An Act to Govern Patrols, secs. 8–9, Acts of Fla. 52, 55 (1825); Act of Jan. 28, 1831, Fla. Laws 28, 30 (1831); Act of Dec. 23, 1833, sec. 7, 1833 Ga. Laws 226, 228 (1833); An Act Concerning Slaves, ch. 58, sec. 6, 1841 Laws of Tex. 171, 172 (1841); State v. Newsom, 27 N.C. 250 (1844) (upholding North Carolina’s race-based ban); Act of Jan 1, 1845, ch. 87, 1845 Acts of N.C. 124; Act of Mar. 15, 1852, ch 206, sec. 1, 1852 Laws of Miss. 328; Act of Dec. 19, 1860, no. 64, Sec. 1, 1860 Acts of Ga. 56; see alsoStephen P. Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bills of Rights, 41 Baylor L. Rev. 629, 653 (1989) (“On November 6, 1866, the Texas legislature passed its first gun control measure, which was also the closest Texas came to adopting a black code provision to disarm freedmen.”).Show More Louisiana forbade slaves from possessing weapons, while Florida authorized whites to enter Black persons’ homes to search for and seize any firearms.70 70.Black Code, ch. 33, sec. 19, Laws of La. 150, 160 (1806); Act of Dec. 17, 1861, ch. 1291, sec. 11, 1861 Fla. Laws 38, 40.Show More Mississippi, too, heavily restricted slaves’ and free Blacks’ possession of arms. As late as 1865, it barred any “freedman, free negro or mulatto” from possessing “fire-arms of any kind” without a license from “the board of police of his or her county.”71 71.Certain Offenses of Freedmen, 1865 Miss. Laws p. 165, §1, reprinted in 1 Documentary History of Reconstruction 289 (Walter L. Fleming ed. 1950).Show More

Soon after, of course, Mississippi and the broader South lost the American Civil War. One consequence was the panoply of new laws the United States imposed upon that region that aimed to secure the fundamental rights of free Blacks. Those included several Civil Rights and Enforcement Acts, along with the Fourteenth Amendment. The latter’s ratification sought to ensure that freedmen might enjoy “the privileges or immunities of citizens of the United States,” along with “the equal protection of the laws.”72 72.U.S. Const. amend. XIV. Show More In the Young Court’s view, apparently, the advent of these guarantees heralded the end of invidious discrimination via Southern gun-control restrictions.73 73.Young v. Hawaii, 992 F.3d 765, 822 n.43 (9th Cir. 2021) (en banc).Show More

But as this Essay shows, that was unfortunately not the case. Rather, Judge O’Scannlain’s dissenting appraisal was nearer the mark in three respects. First, to the extent that Southern states enacted new gun bans after the Civil War, race appears to have often motivated their decision to do so.74 74.Robert J. Cottrol & Raymond T. Diamond, “Never Intended to be Applied to the White Population”: Firearms Regulation and Racial Disparity—The Redeemed South’s Legacy to a National Jurisprudence?, 70 Chicago-Kent L. Rev. 1307, 1318 (1995) (“Free blacks were subject to a variety of measures meant to limit black access to firearms through licensure or to eliminate such access through outright prohibitions on firearms ownership.”).Show More Second, Southern states enforced these laws against their white populations only loosely. Third, to the extent that Southern states did enforce such laws, they enforced them disproportionately against their Black citizenry.75 75.F. Smith Fussner, That Every Man Be Armed, the Evolution of a Constitutional Right, 3 Const. Comment. 582, 585 (1986) (reviewing Stephen P. Halbrook, That Every Man Be Armed (1984)) (“After the Civil War the states of the old Confederacy tried to use pretexts of various kinds to keep blacks from acquiring and using arms.”); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev. 1359, 1415–16 (1998) (noting that “gun control in the nineteenth century was almost exclusively a Southern phenomenon. In the post-Civil War period, the Southern gun laws were clearly aimed at controlling the Freedmen; although written in racially neutral terms, the laws were meant for, and applied almost exclusively to, blacks.”).Show More We examine these points in turn.

A. How Race Informed the South’s Perceived Need for Gun Control

Across both time and space in the Reconstruction and Jim Crow South, white society reflected antipathy for the newfound phenomenon of Black gun ownership. Southern whites understood the relationship between guns and power. Precisely because the keeping of arms undergirds security and autonomy,76 76.Noted constitutional commentator St. George Tucker described the Second Amendment as “the true palladium of liberty” and “[t]he right of self defense [a]s the first law of nature.” 1 St. George Tucker, Blackstone’s Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia 300 (1803). Frederick Douglass likewise famously remarked “that the liberties of the American people were dependent upon the Ballot-box, the Jury-box, and the Cartridge-box[.]” The Life and Times of Frederick Douglass: From 1817–1882, 333 (John Lobb ed., 1882).Show More the antebellum South had denied that right to its Black population. So when, for instance, Black militias formed after the war’s end to protect voting freedmen and to repel lynch mobs, whites lamented Blacks’ nascent capacity for self-defense. That capacity engendered “[t]he white man’s fundamental enmity,” in other words, because it impugned his “position of authority.”77 77.Otis A. Singletary, The Negro Militia Movement During Radical Reconstruction, LSU Historical Dissertations and Theses, at vii (1954).Show More

In response, whites crafted narratives that reframed Black gun ownership not as a means of legitimate self-defense, but as a source of disorder and chaos. Already by 1866, a Norfolk periodical lamented “a mania which seems to exist among a portion of the negro population for carrying concealed weapons.”78 78.Virginia News, Alexandria Gazette and Virginia Advertiser, Dec. 6, 1866, at 1.Show More Likewise, a writer in Memphis, Tennessee complained in 1867 that “[n]early all the negroes in th[is] city carry concealed weapons.”79 79.Locals in Brief, Public Ledger, July 20, 1867, at 1.Show More “As a natural consequence,” the author wrote, “colored shooting affrays are becoming very frequent.”80 80.Id.Show More In 1871 South Carolina, Black gun ownership was said to have “brought the negroes into troubles, for without [arms], they would not have arrayed themselves in hostility to the white people.”81 81.The Fight at Carmel Hill, The Courier, Mar. 17, 1871, at 1.Show More And later writers in both South Carolina and Tennessee explicitly connected Black gun ownership to election fraud and voter intimidation. In 1879, for instance, a Democratic paper in South Carolina rued that the state’s Republican governor had, “in violation of every right of a free citizen, [disarmed] the whites . . . while the negro militia, in the midst of a heated political contest, [was] not only allowed to keep their rifles and muskets, but encouraged to use[ ] them, to menace the whites, and overawe and intimidate colored voters.”82 82.J.H. Evins, Unexampled Forbearance of the Whites, The Weekly Union Times, Apr. 4, 1879, at 1.Show More This show of force supposedly corrupted “the free choice of the voter,” thus rigging the system in favor of Republicans.83 83.Id.Show More In Mississippi too, alleged Republican encouragement for “negroes to carry pistols to the polls” had led to an “inexcusably brutal outrage” in 1881: when a white voter tried to cane a Black man at a polling place over a supposed insult, another Black man pulled a gun, shooting and killing the white assailant.84 84.Murder at Marion, The Memphis Daily Appeal, Nov. 11, 1881, at 1.Show More

These narratives on disorder and chaos persisted over time. In 1882, Kentucky’s Daily Evening Bulletin opined that “[t]his thing of negroes carrying concealed deadly weapons is a growing evil that should receive the strictest enforcement of the law.”85 85.The State of Lewis at Large, Daily Evening Bulletin, Nov. 22, 1882, at 1.Show More An 1883 column from Jacksonville, Florida likewise warned that “every negro in the city” had become “a walking arsenal.”86 86.Crimes in Jacksonville, The Savanah Morning News, Sept. 5, 1883, at 1.Show More Jacksonville police reported that “a large proportion of the negroes in this city are provided with a dirk knife, razor[,] or pistol”—a trend the column suggested should merit severe punishment.87 87.Id.Show More In Georgia too, the Lyons Morning News argued in 1893 for a new concealed-weapons law, since “[a]lmost every negro that one meets is armed.”88 88.The Concealed Weapon Evil, The Morning News, Sept. 8, 1893, at 6.Show More “Some of them,” according to the editor, even “carr[ied] two pistols and a Winchester rifle”—a behavior that “cursed” the population and merited “strictly enforced” legislative countermeasures.89 89.Id.Show More

One incident in North Carolina that drew on these narratives of chaos and disorder deserves special examination. Around the fall of 1898, white-supremacist Democrats, led in part by future North Carolina congressman John D. Bellamy, organized white resistance to the city of Wilmington’s biracial government. Bellamy and other prominent figures conspired to foment anger among white citizens about this so-called “Negro Rule” before the congressional elections of 1898.90 90.LeRae Umfleet, et al., 1898 Wilmington Race Riot Report, North Carolina Dep’t of Cultural Resources 59–60, 76, 78, 83–84, 125, 371 (May 31, 2006).Show More After several increasingly violent attacks on Wilmington’s Black citizens, Bellamy’s associate Alfred Waddell assembled a posse of about 2,000 whites.91 91.1898 Wilmington Race Riot Report supra note 90, at 129.Show More After equipping itself at Wilmington’s armory, the posse roamed the streets, killing the Black persons they could find and destroying Wilmington’s Black-owned businesses.92 92.Id. at 121, 133.Show More Perhaps 60 Black citizens perished, while thousands of others fled and took shelter in nearby swamps.93 93.Id. at 1.Show More

Yet when Bellamy was later sued for his role in the massacre, he reframed the event as a “race riot” that ensued only after “a negro mob” had armed itself in “utter disregard . . . for law and order.”94 94.Dockery v. Bellamy: The Taking of Depositions Resumed, The Semi-Weekly Messenger, Apr. 14, 1899, at 3.Show More Bellamy argued that this was to be expected: “[N]egroes constantly carry concealed weapons,” he testified, “and . . . the razor, the pistol, the slingshot[,] and the brass knuckle seem to be their inseparable accompaniments as a class.”95 95.Id.Show More “[A]lthough there are some very respectable law-abiding and property acquiring citizens of that race,” he conceded, “it is a very small portion of them.”96 96.Id.Show More So, in Bellamy’s view, the posse’s brutality did not stem from the violent white-supremacist movement that he had cultivated. The true culprit, he said, was Black citizens’ carriage of arms. Bellamy eventually prevailed in the litigation, allowing him to take his seat in Congress.97 97.1898 Wilmington Race Riot Report supra note 90, at 200–01.Show More But while his actions were especially horrific, his rhetoric was familiar—that Black citizens’ possession of arms had instigated violence and disorder.

These themes continued to reverberate throughout the South during and after the turn of the twentieth century. In 1899, for instance, Cheneyville, Louisiana passed an ordinance that aimed to restrain the “custom among a certain class of worthless negroes to carry concealed weapons upon their persons[.]”98 98.To Restrain Worthless Negroes, New York Tribune, Aug. 14, 1900, at 1.Show More Similar rhetoric surfaced soon after in Georgia. In a 1901 lecture delivered at a Valdosta prison, Judge Estes of the Valdosta superior court opined that it was hard to believe the “worthless[ ],” “pistol toting negroes of the present generation are the descendants of the . . . good old negroes of the former days.”99 99.The Good Old Negroes: Judge Estes’ Lecture to Prisoners at Valdosta, The Morning News, Nov. 24, 1901, at 9.Show More A 1907 Mississippi paper, likewise, bemoaned “negro . . . pistol toting” and suggested “that there is needed extreme legislation for suppression of pistol toting; especially for protection of lives of the peace officers who are called on almost daily to arrest turbulent and recklessly murderous negroes.”100 100.The Pistol Toting Negro in Evidence, The Greenville Times, Dec. 28, 1907, at 1.Show More

Other contemporary sources were just as frank about the racial bias that had motivated Southern gun-control measures. While debating a 1901 South Carolina proposal, State Senator Stanwix Mayfield introduced an amendment requiring applicants for a concealed-carry permit to pay the princely sum of $50.101 101.Synopsis of the Daily Proceedings of the House and Senate, The Yorkville Enquirer, Feb. 16, 1901, at 1.Show More “If a man thinks he ought to go armed let him pay a license,” Mayfield argued.102 102.Id.Show More Moreover, “[n]egroes will not take out a license and one-half of the population will thus be eliminated.”103 103.Id.Show More And that was the problematic half, in Mayfield’s view, since “[t]here is little trouble” arising from concealed carry “among white people.”104 104.Id.Show More In a similar vein, Charles R. Tarter of Brevard County, Florida suggested in 1907 to Virginia’s Clinch Valley News some lessons that Virginia might take from Florida’s treatment of “the race problem.”105 105.Charles R. Tarter, The Race Problem in Florida, Clinch Valley News, June 28, 1907, at 2.Show More In Florida, Tarter opined, “[w]e have no race problem [ ] in Brevard [C]ounty.”106 106.Id.Show More Rather, “[t]he ‘n——r’ is held in humble submission here.”107 107.Id. (racial slur censored).Show More One aspect of that “submission” was Brevard County’s law requiring that whoever wished to carry a long gun have a bond guaranteed by “two good men.”108 108.Id.Show More As Tarter explained, “[i]t’s purpose was to keep fire arms out of the nigroes hands[,] and it did all it was intended for. No nigro can get a bond accepted,” and “few ever try.”109 109.Id.Show More In Tarter’s view, such a restriction bolstered law and order. “There has never been an assault, or an insult offered a white woman by a n——r in this county,” he claimed, and “in fact, there’s practically but few cases of criminal assault ever in the state.”110 110.Id. (racial slur censored).Show More

Sources in Alabama, too, connected Black gun ownership to themes of disorder and the status of white supremacy. In 1907, Alabama State Senator Evans Hinson warned that “black belt negroes are better armed than whites.”111 111.Evans Hinson, Black Belt Negroes are Better Armed Than Whites, The Age-Herald, May 1, 1907, at 9.Show More Thus, he thought, Alabama needed a “new law regarding carrying weapons.”112 112.Id.Show More Though laws on the books regulated possession of pistols, he thought the law should also cover long guns. Otherwise, he worried that “negroes would have on hand for immediate use incomparably more improved firearms than would the whites.”113 113.Id.Show More Thus, he feared that whites might be outgunned in the event of a future “race riot.”114 114.Id.Show More Alabama newspaperman Edward Ware Barrett, owner of Birmingham’s Age-Herald,115 115.George M. Cruikshank, 2 A History of Birmingham and Its Environs: A Narrative Account of Their Historical Progress, Their People, and Their Principal Interests, 180 (1920).Show More likewise suggested that Black citizens’ gun ownership placed respectable whites under siege. “A man with a home and family,” Barrett remarked, “feels that he cannot go out of town without employing an armed squadron to protect his home against pistol toting negroes[.]”116 116.Edward Ware Barrett, Ned Brace Talks About Things At Home and Makes A Few Suggestions, The Age-Herald, Jan. 7, 1912, at 28.Show More Otherwise, he feared, they might “go out to shoot up his servants and endanger[ ] the lives of his wife and children.”117 117.Id.Show More

So what has this historical survey told us? A couple of things, we think. First, it shows that racist attitudes about Black gun ownership pervaded the post-war American South. White society, or at least those portions of it captured in the cited periodicals, thought Black gun ownership a particularly dangerous reality; one conducive to disorder and corrosive to the Southern social fabric. It was a problem, the sources tell us, in need of novel restrictions and “extreme legislation.”118 118.The Pistol Toting Negro in Evidence, The Greenville Times, Dec. 28, 1907, at 1.Show More Second, and concomitantly, it reveals that courts today should hesitate to invoke Southern gun restrictions as evidence about Southern society’s views on the right to bear arms generally. To the contrary, this evidence reflects Southern society’s specific desire to counter a particular “problem”: its disdain for Black citizens’ keeping and bearing of arms. Parts II.B and II.C, in turn, present the evidence for that observation’s logical corollaries: that Southern states did not enforce these restrictions rigorously against whites, but enforced them with alacrity against Blacks.

B. Southern States’ Under-Enforcement of Gun Control Laws
Against White Society

As noted above, Judge O’Scannlain also criticized the Young majority’s statutory survey for omitting a serious discussion of the laws’ “enforcement history.”119 119.Young v. Hawaii, 992 F.3d 765, 844 (9th Cir. 2021) (en banc) (O’Scannlain, J., dissenting).Show More The majority conceded that the question of enforcement was “a fair one.”120 120.Id.at 823.Show More Unenforced statutes may eventually fall “into desuetude,” the majority noted, rendering such legislative proscriptions “merely symbolic.”121 121.Id.Show More But after admitting that enforcement questions were “beyond the materials that [it] ha[d] seen,” the majority incongruously argued that the Southern statutes it cited were “not merely symbolic.”122 122.Id. (emphasis added).Show More Instead, it suggested that the statutes’ commonality across the South was somehow self-proving evidence of their enforcement. And the majority noted that it had assembled a few Southern cases involving weapons prosecutions, which it claimed “proves that the statutes were enforced.”123 123.Id. (first emphasis added).Show More

The majority’s leap from confessing that it had no evidence of enforcement history to its conclusion that it had “prove[n]” the statutes’ enforcement was sophistical.124 124.Id.Show More A few instances of enforcement in reported cases do not show that such laws were enforced broadly or that Southerners considered them an enforcement priority. Indeed, one scholar has labeled reasoning like the majority’s the “lonely fact” fallacy.125 125.Ilan Wurmin, Law Historians’ Fallacies, 91 N.D. L. Rev. 161, 203 (2015). Show More Having identified a few discrete historical examples, the majority then assumed without support that those data points represented general trends.

But they did not, at least according to the evidence we have uncovered. To the contrary, contemporary Southern sources consistently noted two important points. First, the carrying of concealed weapons throughout the postwar South was extremely common. And second, Southern states rarely enforced their laws against that practice. (Save for those occasions when the unfortunate defendant belonged to a racial minority; a trend we discuss in Part II.C.) So Judge O’Scannlain’s dissent was nearer the mark yet again. For the laws the majority cited often were “merely symbolic.”126 126.Young, 992 F.3d at 823.Show More

Already in 1880, for example, a Mississippi periodical observed that the state’s concealed-weapons law “[wa]s not enforced anywhere in the State.”127 127.Concealed Weapons, St. Landry Democrat, Feb. 7, 1880, at 4.Show More And it pointed out the likelihood that “the concealed weapon law will never be strictly enforced in this or any other State, unless the law should go further and give officers the right to search every man to ascertain whether he had concealed weapons on his person or not.”128 128.Id.Show More Such a law, it said, would be both “unconstitutional,” given its imposition on liberty, and “absurd,” given the resources required to enforce it.129 129.Id.Show More Likewise, Louisiana’s Meridional noted in 1878 that the state had “an act prohibiting persons from carrying concealed weapons,” but that it was “not enforced[.]”130 130.The Lafayette Advertiser, Mar. 30, 1878, at 2.Show More The author suggested that some enforcement might be wise, since “one cannot travel fifty yards from the parish seat” without meeting persons armed with concealed pistols.131 131.Id.Show More South Carolina’s Weekly Union Times sounded similar themes in 1880. It noted that while “[t]he law against carrying concealed weapons may be enforced in the towns and cities where special ordinances are passed . . . the State laws on this subject are not worth the paper they are written on, from the fact that they will never be enforced.”132 132.Sins Which the Law Cannot Reach, The Weekly Union Times, Nov. 12, 1880, at 1.Show More Predictably, “nobody [was ever] tried for the offence.”133 133.Id. Likewise, Richmond, Virginia’s Daily State Journal reported a concealed-weapons prosecution in 1872. But it noted that this was “the first case of the kind for some time.” Carrying Concealed Deadly Weapons, The Daily State Journal, Jan. 10, 1872, at 1.Show More

These themes persisted throughout the South for decades. Mississippi’s Magnolia Gazette noted in 1883 that a new weapons law might be desirable. But the column’s author doubted that “it can or will be done,” given the practical difficulties of enforcing such a statute.134 134.An Alarming State of Affairs, Magnolia Gazette, Aug. 30, 1883, at 1.Show More “The law as it exists,” the author noted, “is almost inoperative.”135 135.Id.Show More Five years later, South Carolina’s Laurens Advertiser observed that “the law in regard to carrying concealed weapons[ ] [wa]s never enforced,” given that citizens lacked any “sense of duty” to obey it.136 136.Dials, The Laurens Advertiser, May 2, 1888, at 3.Show More And in Kentucky, similar laws’ enforcement fared no better. In 1891, for instance, Kentucky Governor John Y. Brown simply stopped enforcing the state’s concealed-weapons law for several years.137 137.W.P. Walton, Semi-Weekly Interior Journal, Nov. 20, 1891, at 2.Show More

Again, it must be said, the rarity of prosecutions did not stem from the rarity of concealed carry. To the contrary, a Missouri periodical noted in 1897 that “[t]housands of the so called ‘best men’ of every community in many of the southern states carry daily the faithful revolver in the pistol pocket.”138 138.Concealed Weapons, The Age Herald, Oct. 10, 1897, at 4.Show More It was despite that fact that only “at rare intervals . . . men are prosecuted for carrying concealed weapons.”139 139.Id.Show More Indeed, prosecutions were rare not because carrying was rare, but because there was so “much looseness in the enforcement of the statutes[.]”140 140.Id.Show More

Turn-of-the-century South Carolina was no more enthusiastic about enforcing its own concealed-weapons law. The Union Times wondered in 1900 why the “law against carrying concealed weapons is not more rigidly enforced.”141 141.Carrying Concealed Weapons, The Union Times, Oct. 26, 1900, at 1.Show More It noted that there were “few convictions for violations” and that no one seemed willing to report fellow citizens for concealed carrying.142 142.Id.Show More Perhaps members of South Carolina’s legislature took heed. For a year later, The Yorkville Enquirer reported the passage of a new concealed-weapons law. But it predicted that the new law, like its predecessors, would have little practical consequence. “Other concealed weapon laws,” the paper noted, “have been indifferently enforced.”143 143.The Yorkville Enquirer, Feb. 16, 1901, at 1.Show More Thus, “there is reason to fear this one will not fare any better.”144 144.Id.Show More That prediction proved accurate. As South Carolina’s Anderson Intelligencer noted in 1905, while the “statute books” had a new law “against the carrying of concealed weapons . . . the enforcement of it is a regular farce.”145 145.Editorial Bull’s Eyes, The Yorkville Enquirer, Oct. 10, 1905, at 1.Show More “Occasionally some poor, unfortunate fellow” was fined,146 146.Id.Contemporary court records from South Carolina also seem to confirm that the state’s concealed-weapons law was not an enforcement priority. The Watchman and Southron reported in 1903 that one South Carolina police court processed 448 arrests throughout 1902. Doings of the Police Force for 1902, The Watchman and Southron, Feb. 25, 1903, at 1. But only a paltry three of those were for carrying concealed weapons. Id.Show More but the law did little overall to deter Southerners’ prolific carriage of arms.

Enforcement also lagged in Arkansas and Alabama. Birmingham’s Age-Herald reported in 1912 that “there seems to be practically no enforcement” of “[t]he law against carrying concealed deadly weapons.”147 147.The Grand Jury’s Report, The Age-Herald, Oct. 28, 1912, at 1.Show More And Arkansas’s Daily Picayune noted in 1921 that “[t]he law against carrying concealed weapons is not enforced, as witness the courts.”148 148.A Celebration, The Daily Picayune, Jan. 8, 1921, at 1.Show More Yet, that journal remarked, there was apparently “no inclination for repeal.”149 149.Id.Show More So the law was indeed symbolic, rather than a robust proscription.150 150.Id.Show More

Indeed, this Part has shown that much the same could be said for concealed-weapons laws across the South. As the cited sources reflect, contemporary Southerners considered the laws “inoperative” and their enforcement impractical.151 151.An Alarming State of Affairs, Magnolia Gazette, Aug. 30, 1883, at 1.Show More “[I]ndifferent[ ]” enforcement had rendered the statutes “not worth the paper they [were] written on” and “a regular farce.”152 152.Sins Which the Law Cannot Reach, The Weekly Union Times, Nov. 12, 1880, at 1; The Yorkville Enquirer, Feb. 16, 1901, at 1; Editorial Bull’s Eyes, Yorkville Enquirer, Oct. 10, 1905, at 1.Show More As a result, convictions came only at “rare intervals.”153 153.Concealed Weapons, The Age-Herald, Oct. 10, 1897, at 4.Show More And those convicted appear to have been the “unfortunate fellow[s]” who simply happened to stand out from the rest of their gun-toting countrymen.154 154.Editorial Bull’s Eyes, The Yorkville Enquirer, Oct. 10, 1905, at 1.Show More

Given these sources’ depiction of the South’s spotty gun-control regime, one might wonder whether those laws were ever seriously enforced against any segment of Southern society. The answer to that question, it turns out, is “yes.” For contemporary evidence also suggests that despite the laws’ “indifferent[ ]” enforcement as to the South’s alleged best men—its whites—the same laws quite often ensnared its Black citizens.155 155.The Yorkville Enquirer, Feb. 16, 1901, at 1.Show More Of course, we uncovered no evidence that Blacks carried guns at a higher rate than whites in this period. Instead, sources remarked that the pistol was the Southern gentleman’s constant companion. But as Part II.C now reveals, Blacks almost certainly were punished at a much higher rate for concealed carry.

C. How Southern States Disproportionately Enforced Their Gun-Control Laws Against Racial Minorities

We now turn to the third way that the historical sources we uncovered vindicate Judge O’Scannlain. Recall how he admonished the majority to temper its enthusiasm for “the legislative scene following the Civil War” given his suspicion that such laws, though facially neutral, “sought to suppress the ability of freedmen to own guns.”156 156.Young v. Hawaii, 992 F.3d 765, 839, 847 (9th Cir. 2021) (en banc) (O’Scannlain, J., dissenting).Show More His intuition was correct, but his critique—much like the majority opinion—lacked a key piece of evidence: the laws’ enforcement history. Without it, the majority brushed aside Judge O’Scannlain’s concerns and appointed the statutes it cited as serious evidence of Southerners’ appetite for gun control.

That was a mistake. As this Part reveals, contemporaneous evidence suggests that the Reconstruction and Jim Crow South enforced these laws “almost exclusively” against Blacks.157 157.Elections a Farce: The Republicans of South Carolina Issue a Strong Address to Congress, The Indianapolis Journal, Jan. 18, 1889, at 7.Show More That is perhaps unsurprising, given our background knowledge about that period in Southern history and the evidence of the laws’ racial motivations detailed in Part II.A. At the same time, though, it guts the Young majority’s view that racially disparate enforcement ceased after the Fourteenth Amendment’s ratification. Precisely because these laws were not equally applied to all citizens, singling out Black citizens instead, they may tell us something about a tool the postwar South used to preserve white supremacy. But they tell us almost nothing about a broad Southern consensus in favor of diluting the right to keep and bear arms.

A year after the Civil War’s end, for instance, the city of Norfolk, Virginia deployed a recently passed concealed-weapons law to disarm free Blacks. Indeed, “[u]nder a recent law of the city of Norfolk, . . . the police arrested a large number of negroes for carrying concealed weapons.”158 158.Miscellaneous News Items, Bedford Inquirer, Dec. 21, 1866, at 1.Show More The seizure was especially significant, since it was alleged “that a negro rising was planned for Christmas week[,] in which the authorities were to be overturned.”159 159.Id.Show More Later in 1904, Virginia authorities similarly suggested that they had defused a “race riot” with concealed-weapons arrests.160 160.Another Race Riot is Feared in Norfolk, The Evening Journal, Oct. 26, 1904, at 1.Show More Fearing an “outbreak by the blacks” after a lynching, authorities arrested “[m]any negroes” for weapons possession.161 161.Id.Show More These “culprits” were then “severely dealt with . . . under the Virginia law covering concealed weapons.”162 162.Id.Show More So, much like Virginia’s 1680 “negroes insurrections” law sought to suppress slave revolts with a racially explicit weapons ban, Virginia’s later, facially neutral laws were apparently thought to serve a similar purpose.163 163.Id.; see supranotes 61–65 and accompanying text.Show More

South Carolina, too, enforced its concealed-weapons law along racial lines. South Carolina Republican Ellery M. Brayton complained to the federal Congress in 1887 about how disparate enforcement infected the statute. “[T]he law against carrying concealed weapons,” he noted, “is enforced almost exclusively against negroes.”164 164.Elections a Farce: The Republicans of South Carolina Issue a Strong Address to Congress, The Indianapolis Journal, Jan. 18, 1889, at 7. Contemporary arrest records from South Carolina reflect the racial enforcement disparity. In 1905, for instance, one South Carolina court handled thirty-four concealed weapons arrests; thirty offenders were Black and just four were white. The Sinners’ Record: Annual Summary of Arrests—Charges, Convictions and Acquittals in Recorder’s Court, The Watchman and Southron, Feb. 1, 1905, at 1.Show More And even when the law was enforced against whites, their sentences vis-à-vis Black offenders were radically disparate. An 1883 periodical noted that two South Carolina offenders—one Black, one white—were both tried during the same term of court for the offense of carrying concealed weapons.165 165.Sentences of Court, The Anderson Intelligencer, Nov. 15, 1883 (quoting the Abbeville Press and Banner).Show More The white offender received the opportunity to pay a fine. But the Black offender got six months’ time at the penitentiary.166 166.Id.Show More How, the periodical wondered, could one possibly distinguish those cases?167 167.Id. After noting this race-based sentencing disparity, the original column in the Abbeville Press and Banner lamented, “Does not such discriminations [sic] against the brother in black offend our sense of justice?” Id. Yet when the same column was reprinted in The Anderson Intelligencer, the Intelligencer defended judges’ discretion to impose disparate sentences.Show More

The situation in South Carolina apparently did not improve with time. In 1891, a South Carolina judge recommended that “the law against carrying concealed weapons . . . be more rigidly enforced.”168 168.“The Easter Egg,” The Newberry Herald and News, Mar. 19, 1891, at 1.Show More The paper agreed: “[a]s it is the law is a dead letter, and only an occasional negro is brought to trial for the offense.”169 169.Id.Show More Another source, this time in 1893, also pointed out South Carolina’s enforcement disparity. Twelve Black inmates, it noted, languished “in the South Carolina penitentiary for the simple offense of carrying concealed weapons, a thing that about every white man in the state does.”170 170.Outrages on the Negro: Rev. Dr. Seaton Says that They Must be Stopped, What Prison Records Show, The Evening Star, Aug. 14, 1893, at 7.Show More But while whites did so freely, Black offenders faced hard labor in the convict-lease system.171 171.Id.Show More

Famed journalist and early civil-rights activist Ida B. Wells similarly criticized the South for its obvious enforcement hypocrisy regarding concealed weapons. In a 1900 address, she noted that “[t]here is a law in the south against carrying concealed weapons.”172 172.Ida B. Wells, Negro Lynching: Deprecated by Speakers and a Remedy Suggested, Topeka State Journal, Feb. 17, 1900, at 5. The Anti-Lynching Crusaders, Republican and Herald, Feb. 19, 1900, at 2.Show More “White men carry them with impunity,” she pointed out.173 173.Id.Show More “[B]ut if the negro is caught with a gun[,] he is fined $50 and put in the chain gang for 60 days.”174 174.Id.Show More She was incorrect only insofar as a mere 60 days’ imprisonment was apparently a light sentence for a Black offender.175 175.For instance, one 1893 survey of the rolls of a South Carolina penitentiary revealed that twelve Black prisoners were serving ten-year sentences “for the simple offense of carrying concealed weapons.” Outrages on the Negro: Rev. Dr. Seaton Says that They Must be Stopped, What Prison Records Show, The Evening Star, Aug. 14, 1893, at 7. The prisoners had been given such lengthy sentences, the source suggested, so that they could be impressed into the “lease system of convict labor” then prevalent in the South. Id.Show More

Much like Wells, periodicals across the South noted the enforcement disparity between white “Southern gentlemen” and Black offenders. As the Houston Daily Post remarked in 1902, “[t]here is one law for the ‘n——r and the Chinaman’ who tote pistols . . . and there is another law for the gentleman who arms himself[.]”176 176.The Gentleman Outlaw, Houston Daily Post, Aug., 14, 1902, at 4 (racial slur censored).Show More In other words, minorities risked severe punishment if caught with weapons. Yet “[g]entlemen of high social and commercial standing” could “walk the streets or ride the roads” while armed without question.177 177.Id.Show More Similarly, a South Carolina paper noted in 1911 that while “[t]here are laws upon the statute books against the carrying of concealed weapons, and occasionally some insignificent ‘n——r’ is haled before the courts and fined . . . but it is very rare that a white man is made to pay the penalty.”178 178.The People Alone Responsible, The Manning Times, Nov. 1, 1911, at 8 (racial slur censored).Show More A Missouri periodical, too, noted in 1903 that both Blacks and whites often carried concealed weapons. But it was Black offenders, not whites, that police made the enforcement priority. Indeed, East St. Louis had begun a “roundup of [the] lawless negro class” with “concealed weapons in their possession.”179 179.Police Start on Roundup of Lawless Negro Class, The Republic, May 11, 1903, at 5.Show More Believing that most crimes were “committed by negroes” whose concealed weapons “enabl[ed them] to commit crime quicker,” the police had arrested “a score of negroes” in recent days.180 180.Id.Show More And in Kentucky, too, there was one law for the white “gentleman” but another for the Black offender. As one writer noted in 1908, “[w]hen old Kentucky tries to convict a white lawbreaker[,] she has an awful job.”181 181.Public Ledger, October 15, 1908, at 2.Show More When a white lawyer shot at someone else, for example, “[h]e got off with a light fine for the offense.”182 182.Id.Show More “[A]nd a jury refused to fine him for carrying a pistol.”183 183.Id.Show More But “a N——r,” he noted, “would have been given the limit in half an hour.”184 184.Id. (racial slur censored).Show More

Likewise, South Carolina openly celebrated the use of its weapon laws to disarm Black citizens. In 1911, two South Carolina periodicals commended the efforts of a particular magistrate, William M. Dorroh, to seize Blacks’ firearms. The Herald and News noted that Magistrate Dorroh had “achieved State-wide mention for his fine record in disarming negroes of their concealed weapons.”185 185.Various and All About, The Herald and News, Aug. 29, 1911, at 8.Show More And The Yorkville Enquirer, too, praised Dorroh for his “fine record in the enforcement of the concealed weapons law since he has been in office.”186 186.South Carolina News, The Yorkville Enquirer, July 7, 1911, at 2.Show More But it was a “fine record” precisely because it was so biased against Blacks.187 187.Id.Show More “Thirty-eight is the number of pistols he has taken from negroes in sixty days,” the Enquirer observed.188 188.Id.Show More While it was “a large number of pistols secured at a good rate per day,” even still, “it would take Magistrate Dorroh a considerable time to disarm all the negroes” in his township.189 189.Id.Show More In the meantime, though, “he [was] being generally commended for his efforts.”190 190.Id.Show More

Perhaps a final quotation in the Atlanta Constitution, from a column penned in 1910, best captures the themes we have developed in this Part: “It has not as yet been shown that the Afro-American is more addicted to the habit of pistol-toting than his white brother, but it is evident that he is much more liable to arrest. For centuries, all over the world, it has been regarded as the prerogative of a gentleman to carry arms and a Southern gentleman knows that, in such case, no peace officer is apt to interfere with him. Indeed, one of the class, when challenged for violating the law against carrying concealed weapons remarked, very truthfully, ‘That law was made for n——rs.’”191 191.The Pistol-Toters, The Appeal, July 2, 1910, at 2 (racial slur censored).Show More

III. Why The Racially Biased Origins of Southern Gun Control Uniquely Matter After Ramos

While Part II dealt largely in original research, scholars have long made the broader point that gun control in the United States has racist origins. What has been less clear, though, is why those origins matter today. Some who support a narrow view of the Second Amendment appear to understand these laws’ biased origins yet draw no broader implications from that fact.192 192.See Spitzer, supra note 22, at 78–79.Show More Others have sought to dismiss the relevance of past racism to the present dialogue.193 193.See Frassetto, supra note 22 at 95–97 (arguing that, in Texas, it was pro-freedman, pro-civil-rights Radical Republicans who supported restrictions on the right to carry firearms).Show More In response, we argue that scholars must grapple with gun control’s racist origins—origins that “uniquely matter” since they continue to burden constitutional rights.194 194.Ramos v. Louisiana, 140 S. Ct. 1390, 1408 (2020) (Sotomayor, J., concurring); see alsoBrief of Italo-American Jurists and Attorneys, as Amici Curiae Supporting Petitioners, New York State Rifle & Pistol Association Inc. v. Corlett (No. 20-843) (arguing that the Court in Corlett should consider New York’s restrictive gun law in light of historical evidence reflecting the state’s efforts to single out and disarm Italians).Show More Indeed, the Supreme Court’s recent decision in Ramos v. Louisiana obliges them to do so.

In Ramos, the Court considered the validity of two state statutes—one from Oregon; the other from Louisiana—that permitted conviction by non-unanimous juries in felony trials.195 195.Ramos, 140 S. Ct. at 1394.Show More While non-unanimity would cause a mistrial anywhere else, in these states, it could support a sentence of life without parole. In a majority opinion by Justice Gorsuch, the Court noted as an initial matter that both states’ laws were “facially race-neutral.”196 196.Id.Show More Nothing about the allowance of a 10-to-2 verdict inherently suggested invidious discrimination. And the reasons for these states’ modern adherence to the non-unanimity rule seemed obscure.

Upon further reflection, though, the Court explained that the “origins” of those laws “are clear.”197 197.Id. (emphasis added).Show More “Louisiana first endorsed nonunanimous verdicts for serious crimes at a constitutional convention in 1898,” where all the talk had concerned preserving “the supremacy of the white race.”198 198.Id.Show More Its delegates were well-aware that “overt discrimination against African-American jurors [would] violat[e] the Fourteenth Amendment.”199 199.Id.Show More So, instead, they adopted a facially neutral rule that permitted non-unanimous verdicts. But the real point was “to ensure that African-American juror service would be meaningless.”200 200.Id.Show More Even when a Black person managed to get on the jury, his vote could be overridden by his white peers. Oregon’s rule, too, could “be similarly traced to the rise of the Ku Klux Klan and efforts to dilute ‘the influence of racial, ethnic, and religious minorities on Oregon juries.’”201 201.Id.Show More None of Ramos’s litigants even disputed those points, and courts in both states had “frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules.”202 202.Id.Show More

So what? Previous parties, amici, and scholars had all urged the Court to treat certain other laws and precedents as “tainted” or “poisoned” for their infection with bias or bigotry.203 203.See, e.g., Charles L. Barzun, Impeaching Precedent, 80 U. Chi. L. Rev. 1625, 1626–30 (2013) (detailing such attempts).Show More But the Court had demurred on those past occasions. Such “extralegal” concerns, as Chief Justice Rehnquist once called them, were “not the usual stuff of Supreme Court debate,” and considering them would be a “disservice to the Court’s traditional method of adjudication.”204 204.Id. (quoting John C. Jeffries & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 280 (2001); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 68–69 (1996)).Show More

It was surprising, then, that the Ramos Court seemed to place such import on “the racist origins of Louisiana’s and Oregon’s laws.”205 205.Ramos, 140 S. Ct. at 1405.Show More And it did so despite these states arguably having “purged” the laws’ earlier taint through subsequent reenactments. Indeed, the majority explained that given the laws’ modern implications for a fundamental right, it could not leave “an uncomfortable past unexamined.”206 206.Id. at 1401 n.44.Show More The majority’s tactic also engendered two concurrences that further endorsed its analytical move. Justice Kavanaugh was left wondering why the Court should sanction a law “that is thoroughly racist in its origins,”207 207.Id. at 1419 (Kavanaugh, J., concurring in part).Show More while Justice Sotomayor believed that “the racially biased origins of the Louisiana and Oregon laws uniquely matter here.”208 208.Id.at 1408 (Sotomayor, J., concurring in part).Show More

Scholars noticed the import of Ramos’s novel approach soon after. “It is not often that the Supreme Court ratifies an entirely new form of judicial argument,” noted Professor Charles Barzun.209 209.Charles Barzun, The Constitution and Genealogy, Balkinization (July 6, 2020), https://balkin.blogspot.com/2020/07/the-constitution-and-genealogy.html. [https://perma.cc/EH4M-B3TZ].Show More “But that may be what happened this past term.”210 210.Id.Show More The Ramos Court had elevated laws’ genealogy from an anti-modality to a new and apparently “legitimate modality.”211 211.Id.; see alsoBarzun, supra note 203, at 1631 (“My claim, in short, is that the effort to historicize or impeach a past decision is a legitimate and potentially useful means of evaluating a decision’s authority as a matter of precedent.”).Show More Still, Professor Barzun struggled to explain precisely why the Court thought genealogy relevant. Though laws may be invalid if conceived with animus, Oregon’s and Louisiana’s later reenactments seemed to have purged it. And genealogical arguments may often be logically fallacious. Indeed, logicians call it the “genetic fallacy” to “assume[ ] that a statement, position, or idea must be flawed” simply because its source happens to be flawed.212 212.Jacob E. Van Vleet, Informal Logical Fallacies 19 (2011).Show More

We think, though, that Ramos was not flawed or fallacious or, as the dissent charged, dealing in “ad hominem rhetoric.”213 213.140 S. Ct. at 1426 (Alito, J., dissenting). Justice Alito, joined by Chief Justice Roberts and Justice Kagan, argued that the tainted “origins of the Louisiana and Oregon rules have no bearing on the broad constitutional question that the Court decides.” Id. But having “lost” in Ramos, Justice Alito switched gears two months later when the Court in Espinoza considered whether the Montana Supreme Court had violated the Free Exercise Clause when it applied the “no-aid provision” of the Montana Constitution to bar religious schools from benefiting from a state program that provided tuition assistance. Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2268 (2020) (Alito, J., concurring). In his concurring opinion, Justice Alito argued that Ramos established that the Court may examine the motivation behind the passage of a statute or a state constitutional provision to smoke out illicit bigotry. Justice Alito, quoting Ramos, concluded that Montana’s no-aid provision remained “‘[t]ethered’ to its original ‘bias”’ against Catholics because the state had not “‘actually confront[ed]’ the provision’s ‘tawdry past in reenacting it.”’ Id. at 2274 (quoting 140 S. Ct. at 1410) (Sotomayor, J., concurring in part). Combining the opinions of Ramos and of Espinoza, six Justices—all but Justices Kagan and Barrett and Chief Justice Roberts—have endorsed and applied the genealogical taint principle.Show More Rather, it told us something important about how future courts and scholars should approach historical analysis and, ultimately, originalism. As many scholars have persuasively argued, we can think of constitutional exegesis as having a pair of key stages: interpretation and then construction.214 214.Randy E. Barnett, Interpretation and Construction, 34 Harv. J.L. & Pub. Pol’y 65, 65–66 (2011); Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 455–56 (2013).Show More When we interpret a text, we seek to discover its communicative content—what the words meant at the time of their ratification.215 215.Solum, supra note 214, at 457.Show More When we then construe the text, we determine what legal effect we should give to that meaning.216 216.Id.Show More The clearer the text, the smaller the “construction zone.” But sometimes constitutional provisions are “general, abstract, [or] vague,” so we must resort to other heuristics of meaning when applying them “to concrete constitutional cases.”217 217.Id. at 458.Show More

One of those heuristics of meaning, of course, is historical practice.218 218.We are primarily referring here to liquidation. See The Federalist No. 37, at 225 (James Madison) (Clinton Rossiter ed., 1961); see also Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 11–12 (2001); William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).Show More To discern how fundamental a right really is, we might look to how people in the past viewed the right—how they exercised it and which restrictions upon it they tolerated or endorsed. But Ramos gives us a critical caveat about how we should conduct this historical research. When assessing a past restriction’s probative weight on the true scope of a constitutional guarantee, we cannot simply ignore past actors’ illegitimate and ulterior motives in enacting such restrictions. Rather, illegitimate motives tell us that past actors restricted a right not necessarily because they considered it trivial, but because they thought their impermissible motive—for instance, preservation of white supremacy—the greater priority. So ignoring historical motives (and, perhaps even more important, historical enforcement patterns) might lead us to wrongly over-value certain historical evidence in a modern constitutional calculus. Translated to the controversy before the Court in Ramos itself, concluding that historical actors did not consider jury unanimity an important right because of their longstanding decision to permit nonunanimity would be a mistake. Rather, the impermissible motives behind that historical practice gutted those restrictions’ probative weight in assessing how broad or fundamental was the burdened right.

With that context in mind, understanding Ramos’s import for the Second Amendment becomes simple. When courts—and, later this term, the Supreme Court—assess the scope of the “bear” right, they may consider historical practice relevant in that assessment. But that does not involve simply looking at old laws written on a page. Judges instead must grapple with those laws’ historical motivations and enforcement patterns. And to the extent that such analysis reveals impermissible motives and disparate enforcement, judges must discount the probative weight of that evidence accordingly. In other words, Ramos tells us that it is illegitimate to conclude that the modern “bear” right is susceptible to copious restrictions because racist Southern authorities restricted Black citizens’ past exercise of that right. Such evidence may be powerfully probative of historical racism, but its probative weight regarding history’s true verdict on the scope of the Second Amendment should be considered slim. Otherwise, courts risk laundering past racist restrictions to validate modern burdens on constitutional rights.

Conclusion

On May 10, 1865, Frederick Douglass delivered an address in New York City that advocated for a constitutional amendment to make guarantees in the Bill of Rights directly applicable to the states.219 219.“In What New Skin Will the Old Snake Come Forth?: An Address Delivered in New York, New York, on 10 May 10, 1865,” reprinted in 4 The Frederick Douglass Papers 79, 83–84 (John W. Blassingame & John R. McKivigan eds., 1991).Show More Without one, he said, state legislatures could “take from [free Blacks] the right to keep and bear arms . . . [n]otwithstanding the provision in the Constitution of the United States.”220 220.Id.Show More As we now know, the nation responded by ratifying the Fourteenth Amendment. Ironically, New York today seeks to defend its “proper cause” requirement by invoking old laws of just the sort that Douglass decried. Its brief in opposition to certiorari in NYSRPA II, for instance, cited Kachalsky twenty-nine times and advanced multiple Southern gun-control statutes to argue that history supports continued restrictions on public carry.221 221.Brief of Respondents at iii, v–vi, N.Y. State Rifle & Pistol Ass’n v. Corlett, 20-843 (2021), 2021 WL 723110 (citing Kachalsky and several Southern gun-control statutes).Show More Apparently, that historical evidence did not dissuade the Court from taking up the case. Nor, when it turns to the merits, should the Court reinvigorate tainted artifacts of a bygone era to burden constitutional rights in the modern one.

  1.  

A Prelude to a Critical Race Theoretical Account of Civil Procedure

In this Essay, I examine the lack of scholarly attention given to the role of civil procedure in racial subordination. I posit that a dearth of critical thought interrogating the connections between procedure and the subjugation of marginalized peoples might be due to the limited experiences of procedural scholars; a misconception that procedural rules are a technical, objective, neutral area; and avoidance of discussion of race or other aspects of identity unless there is a case, material, or scholarly topic that meets an unreasonably high standard. I emphasize the importance of a critical race analysis of civil procedure.

Introduction

In response to the uprisings and social movement for racial justice following police officers1 1.The social movement, uprisings, and demonstrations have primarily focused on police killings of Black people, but there also have been notable killings of Black people by people who weren’t police officers. The summer of 2020 witnessed significant demonstrations against those other killings as well, including demonstrations against Travis McMichael, Gregory McMichael, and William “Roddie” Bryan Jr. killing Ahmaud Arbery. Brandon Tensley, Ahmaud Arbery and the Resilience of Black Protest, CNN Politics (May 12, 2020, 8:54 PM), https://www.cnn.com/2020/05/12/politics/ahmaud-arbery-black-protest-pandemic/index.html. [https://perma.cc/V87J-F24C]; Jessica Savage, Looking Back at the Arbery Case and Where Do We Go from Here?, CNN (Feb. 23, 2021, 5:36 PM), https://www.wtoc.com/2021/02/23/looking-back-arbery-case-where-do-we-go-here/ [https://perma.cc/Z9J9-RTMZ]. Others have discussed the relationship between non-police killings of Black people and police killings of Black people. Lyndsey Gough, Protest Held to Demand Arrests for the Death of Ahmaud Arbery, WTOC (May 6, 2020, 10:52 PM), https://www.wtoc.com/2020/05/06/protest-held-demand-arrests-death-ahmaud-arbery/ [https://perma.cc/XPN3-KF4Y]; Shervin Assari, George Floyd and Ahmaud Arbery Deaths: Racism Causes Life-threatening Conditions for Black Men Every Day, The Conversation (June 1, 2020, 8:14 AM), https://theconversation.com/george-floyd-and-ahmaud-arbery-deaths-racism-causes-life-threatening-conditions-for-black-men-every-day-120541 [https://perma.cc/5JCE-5A34]. In this Essay, I tend to refer to police killings of Black people because that seemed to be the primary focus of the largest and most sustained mobilizations, but I don’t mean to prioritize one group of killings of Black people over another by doing so.Show More killing George Floyd, Breonna Taylor, and other Black2 2.I capitalize “Black” and do not capitalize “white,” “people of color,” or “women of color.” See Portia Pedro, Toward Establishing A Pre-Extinction Definition of “Nationwide Injunctions”, 91 U. Colo. L. Rev., 849 n.5 (2020); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L Rev. 1331, 1332 n.2 (1988) [hereinafter Crenshaw, Race] (“Blacks, like Asians, Latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun.”); see also Kimberle Williams Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1244 n.6 (1991) (“. . . I do not capitalize ‘white,’ which is not a proper noun, since whites do not constitute a specific cultural group.”).Show More people,3 3.Demonstrations Force America to Reckon with Contentious Past, N.Y. Times (June 16, 2020), https://www.nytimes.com/2020/06/16/us/george-floyd-rayshard-brooks-protests.html [https://perma.cc/M54X-7JKD]; Damian Cave, Livia Albeck-Ripka & Iliana Magra, Huge Crowds Around the Globe March in Solidarity Against Police Brutality, N.Y. Times (June 6, 2020), https://www.nytimes.com/2020/06/06/world/george-floyd-global-protests.html [https://perma.cc/6AND-3V3K].Show More several dozen civil procedure scholars gathered virtually during the summer of 2020 to discuss how to include racial justice and issues of race in our classrooms.4 4.This July 22, 2020 session addressed racial and social justice in civil procedure.Show More While this event was a valiant attempt, it struck me as long overdue.

In this Essay, first, I share a personal experience with police as part of suggesting that Black people’s interactions with police might be a source of collective identity and might help us (Black proceduralists, litigators, and scholars of color) to see some of the role of racial subordination within policing and procedure.5 5.Perhaps there might not be as much in the way of a racial analysis, or analysis integrating other aspects of marginalized identities, within civil procedure because procedural scholars may be primarily white, heterosexual, cisgender men who might not be as aware of the role of race or identity in their experiences in the same way that many people of color, women, members of the Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ) community, people who identify as gender nonbinary, and people with disabilities might be.Show More Next, I describe some of the importance of developing a critical race analysis of civil procedure and briefly discuss some of the reasons that this analysis might be underdeveloped.

I. Interacting with the Police as a Collective Black Experience

My first memory of my father is also my first memory of the police.6 6.To be specific, the Los Angeles County Sheriff’s Department.Show More I was almost five years old when it happened. I was riding as a passenger in my dad’s car, a 1977 Dodge Monaco, as my father, who is Black and, at the time, was a bit under 30 years old, was driving. We were on our way to pick up my cousin from preschool. As my dad and I passed his high school alma mater, sheriffs pulled us over. The deputies approached the car with their guns drawn, pointed at us. They made my dad get out with his hands up, made him lay on the ground, and handcuffed him. With the amount of force that they displayed, he was scared about what they might do to me, especially if I surprised them. He told them that his 5-year-old daughter was in the car. Their response to hearing that a child was in the car was to yell out to 5-year-old me, “One move and I’ll blow your head off.”

The sheriffs didn’t physically harm either of us in that encounter, but our safety was far from guaranteed. When I was older, my parents explained to me that the supposed reason that the sheriffs pulled us over that day was that the prior owner of the car had tampered with one letter of the license plate to make it spell out his name backwards. My dad’s Irish friend had used nail polish to make a “1” look like an “I” so the license plate spelled his name (Patrick) backwards. My dad had ordered his own vanity license plate and was waiting on its arrival, but my dad hadn’t even realized that Patrick had altered the current license plate. My dad had only had the car for a few weeks at most when sheriffs pulled him over, but (white) Patrick had driven the car with the altered license plates for years without any issues from police or sheriffs. A part of me wonders if some of the reason that the sheriffs reacted with such a show of force toward me and my father when they had not pulled Patrick over for the license plate issue was due to sheriffs’ reactions to seeing my Black dad driving a car that, even though it was repainted to be tan and brown, clearly used to be a California Highway Patrol cruiser.

After the sheriffs forced my dad to get out of the car and questioned him, he gave consent for them to search him and the car. On that day—as I sat on the curb, with my legs in the street and watched—I had my first real life lesson on encounters with the police as a Black person. My first lesson of how Black people interact with the police to try to remain unharmed was through this experience and stories of it after.

In separate sheriff cars, they took us both down to the station and harassed him for so long that my next meal came from the station vending machine. As a five year old with no understanding of the context, I remember thinking that the deputies were so nice for giving me that tuna fish sandwich. Because I was hungry. And had no parent or guardian with me. Because they took my dad and I to the station for no reason. Instead of giving him a simple fix-it ticket, they brought criminal charges against him. My parents had to hire a lawyer and pay hundreds of dollars just to get the charges dropped.

I wonder how many other Black children have similar firsts. My father later explained that, as a Black man in a Black, working class neighborhood with his child in the car, he thought that the best and safest way for him to handle the encounter was to give consent to whatever search the police requested. Looking back, I think that he was probably right. Because the deputies stopped us with such a show of force, it is hard to imagine them peacefully accepting a refusal to search. This was my first experience in what would become an oft-repeated role as a Black girl and later woman with Black boys and men (or other boys or men of color).7 7.I mention some of the role of sex/gender and race/ethnicity in my experiences with police. I do so only to share what patterns there have been in my experiences, not to erase or ignore the experiences of Black girls and women, other girls and women of color, transgender girls and women, other members of the LGBTQ+ community, people with mental health issues or disabilities, or any other group who tends to have a heightened risk of interactions with police and are too often on the receiving end of police violence.Show More Unfortunately, this type of experience is not unique for Black people in the United States. This interaction (along with many others) is a part of the experiences that I have drawn from as I make life decisions. It informs my scholarship, just as others’ life experiences inform their research agendas.

There are so many different directions in which this encounter could have gone. The direction that had worried my father most was that the sheriffs might have hurt or killed one or both of us, as has happened to so many other Black people. There may have been the possibility of criminal charges against the officers in that situation, but, depending on the circumstances and the political reality of the situation, there is a significant possibility that the only legal recourse left would have been civil litigation. But no civil claim against a law enforcement official or department would have been successful unless it survived summary judgment, a civil procedural hurdle.8 8.See, e.g., Shirin Sinnar, Civil Procedure in the Shadow of Violence, inA Guide to Civil Procedure: Integrating Critical Legal Perspectives [Pt. III: Procedure Immunizing Police Violence] (NYU Press) (Brooke Coleman, Suzette Malveaux, Portia Pedro, & Elizabeth Porter, eds., forthcoming 2022) (on file with author) (describing how the Supreme Court has used civil procedure, especially qualified immunity and summary judgment, to “immuniz[e] police violence”).Show More

In a country that is, in part, founded on white supremacy,9 9.Paul Finkelman, The Founders and Slavery: Little Ventured, Little Gained, 13 Yale J. L. & Human. 413, 427–45 (2001) (noting the Constitution’s direct and indirect protections of the enslavement of African and Black peoples through various clauses including, among others, the Three-Fifths Clause, the Slave Trade Clause, the Fugitive Slave Clause, the Domestic Insurrections Clause, and the Electoral College).Show More it can feel like a losing battle to try to identify and counteract the various factors and structures that contribute to Black people being harmed by, or dying at the hands of, police. In looking at one of my own areas of expertise, it is important to understand the ways in which civil procedure encourages and excuses police violence.10F10 10.See Sinnar, supra note 8.Show More When someone harmed by police (or the loved ones of someone harmed) brings suit to hold a police officer, a police department, or the city liable civilly (not criminally), the defendant (office, police department, city) may file a motion for summary judgment to ask that the judge decide the case in their own favor. Under Federal Rule of Civil Procedure 56, a judge should grant summary judgment only if there is no genuine dispute of material fact (such that the movant—here, the police officer, department, and city—is entitled to judgment as a matter of law).11 11.Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”).Show More According to precedent, when deciding a motion for summary judgment, judges must look at the record in the light most favorable to the non-moving party (the plaintiffs who police harmed or whose loved ones have been harmed) and must draw reasonable inferences in that party’s favor.12 12.Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).Show More Under the doctrine of qualified immunity, police officers, their departments, and the cities for which they work are immune from civil suit—meaning that they aren’t liable civilly—in certain circumstances. Qualified immunity protects the defendants from litigation if the officer did not violate a clearly established constitutional right.13 13.Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).Show More Through civil procedural decisions against Black plaintiffs harmed by police, the Supreme Court has affirmed lower courts that have granted summary judgment because they found that defendants were protected by qualified immunity even when there was a genuine factual dispute that should have gone to the jury.14 14.See, e.g., Scott v. Harris, 550 U.S. 372 (2007) (holding that a police officer did not violate the Fourth Amendment by deliberately ramming his car into the car of a motorist suspected of speeding); Sinnar, supra note 8 (noting that Scott v. Harris included a factual dispute that would ordinarily have gone to a jury and that the decision “has given lower courts greater latitude to immunize police officers rather than allow juries to decide whether an officer’s use of force was reasonable.”).It seems that no judge or justice mentioned Victor Harris’s race, Black—or the race of the officer (Timothy Scott, white) who rammed Harris’s car and rendered him quadriplegic—in any opinion. See Jeffrey W. Stempel, Taking Cognitive Illiberalism Seriously: Judicial Humility, Aggregate Efficiency, and Acceptable Justice, 43 Loy. U. Chi. L.J. 627, 642 (2012). vic2k3, Why I Ran., YouTube (Dec. 9, 2009), https://www.youtube.com/watch?v=‌JATVLUOjzvM (featuring interviews with Victor Harris and Timothy Scott) [https://perma.cc/3F4F-8CUM].Show More There might be much more if we dig beneath the surface to critically analyze civil procedure as a tool to reinforce racial subjugation.

A. Black Experiences with Police

Black people report a higher number of interactions with police (including police sightings) than the national average.15 15.Lydia Saad, Black Americans Want Police to Retain Local Presence, Gallup, 2020, news.gallup.com/poll/316571/black-americans-police-retain-local-presence.aspx21 (last visited Nov 3, 2020) [https://perma.cc/M5NT-44QR]. More Black people than white people report seeing police in our neighborhoods “often or very often.” Id.Show More More contacts between Black people and police means greater exposure of Black people to the “possibility of violence” at the hands of the police.16 16.Devon W. Carbado, Predatory Policing, 85 UMKC L. Rev. 545, 561 (2017); see also Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125, 128 (2017) (explaining “the significant ‘circuits of violence’ through which the ordinary (African Americans’ vulnerability to ongoing police surveillance and contact) becomes the extraordinary (serious bodily injury and death). . . . For there is a direct relationship between the scope of ordinary police authority, on the one hand, and African American vulnerability to extraordinary police violence, on the other.”); Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L. J. 1479, 1509–11 (2016) (further describing the Police Violence Model). The Police Violence Model of Professor Devon Carbado and Patrick Rock explains why a higher level of police interactions creates a higher risk of police violence for Black people:First, the simple fact of repeated police interactions overexposes African Americans to the possibility of police violence.Second, the fact that African Americans’ exposure to the police occurs against the background of stereotypes of African Americans as violent and dangerous increases the likelihood that police officers will interact with African Americans from the perspective that violent force is both necessary and appropriate.Third, the more exposed African Americans are to the police, the greater the probability that they will be arrested.Fourth, black peoples’ repeated exposure to the police potentially increases their incarceration rates or facilitates some form of system involvement, and the incarceration and system involvement of African Americans likely mediates how police officers interact with black people. . . .Fifth, the more numerous African Americans’ contacts with the police are, the more vulnerable African Americans are to a set of violence-producing insecurities or vulnerabilities police officers experience in the context of police encounters.Devon W. Carbado & Patrick Rock, What Exposes African Americans to Police Violence?, 51 Harv. C.R.-C.L. L. Rev. 160, 164–65 (2016).Show More Of reported experiences with police, over 40% of Black people’s experiences with police are not positive, while only 25% of white people’s reported experiences with police are not positive.17 17.Camille Lloyd, For Black Americans, 41% of Police Encounters Not Positive, Gallup (July 30, 2020), https://news.gallup.com/poll/316247/black-americans-police-encounters-not-positive.aspx (last visited Nov 3, 2020) [https://perma.cc/M5HX-8CGN].Show More Generally, Black people’s level of confidence in police differs from, and is lower than, white people’s level of confidence in the police more than those groups’ confidence levels differ on almost any other social institution.18 18.See Jeffrey M. Jones, Black, White Adults’ Confidence Diverges Most on Police, Gallup (Aug. 12, 2020), https://news.gallup.com/poll/317114/black-white-adults-confidence-diverges-police.aspx (last visited Nov 3, 2020) (noting that 56% of white adults say that “they have ‘a great deal’ or ‘quite a lot’ of confidence in the police” while only 19% of Black adults say the same) [https://perma.cc/5A3A-HB42]. “This 37-percentage-point racial gap is the largest found for any of 16 major U.S. institutions rated in Gallup’s annual Confidence in Institutions poll.” Id. There was only a gap of 5% or less in levels of confidence for half of rated institutions. Id. The only other institution for which Black and white respondents’ ratings are nearly as large is a 33-percentage-point gap in levels of confidence in President Trump’s administration. Id.Show More Perhaps in part because of these higher levels of exposure to police, higher levels of police encounters that aren’t positive, and lower levels of confidence in police, the Black Census Project reported that, in 2019, “[t]he vast majority of Black Census respondents see the excessive use of force by police officers (83 percent) and police officers killing Black people (87 percent) as problems.”19 19.Aaron Ross Coleman, How Black People Really Feel About the Police, Explained, Vox (June 17, 2020, 8:30 AM) https://www.vox.com/2020/6/17/21292046/black-people-abolish-defund-dismantle-police-george-floyd-breonna-taylor-black-lives-matter-protest [https://perma.cc/VCT2-4LSJ] (quoting More Black than Blue: Politics and Power in the 2019 Black Census, Black Futures Lab 8 (June 2019), https://blackfutureslab.org/wp-content/uploads/2019/06/Digital-More-Black-Than-Blue-2.pdf [https://perma.cc/NS9F-S68H]); see also Drew Desilver, Michael Lipka & Dalia Fahmy, 10 Things We Know About Race and Policing in the U.S., Pew Research Center, 2020, https://www.pewresearch.org/fact-tank/2020/06/03/10-things-we-know-about-race-and-policing-in-the-u-s/ (last visited Nov 3, 2020) [https://perma.cc/9QL9-LL5U]. 33% “of Black adults said that police in their community did an ‘excellent’ or ‘good’ job in using the right amount of force (compared with 75% of white[] [people]), treating racial and ethnic groups equally (35% vs. 75%), and holding officers accountable for misconduct (31% vs. 70%).” Id.Show More These experiences and perspectives of police are common among many Black people regardless of lines of class, education, and social opportunity. Professor Devon Carbado has shared how his own experiences with the police, even as an elite Black legal scholar, are fraught with “questions [that] are part of black people’s collective consciousness.”20 20.These questions are part of Black people’s collective consciousness:I have not, however, been able to normalize my experiences with the police. They continue to jar me. The very sight of the police in my rear view mirror is unnerving. Far from comforting, this sight of justice (the paradigmatic site for injustice) engenders feelings of vulnerability: How will I be over-policed this time? Do I have my driver’s license, insurance, etc.? How am I dressed? Is my UCLA parking sticker visible? Will any of this even matter? Should it?And what precisely will be my racial exit strategy this time? How will I make the officers comfortable? Should I? Will I have time—the racial opportunity—to demonstrate my respectability? Should I have to? Will they perceive me to be a good or a bad Black?Devon W. Carbado,(E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 952 (2002).Show More Recent attention called to police murdering Black people has “presented a readily discernible target around which to organize.”21 21.Crenshaw, Race, supra note 2, at 1384.Show More In the context of police killings and other extrajudicial killings of Black people, there is “enough similarity between [our] life experiences . . . to warrant collective political action.”22 22.Id. at 1384.Show More

B. Shared Experience with Policing as a Source of Black Collectivity and Mobilization to Support Black Interests and Lives

Personal experiences with, and data on, the policing of Black bodies in the United States may shed light on a collective experience among many Black people and, perhaps, more broadly, many people of color.23 23.I refer to “people of color” throughout this Essay intending to include Black, Latinx, Asian Americans, Native Americans, and other Indigenous peoples, Arab Americans, and other racialized groups (non-whites). I do so understanding that this term groups people who have some shared experiences, but the term might also be problematic in that it does not emphasize differences in how these various communities, and others within them, might experience racism and other sources of oppression. See Meera E. Deo, Why BIPOC Fails, 107 Va. L. Rev. Online 115, [Pt. II When Unity Leads to Erasure] (2021).Show More Policing is one area in which many of us continue to experience racism in similar debilitating and dangerous ways, often regardless of income, level of education, and access to other opportunities. The national spotlight, education, concern, and momentum galvanized by Summer 2020 mobilizations against police killings of Black people provides what may have become an otherwise increasingly rare opportunity for a Black collective identity24 24.See Angela Onwuachi-Willig,The Trauma of the Routine: Lessons on Cultural Trauma from the Emmett Till Verdict, 34 Socio. Theory 335 (2016) (discussing the ways in which a routine infliction of harm on a subordinated group can constitute collective trauma and cultural trauma); see also Jalila Jefferson-Bullock & Jelani Jefferson Exum, That Is Enough Punishment: Situating Defunding the Police Within Antiracist Sentencing Reform, 48 Fordham Urb. L.J. 625, 636–41 (2021) (discussing the ways in which Black people in the United States are experiencing a racial and cultural trauma from recent police killings of Black people).Show More and action supporting Black lives. Policing seems to be a great equalizer of what could otherwise be a fragmented Black society in the United States. Many of us (Black people) experience interactions with the police similarly to the extent that the experience remains one of collectivity and has become a central part of the essence of what it means to be Black—the ability to be murdered without cause and without redress. This moment of mobilized Black collectivity comes, however, at a time when prior civil rights victories for Black people and other marginalized communities continue to be threatened. A good understanding of the relationship between these two oppositional mobilizations can help anti-subordination litigants, lawyers, and scholars to maximize litigation victories and to minimize losses.

For Black people, this moment—of mobilized Black collectivity with the potential for interest convergence at the same time that past victories are threatened—is rare although not without precedent.25 25.See Richard Gergel, Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring 4–5 (2019) (describing how the acquittal of a white police chief in the beating and blinding of a Black World War II Army veteran prompted the presiding judge to issue a series of landmark civil rights decisions). See generally Richard Delgado, Why Obama?: An Interest Convergence Explanation of the Nation’s First Black President, 33 L. & Ineq. 345 (2015) (discussing the election of President Barack Obama as a moment of interest convergence between people of different backgrounds); William M. Carter, Jr., The Thirteenth Amendment and Interest Convergence, 71 Md. L. Rev. 21 (2011) (exploring interest convergence in the passage of the Thirteenth Amendment to the U.S. Constitution); Sheryll Cashin, Shall We Overcome? Transcending Race, Class, and Ideology Through Interest Convergence, 79 St. John’s L. Rev. 253, 255 (2005) (discussing interest convergence in the Civil Rights Era); Marisa Abrajano & Zoltan L. Hajnal, White Backlash: Immigration, Race, and American Politics 2 (2017) (discussing the interrelation between opinions on immigration and relations between racial and ethnic groups within the United States); Kevin M. Kruse, White Flight: Atlanta and the Making Of Modern Conservatism 13–15 (2013) (discussing the effect of desegregation and white flight on shifting political coalitions in Atlanta); Gregory S. Jacobs, Getting Around Brown: Desegregation, Development, and The Columbus Public Schools xii–xiii (1998) (discussing the interrelation between race, class, and politics in response to desegregation in Columbus, Ohio); see also Ta-Nehisi Coates, The First White President, The Atlantic (Oct. 2017), https://www.theatlantic.com/magazine/archive/2017/10/the-first-white-president-ta-nehisi-coates/537909/ [https://perma.cc/FE5H-4YTA] (discussing the coalition of white classes whose alignment culminated in the 2016 election of President Donald Trump).Show More A time of strong, shared, collective Black identity with the sociopolitical support to undo our structural subordination is singular, in part, because of the prior meaningful gains in opportunities for some Black people.26 26.Crenshaw, Race, supra note 2, at 1383–84.Show More Much of the formal symbolic subordination of Black people has been illegal and disallowed for longer than my lifetime.27 27.See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) (finding that segregation in public schools violates the Equal Protection Clause even if physical facilities were relatively equal); Gomillion v. Lightfoot, 364 U.S. 339 (1960) (holding that a state violates the Fifteenth Amendment when it constructs jurisdictional boundary lines with the purpose of denying equal representation to Black voters); Bailey v. Patterson, 369 U.S. 31 (1962) (finding that states may not require racial segregation of transportation facilities); Civil Rights Act of 1964, Pub. L. no. 88-353, 78 Stat. 241 (1964) (outlawing literacy tests as a qualification for voting in federal elections unless certain protections were observed); Loving v. Virginia, 388 U.S. 1 (1967) (finding that statutes outlawing interracial marriage violated the Fourteenth Amendment and the Equal Protection and Due Process Clauses); Fair Housing Act of 1968, 42 U.S.C. §§ 3601 et seq. (outlawing discrimination in the sale or rental of housing); Shelley v. Kraemer, 334 U.S. 1 (1948) (holding that racially restrictive covenants violate the Equal Protection Clause).Show More As Professor Kimberlé Crenshaw has noted, Black people may have lost much of our collectivity28 28.Crenshaw, Race, supra note 2, at 1383 n. 197: (“By ‘collectivity,’ I refer to the recognition of common interests and the benefits derived by Blacks of all classes in sharing the burdens of social struggle. The potential for collective struggle is maximized where the grievance is shared by all. It was clear that racial segregation, for example, affected all Blacks. The creation of opportunity for some Blacks—however small the number may be—can obscure the degree to which Blacks have common interests that warrant continual collective struggle.”).Show More due to the formal reforms of the civil rights victories.29 29.Id. at 1383–84.Show More The reforms of the civil rights movement made it so fewer Black people experience racism in collective ways that are similar to each other.30 30.Id.Show More This is particularly true for Black people with greater access to capital than others. The formal end of the apartheid regime in the United States left Black people more fractured because those reforms let some of us improve our material situations much more than others.31 31.Id. at 1381–84.Show More

While many of the current efforts to protect Black lives will aim at changing police training, defunding police, or abolishing police, much of this effort inspired by the Movement for Black Lives will also aim at compensating Black people and our families through the legal process.32 32.See, e.g., Amna A. Akbar, Law’s Exposure: The Movement and the Legal Academy, 65 J. Legal Educ. 352, 357–58, 370 n.73 (2015); Kwadwo Frimpong, Black People Are Still Seeking Racial Justice—Why and What to Do About It, Brookings Inst. (Nov. 12, 2020), https://www.brookings.edu/blog/how-we-rise/2020/11/12/black-people-are-still-seeking-racial-justice-why-and-what-to-do-about-it/ [https://perma.cc/3E6E-4ZC3].Show More Historically, demands of movements inspired by Black collective identity are not typically limited to ending one singular condition or phenomenon (such as police murders of Black people), but also traditionally insist on the inclusion of Black people in the U.S. “political imagination,” even beyond policing.33 33.Crenshaw, Race, supra note 2, at 1365.Show More

II. The Current Import of a Critical Race Theoretical
Account of Civil Procedure

There is arguably not yet a “Whiteness as Procedure,”34 34.See Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1714 (1993).Show More an “(E)racing the Fourth Amendment,”35 35.See Carbado, supra note 20.Show More or a critical race civil procedure term as ubiquitous as intersectionality36 36.See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 141–52.Show More is in constitutional law and civil rights. A primary purpose of critical race theory is to “reveal[] the ways in which racial subordination is embedded in social structures and bureaucracies.”37 37.Portia Pedro, Forging Fortuity Against Procedural Retrenchment: Developing a Critical Race Theoretical Account of Civil Procedure, inA Guide to Civil Procedure: Integrating Critical Legal Perspectives (NYU Press) (Brooke Coleman, Suzette Malveaux, Portia Pedro, & Elizabeth Porter, eds., forthcoming 2022) (on file with author).Show More Within law and litigation, civil procedure provides the structure for deciding who can bring a claim to court to request a remedy for the harms that they have suffered. To prevent civil procedure from reinforcing, or continuing to reinforce, racial subjugation, we need to understand how these seemingly technocratic or neutral rules and doctrine are already deployed in ways that reinforce existing hierarchies including white supremacy. Part of this project is to develop an understanding of what I call “procedural identity”—how aspects of identity, including race, sex, gender identity, sexual orientation, disability, and religion have affected (and been affected by) procedural standards. Mapping out procedural identity within civil procedure could be an impetus for changing procedural standards in a way that prevents further subjugation of marginalized groups.

In this Essay, I do not attempt to resolve the longstanding debate over the legitimacy or efficacy of rights discourse.38 38.For descriptions of, and views on, the legitimacy and efficacy of rights discourse, see Crenshaw, Race, supra note 2, at 1381.Show More But civil rights reform may play a role in the continued subordination of Black people by “creat[ing] the illusion that racism is no longer the primary factor responsible for the condition of the Black underclass.”39 39.Id. at 1381. (“[T]he very transformation afforded by legal reform itself has contributed to the ideological and political legitimation of continuing Black subordination.”); see also Bernard E. Harcourt, Foreword: “You Are Entering a Gay and Lesbian Free Zone”: On the Radical Dissents of Justice Scalia and Other (Post-) Queers. [Raising Questions About Lawrence, Sex Wars, and the Criminal Law], 94 J. Crim. Law & Crimin. 503, 510 (2004). (arguing that “to properly understand Lawrence—and other sex and cultural wars—we need a much finer grained understanding of sexual projects and of the fragmentation of those projects.”).Show More Civil rights reform may have increased “access to the dominant framework”40 40.Harcourt, supra note 39, at 534.Show More without challenging, questioning, or changing the underlying subordination.

A critical race analysis of civil procedure within the context of police violence reveals areas of procedure that generally will not provide justice for Black people harmed by police. Some of those doctrinal areas, such as summary judgment in police brutality cases, do not need reform. They need radical transformation. Although civil rights litigation may provide relief to some Black people (and others) harmed by police, there is still a need for something akin to a “politics of spleen”41 41.Although I attempt to give something of a definition of “politics of spleen” in the text, I worry that there is still something lost in the summary that might be better described in a quotation:Perhaps the best or only way to express this politics, then, is through a pastiche of post-queer venom. It has something to do with “the intense charge that comes with transgression and the pleasure of that transgression.” It involves “an alternate culture in and around it, to be taken seriously, and left alone.” It is a “boundary-free zone in which fences are crossed for the fun of it, or simply because some of us can’t be fenced in. It challenges either/or categorizations in favor of largely unmapped possibility.” It is nostalgic, transgressive, full of hope and hopeless at the same time.Id. at 534. (internal citations omitted). Something in this reminds me of what I’ve read about the Black Panther Party and other Black people armed in self-defense and fighting for liberation, but much of that was before my time, so I am not sure where these experiences differ and converge.Show More that others have described for the LGBTQ community.42 42.Harcourt, supra note 39, at 534.Show More A “politics of spleen” incorporates “the need to transgress limits that do not make room for all of us.”43 43.Harcourt, supra note 39, at 532 (quoting Carol Queen & Lawrence Schimel, Introduction to PomoSexuals: Challenging Assumptions about Gender and Sexuality 19, 21–23 (Carol Queen & Lawrence Schimel eds., 1997)).Show More

Perhaps more post-slavery Black people living in the segregated, apartheid, Jim Crow era had a similar sort of politics of spleen. The existence and life of a free Black person explicitly threatened the fundamental sociopolitical and cultural structure of the United States and was, in and of itself, a transgression. This politics of spleen might help to explain why numerous Black people and organizations thought that the only way that Black people would be fed,44 44.See, e.g., Husain Lateef & David Androff, “Children Can’t Learn on an Empty Stomach”: The Black Panther Party’s Free Breakfast Program, 44 J. Soc. & Soc. Welfare 3 (2017); Erin Blakemore, How the Black Panthers’ Breakfast Program Both Inspired and Threatened the Government, History (last updated Jan. 29, 2021), history.com/news/free-school-breakfast-black-panther-party [https://perma.cc/8Q98-LE2Z]; History.com Editors, Black Panthers, History (last updated Jan. 26, 2021), history.com/topics/civil-rights-movement/black-panthers [https://perma.cc/KU4P-9YK2].Show More that Black children would learn,45 45.See, e.g., Hakim M. Rashid & Zakiyyah Muhammad, The Sister Clara Muhammad Schools: Pioneers in the Development of Islamic Education in America, 61 J. Negro Ed. 178 (1992).Show More that Black people would be gainfully employed,46 46.See, e.g., Nafeesa Muhammad, The Nation of Islam’s Economic Program, 1934-1975, Blackpast (Apr. 1, 2020), https://www.blackpast.org/african-american-history/the-nation-of-islams-economic-program-1934-1975/ [https://perma.cc/XT27-W9CZ].Show More and that Black people would be safe47 47.See, e.g., Lateef & Androff, supra note 44, at 11.Show More was if we took those responsibilities upon ourselves and did not expect the liberal state to embrace us.

That we may have lost this politics of spleen in the context of police violence through assimilationist civil rights reform might have been unavoidable in some ways. As Professor Bernard Harcourt has described, “the politics of spleen may be fundamentally unstable in the criminal law context.”48 48.Harcourt, supra note 39, at 548–49.Show More It may be that the politics of spleen only existed in its true form in the U.S. LGBTQ community before Lawrence v. Texas,49 49.539 U.S. 558 (2003).Show More which held that a state criminal prohibition on sodomy was unconstitutional,50 50.Id. at 578–79, 585.Show More because “who in their right mind would want to live in fear of criminal prosecution” and “how would they justify imposing that fear on others? . . . Perhaps the politics of spleen, in reality, is nothing more than a coping mechanism—a way of making the best of a terrible situation.”51 51.Harcourt, supra note 39, at 548–49.Show More If the politics of spleen is also fundamentally unstable in the context of police killings of, and violence inflicted upon, Black people, then much of the discussions about protecting Black lives through law will center on a civil rights framework.

Because liberal reform has given us some of the rights toward inclusion in the U.S. political experience and imagination, demands and goals of the activity galvanized by the Movement for Black Lives will not all be extra-institutional.52 52.Akbar, supra note 32, at 358. (noting that the Movement for Black Lives has protested inequality in the law while also calling for special prosecutors, civilian review boards, and police indictments in response to police killings of Black people).Show More While some organizers are calling for police abolition, prison abolition, or both, there is not a widespread call for abolishing courts. Or at least there is not such a call yet. Several reforms and goals will be within institutions and especially within the courts.53 53.Challenges and demands made from outside the institutional logic would have accomplished little because Blacks, as the subordinate “other,” were already perceived as being outside the mainstream. The struggle of Blacks, like that of all subordinated groups, is a struggle for inclusion, an attempt to manipulate elements of the dominant ideology to transform the experience of domination. It is a struggle to create a new status quo through the ideological and political tools that are available.Crenshaw, Race, supra note 2, at 1386; see alsoMichael D. White, Henry F. Fradella, Weston J. Morrow & Doug Mellom, Federal Civil Litigation as an Instrument of Police Reform: A Natural Experiment Exploring the Effects of the Floyd Ruling on Stop-and-Frisk Activities in New York City, 14 Ohio St. J. Crim. L. 9, 35–46 (2016) (discussing how “federal courts are often called upon” to address discriminatory stop-and-frisk police practices against Black people); Paul Burstein, Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity, 96 Am. J. Soc. 1201, 1204 (1991) (“It is, in fact, impossible to understand the American struggle for equal opportunity without focusing on the courts and on activities intended to influence judicial decisions.”).Show More

I admit the possible futility in ever attempting to use “the master’s tools” to “dismantle the master’s house.”54 54.SeeAudre Lorde, The Master’s Tools Will Never Dismantle the Master’s House, in Sister Outsider 110 (1984).Show More But generations of lawyers and legal scholars have engaged in litigation and legal scholarship in attempts to prevent the continued or further subjugation of Black people and others, so it hardly seems outside of expectation to attempt to prevent civil procedural rules and doctrine from being deployed to maintain or further subjugate marginalized people.

Moreover, the law itself is not “the master’s tools.” Civil procedure only becomes “the master’s tools” if we allow procedural doctrine, rules, and mechanisms to be deployed in a way that reinforces white supremacy, misogyny, homophobia, ableism, bigotry, etc. Activist, poet, and social and feminist theorist Audre Lorde questioned and answered, “What does it mean when the tools of a racist patriarchy are used to examine the fruits of that same patriarchy? It means that only the most narrow perimeters of change are possible and allowable.”55 55.See id. at 110–11.Show More In this statement, Lorde was not disavowing every use of any existing social structure or institution. Instead, Lorde was saying that a conference on feminist theory that did not include “significant input from poor women, Black and Third World women, and lesbians” was “sad, in a country where racism, sexism, and homophobia are inseparable.”56 56.See id. at 110.Show More That the conference planners deployed “the tools of a racist patriarchy”—racism, classism, and homophobia—when they put together discussions on feminist theory guaranteed that they would not be moving toward genuine change.57 57.See id. at 110–12.Show More Attempting to use the law and civil procedure to bring about equity and social transformation for Black people and other marginalized communities is not using “the master’s tools”; it’s struggling against them.58 58.See id. at 112 (discussing learning “how to make common cause with those others identified as outside the structures in order to define and seek a world in which we can all flourish” as part of a way to “bring about genuine change”).Show More To wage these fights (particularly litigation to hold police accountable),59 59.See Sinnar, supra note 8.Show More we need to develop an understanding of the relationship between racial subordination and civil procedure. If that understanding shows that civil procedure, portions of it, or the entirety of the U.S. federal court system is intractably reinforcing white supremacy (or any other type of group subordination), then perhaps there should be calls to abolish those portions of procedure (or the entire court system) along with ideas of what rules, doctrines, or types of structures we should have instead.

A. Potential Reasons for the Underdevelopment of the Discussion

There is less of a comprehensive theoretical description of the mutually constitutive and reinforcing relationship between civil procedure and racial subjugation or white supremacy than exists in some other areas.60 60.For civil procedure, see Roy Brooks, Critical Procedure (1998) (applying a criticalist theory approach to investigate the subordination of “outsider” groups like people of color and women in civil procedure). For corporations, see Richard R.W. Brooks, Incorporating Race, 106 Colum. L. Rev.2023 (2006) (discussing the implications of recent court decisions ruling that corporations possess racial identities “as a matter of law”). For criminal procedure, see Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 967–68 (2002); Tracey Maclin, “Black and Blue Encounters”—Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev. 243, 250 (1991); Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333, 392 (1998). For antidiscrimination and constitutional law, see T. Alexander Aleinikoff, The Constitution in Context: The Continuing Significance of Racism, 63 U. Colo. L. Rev. 325, 326 (1992); Kimberlé Williams Crenshaw, Race, supra note 2, at 1335 (1988); Eric Schnapper, Perpetuation of Past Discrimination, 96 Harv. L. Rev. 828, 831 (1983); Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049, 1050 (1978). For evidence law, see Jasmine B. Gonzales Rose, Toward a Critical Race Theory of Evidence, 101 Minn. L. Rev.2243 (2017) (explaining how evidence law and practice disadvantage people of color). For tax, see Andre L. Smith, Tax Law and Racial Economic Justice: Black Tax 1 (2015) (discussing the role of tax law in redistributing wealth from Black to white persons); Critical Tax Theory: An Introduction (Anthony C. Infanti & Bridget J. Crawford, eds., 2009) (revealing how facially “neutral” tax laws contribute to racial subordination); David Brennen, Race and Equality Across the Law School Curriculum: The Law of Tax Exemption, 54 J. Legal Educ. 336–37 (2004); Beverly I. Moran & William Whitford, A Black Critique of the Internal Revenue Code, 1996 Wis. L. Rev. 751 (1996) (arguing that the tax code systematically favors white over Black persons); Dorothy A. Brown, Race, Class, and Gender Essentialism in Tax Literature: The Joint Return, 54 Wash. & Lee L. Rev. 1469, 1471 (1997). For property, see Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1714 (1993). For election law and voting rights, see Lani Guinier, Groups, Representation, and Race-Conscious Districting: A Case of the Emperor’s Clothes, 71 Tex. L. Rev. 1589, 1641–42 (1993); Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 Harv. L. Rev. 1663, 1670 (2001).For examples specific to teaching, see Dorothy A. Brown, Critical Race Theory: Cases, Materials, and Problems (3rd ed. 2013); Kevin R. Johnson, Integrating Racial Justice into the Civil Procedure Survey Course, 54 J. Legal Educ. 242 (2004); Taunya Lovell Banks, Teaching Laws with Flaws: Adopting a Pluralistic Approach to Torts, 57 Mo. L. Rev.443 (1992).Show More Critical Race Theory (CRT) might be underdeveloped in civil procedure because it could seem to be the most technical, objective legal discourse, an area of “perspectivelessness.”61 61.It would seem that someone could easily assume that procedural rules embody the most technical, objective legal discourse and that no “particular perspective in legal analysis” and “no specific cultural, political, or class characteristics” have any relevance. Kimberlé Williams Crenshaw, Foreword: Toward a Race-Conscious Pedagogy in Legal Education, 11 Nat’l Black Law J. 1, 2–3 (1989), (defining “perspectivelessness” as the dominant mode of white, middle class beliefs).Show More One could easily assume that “no specific cultural, political, or class characteristics” have any relevance for procedure and that procedural arguments and decisions come from no “particular perspective in legal analysis.”62 62.Id. at 2.Show More It might seem that discussions of racial justice would fall largely or exclusively within the domain of constitutional law, criminal law, or criminal procedure. Additionally, proceduralists might be less likely to realize the importance of racial subordination in procedure.

Perhaps in part due to the absence of a comprehensive scholarly theoretical account of racial implications of procedure, most civil procedure classes might not discuss the relationship between racial subordination and civil procedure. Scholars might be less likely to recognize and build upon the roles of race and identity in procedure if those topics haven’t been a part of their procedural discussions beginning at least in law school.

CRT in civil procedure might be underdeveloped because many (white) scholars and professors may only realize, or think that they should discuss, the importance of racial subordination in procedure if they’ve found what I refer to as a “Magical Negro”63 63.See Matthew W. Hughey, Cinethetic Racism: White Redemption and Black Stereotypes in “Magical Negro” Films, 56 Soc. Probs. 543, 544 (2009).Show More case, casebook, or scholarly topic. The Magical Negro is a term popularized by film director Spike Lee64 64.Andrea Freeman, Unmothering Black Women: Formula Feeding as an Incident of Slavery, 69 Hastings L.J. 1545, 1589 (2018); Susan Gonzalez, Director Spike Lee Slams ‘Same Old’ Black Stereotypes in Today’s Films, 29 Yale Bulletin, Mar. 2, 2001, http://archives.news.yale.edu/v29.n21/story3.html [https://perma.cc/Y2GD-8WMH].Show More that describes a stereotypical, supporting Black movie character “who, through their special insight or mystical powers, aids the white main character in his or her character development.”65 65.I. Bennett Capers, Afrofuturism, Critical Race Theory, and Policing in the Year 2044, 94 N.Y.U. L. Rev. 1, 12–13 n.56 (2019) (citing Cerise L. Glenn & Landra J. Cunningham, The Power of Black Magic: The Magical Negro and White Salvation in Film, 40 J. Black Stud. 135, 135 (2009)).Show More The Magical Negro’s powers “are used to transform disheveled, uncultured, lost, or broken white characters into competent, successful, and content people within the context of the American myth of redemption and salvation.”66 66.DeShayla M. Strachan, The Triple Threat: The Black, Female Attorney, 11 S.J. Pol’y & Just. 112, 119 (2017); see also Osamudia R. James, Valuing Identity, 102 Minn. L. Rev. 127, 148 n.98 (2017).Show More In much the same way of the Hollywood stereotype, the race-relevant case, casebook, or topic might only be good enough to play, at best, a supporting role, to all of the white-perspective or seemingly neutral cases if the race-relevant case is perfect or “saintly” and the material would serve the “sole purpose” of enriching the white cases around it.67 67.Freeman, supra note 64, at 1589.Show More

Even if this comparison may be somewhat extreme, civil procedure scholars don’t seem to set anywhere nearly as high of a standard for non-race relevant (or non-marginalized group relevant) cases, casebooks, or topics. We are always supposed to look for and to discuss fairness, efficiency, and other ostensibly identity-neutral concepts seen as central to procedure, but some procedural scholars might only consider the role of race and racial subordination within procedure if someone presents them with the “Magical Negro” case, casebook, or topic. Such absurdly high expectations for cases or scholarly projects that prompt thought about racial subordination could guarantee that some professors who think of themselves as supportive of racial equality, and as against racial subordination, might never engage race-relevant materials in their scholarship, classes, or litigation.

Some scholars may hesitate to explore race (or other aspects of identity) and subordination within procedure unless a perfect opportunity presents itself—either the perfect “race” scholarship project, the perfect case, or the perfect casebook. For teaching, there are numerous civil procedure cases,68 68.See, e.g., Ashcroft v. Iqbal, 556 U.S. 662 (2009) (establishing a plausibility standard for pleadings in a case involving a Muslim, Pakistani litigant alleging top government officials were liable for discriminatory treatment and abuse in prison); Lassiter v. Dept. of Soc. Servs., 452 U.S. 18 (1981) (finding that the due process clause did not require the state to appoint an attorney for indigent parents in danger of losing their parental rights in a case involving an indigent, Black mother); Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) (holding that the party asserting summary judgment has the burden of showing a lack of factual controversy where a lunch counter had won on summary judgment after turning a teacher and Black students away and having them arrested); Scott v. Harris, 550 U.S. 372 (2007) (holding that a police officer did not violate the Fourth Amendment by deliberately ramming his car into the car of a motorist suspected of speeding); Hansberry v. Lee, 311 U.S. 32 (1940) (holding that res judicata may not bind plaintiffs who had no opportunity to be represented in earlier actions in a case involving racially restrictive covenants that barred Black persons from owning or leasing land); Martin v. Wilks, 490 U.S. 755 (1989) (allowing white firefighters to challenge consent decrees meant to ensure that Black people would be hired as firefighters in Birmingham, Alabama); Swanson v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010) (holding that a Black homeowner’s complaint alleging Fair Housing Act violation met the plausibility pleading standards articulated by Iqbal).Show More doctrines,69 69.For example, due process, the right to counsel, pleading standards and motions to dismiss, peremptory challenges, and class actions.Show More casebooks,70 70.For example, Stephen N. Subrin, Martha L. Minow, Mark S. Brodin, Thomas O. Main & Alexandra Lahav, Civil Procedure: Doctrine, Practice, and Context 1188 (5th ed. 2016), which includes a significant case file (that is integrated in problems and discussions throughout the book) for Warner v. City of New York, a class action challenging an allegedly racially discriminatory policing stop-and-frisk policy that is based on Floyd v. City of New York (Floyd III), 861 F. Supp. 2d 274 (S.D.N.Y. 2012).Show More and other materials71 71.See, e.g., Kevin M. Clermont, ed., Civil Procedure Stories (2d ed. 2008) (providing a deeper understanding of significant civil procedure cases, including the social and factual backgrounds).Show More discussing race.72 72.See Johnson, supra note 60 at 242 (2004).Show More When presented with materials to use that are relevant to race and racial justice, some professors require that any race-relevant material meet standards far beyond that which they require for any other class material. As examples, some professors would be happy to teach materials that involve race in civil procedure if there were a single race-relevant case that they could use to teach every section of the syllabus. Others would only want to engage with racial subordination in the classroom if there were an accompanying novel specifically about the case to assign the class. And others still would only teach or think about race in civil procedure if the relevant material were integrated in their preferred casebook (which doesn’t include the material). Civil procedure professors who want to engage with cases and doctrine that relate to racial injustice should stop this pretense of a search for the mythical “Magical Negro” case, casebook, or scholarly project. Our jobs as scholars and teachers include learning, teaching, and building scholarly projects around different complicated ideas and concepts. If we have put in the time, or sought out resources, to learn about law and economics or any other type of framework and we incorporate that into our classrooms or scholarship, then we could and should do the same with race, racism, and racial subordination. If we aren’t thinking, teaching, or writing about how civil procedure affects Black people and other marginalized groups, we are likely cultivating generations of lawyers, scholars, legal instructors, and judges who accept and promote the dominant white hegemonic view of procedure as neutral and we are marginalizing students who know better.

B. Why Now?

Some may wonder if there is less of a need to fight against the subjugation of marginalized groups now that Donald Trump is no longer in office. But the threat of racial subordination does not end solely based on a Democrat (in the current time, President Joe Biden) or someone other than Donald Trump having won the 2020 presidential election. While Donald Trump serves as a lightning rod or focal point in the current public resurgence of white supremacy and movements to strip marginalized groups of rights, privileges, and benefits,73 73.See, e.g., Kevin Roose, What Is QAnon, the Viral Pro-Trump Conspiracy Theory?, N.Y. Times (Oct. 19, 2020), https://www.nytimes.com/article/what-is-qanon.html [https://perma.cc/4V69-GYXM]; Russell Berman, Trump Fails the QAnon Test, The Atlantic (Oct. 15, 2020), https://www.theatlantic.com/politics/archive/2020/10/trump-qanon-denounce/616751/ [https://perma.cc/56J7-Q9PG]; Alex Kaplan, Trump has Repeatedly Amplified QAnon Twitter Accounts. The FBI Has Linked the Conspiracy Theory to Domestic Terror, Media Matters (Jan. 11, 2021, 4:30 PM), https://www.mediamatters.org/twitter/fbi-calls-qanon-domestic-terror-threat-trump-has-amplified-qanon-supporters-twitter-more-20 [https://perma.cc/8CY6-VV2N]; Sarah McCammon, From Debate Stage, Trump Declines to Denounce White Supremacy, NPR (Sept. 30, 2020, 12:37 AM), https://www.npr.org/2020/09/30/918483794/from-debate-stage-trump-declines-to-denounce-white-supremacy [https://perma.cc/7DDU-GGJ5]; Matt Pearce, Q&A: What Is President Trump’s relationship with far-right and white supremacist groups?, L.A. Times (Sept. 30, 2020, 7:42 PM), https://www.latimes.com/politics/story/2020-09-30/la-na-pol-2020-trump-white-supremacy [https://perma.cc/9E88-AW92]; Sarah Mizes-Tan, Experts Warn The Threat of Violence From Far-Right Groups Can Impact Racial Progress, CapRadio (Oct. 27, 2020), https://www.capradio.org/articles/2020/10/27/experts-warn-the-threat-of-violence-from-far-right-groups-can-impact-racial-progress/ [https://perma.cc/G3KC-VL57].Show More the potential attempt to retrench civil rights and maintain marginalization of various communities does not necessarily depend on Trump being President, there being a Republican president, or Republicans having control of Congress. As President, Trump issued several executive orders,74 74.See, e.g., Exec. Order No. 13769, 82 Fed. Reg. 8977 (January 27, 2017) (“Protecting the Nation From Foreign Terrorist Entry Into the United States.”) (enacting what was dubbed a “Muslim Ban”; Exec. Order No. 13780, 82 Fed. Reg. 13209 (March 6, 2017) (“Protecting the Nation From Foreign Terrorist Entry Into the United States.”) (functioning practically as another “Muslim Ban”); Exec. Order No. 13798, 82 Fed. Reg. 21675 (May 4, 2017) (“Promoting Free Speech and Religious Liberty.”) (potentially giving religious organizations a greater ability to discriminate against women and members of the LGBT community); Exec. Order No. 13950, 85 Fed. Reg. 60683 (September 22, 2020) (“Combating Race and Sex Stereotyping.”) (preventing discussions of critical race theory, white privilege, and systemic racism and sexism in some diversity trainings).Show More rules/regulations,75 75.See, e.g., Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs, 85 Fed. Reg. 44811 (proposed July 24, 2020) (allowing shelters to declare the gender of people staying at sex-segregated shelters and allowing or encouraging discrimination against and endangerment of trans women and men); Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority 85 Fed. Reg. 37160 (June 19, 2020) (changing definitions within the Affordable Care Act’s nondiscrimination provision to remove the definition of “on the basis of sex” in order to no longer include, and protect against discrimination on the basis of, gender identity or sexual orientation); Adoption and Foster Care Analysis and Reporting System, 85 Fed. Reg. 28410 (proposed May 12, 2020) (to be codified at 45 C.F.R. Pt. 1355) (eliminating collection of sexual orientation date on foster youth/adoptive parents); Student Assistance General Provisions, The Secretary’s Recognition of Accrediting Agencies, The Secretary’s Recognition Procedures for State Agencies 84 Fed. Reg. 58834 (November 1, 2019) (preventing HHS from enforcing, and planning to repeal, regulations prohibiting discrimination based on gender identity and sexual orientation in all HHS grant programs).Show More and other policies76 76.See, e.g., Memorandum for the Secretary of Commerce, Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census, 85 Fed. Reg. 44679 (July 21, 2020) (instructing Commerce Secretary to remove immigrants without legal status from the count for congressional apportionment); Notice, Designating Aliens for Expedited Removal 84 Fed. Reg. 35409 (July 23, 2019) (expanding the scope of expedited removal of undocumented immigrants); Memorandum for the Secretary of Defense and the Secretary of Homeland Security, 82 Fed. Reg. 41319 (Aug. 25, 2017) (banning transgender individuals from serving in the military); Office of Management and Budget Memorandum M-20-37, Ending Employee Trainings that Use Divisive Propaganda to Undermine the Principle of Fair and Equal Treatment for All (Sept. 28, 2020); Memorandum M-20-34, Training in the Federal Government (Sept. 4, 2020) (instructing agencies “to begin to identify all contracts or other agency spending related to any training on ‘critical race theory,’ ‘white privilege,’ or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil” and “begin to identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions.”).Show More that likely would never have been issued by a president who was a Democrat or a different or more moderate Republican, but the power to be gained or solidified through a renewed white supremacist silent covenant likely would and will remain.77 77.For as much as it seems that Donald Trump has changed something about the character of this country, the truth is he hasn’t. What is terrible about Trump is also terrible about the United States. Everything we’ve seen in the last four years — the nativism, the racism, the corruption, the wanton exploitation of the weak and unconcealed contempt for the vulnerable — is as much a part of the American story as our highest ideals and aspirations.Jamelle Bouie, Don’t Fool Yourself. Trump Is Not an Aberration, N.Y. Times (Oct. 30, 2020), https://www.nytimes.com/2020/10/30/opinion/trump-presidents-history.html:[https://perma.cc/4ZD8-Z9EL].According to Professor Derrick Bell’s concept of involuntary sacrifice:To settle potentially costly differences between two opposing groups of whites, a compromise is effected that depends on the involuntary sacrifice of black rights or interests. Even less recognized, these compromises (actually silent covenants) not only harm blacks but also disadvantage large groups of whites, including those who support the arrangements. Examples of this involuntary racial-sacrifice phenomenon abound and continue. A few of the more important are: the slavery understandings, the Constitution, universal white male suffrage, the Dred Scott v. Sandford case, the Hayes-Tilden compromise, and the southern disenfranchisement compromise.Derrick Bell, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform 29 (2005). See also Pedro, supra note 37 (“The involuntary sacrifice comes at a time when white people are divided and need to be reunited across class or other lines, so they reunite by taking something away from Black people or other marginalized groups. Given current high levels of polarization, it seems that we are currently in such a time.” (internal citations omitted)).Show More Additionally, the perceived threat to whiteness of a soon to be majority people of color country and society and the ideal privileges that do, or in some minds should, accompany whiteness may drive intensified action now.78 78.Angela Onwuachi-Willig, Policing the Boundaries of Whiteness: The Tragedy of Being “Out of Place” from Emmett Till to Trayvon Martin, 102 Iowa L. Rev. 1113, 1154–56, 1168–70 (2017).Show More

Conclusion

Some may believe that civil procedural standards operate in a neutral, identity-free zone and that judges don’t care about litigants’ identities, or their positions within the sociopolitical hierarchy, when deciding procedural issues. But judges are not oblivious to racial identity or its proxies in procedural decisions any more than they are in substantive contexts. Even the perception of, or the attempt to be, oblivious to identity could be another way to allow harmful assumptions to thrive.

Interaction with police cuts across socioeconomic differences within the Black community. We are still at risk of being murdered in extralegal ways. An important step in actualizing some of the goals to protect Black lives is to understand, and work to undo, the ways in which civil procedural doctrine and mechanisms have been deployed to reinforce racial subordination (and the subjugation of other marginalized groups).

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