All posts by MuniCourts

TikTok law threatening a ban if the app isn’t sold raises First Amendment concerns

by Anupam Chander, Georgetown University and Gautam Hans, Cornell University

TikTok users worry about losing their social media platform, but First Amendment rights are on the line, too. AP Photo/Ted Shaffrey

TikTok, the short-video company with Chinese roots, did the most American thing possible on May 7, 2024: It sued the U.S. government, in the person of Attorney General Merrick Garland, in federal court. The suit claims the federal law that took effect on April 24, 2024, banning TikTok unless it sells itself violates the U.S. Constitution.

The law names TikTok and its parent company, ByteDance Ltd., specifically. It also applies to other applications and websites reaching more than a million monthly users that allow people to share information and that have ownership of 20% or more from China, Russia, Iran or North Korea. If the president determines that such applications or websites “present a significant threat to the national security,” then those apps and websites, too, must either be sold or banned from the U.S.

TikTok’s suit says that the law violates the First Amendment by failing to provide evidence of the national security threat posed by the app and for failing to seek a less restrictive remedy. Despite legislators’ claims to the contrary, the law forcing the divestiture of TikTok – the Protecting Americans from Foreign Adversary Controlled Applications Act – implicates First Amendment interests. In our view, it does so in ways that ripple beyond this specific case.

As a company incorporated in the United States that provides an online publishing platform, TikTok has a right protected by the First Amendment to select what messages – in this case, user videos – it chooses to publish.

A ban appears to us, scholars who study law and technology, to be a massive prior restraint, which is generally barred by U.S. courts. Prior restraint is action by the government to prevent speech, typically some form of publication, before it occurs.

The First Amendment limits what the government can do to censor speech.

Speech in the crosshairs

The law’s backers say that it is not a ban – all TikTok has to do is sell itself. These supporters describe the bill as a divestiture, a purely economic regulation that they say should insulate it from First Amendment challenge. After the sale, users could happily keep on using TikTok, not caring who owns the company. But the law seems to us an attempt to control speech by mandating a change in ownership.

Changing the speech content on the app is the express goal of some of the law’s backers. The principal author of the bill, former U.S. Rep. Mike Gallagher, who stepped down from office in April to join a venture capital firm partly backed by Microsoft, explained to The New York Times that he was principally concerned about the potential for the Chinese Communist Party to spread propaganda on the app. The Times and The Wall Street Journal have reported that Congress passed this bill in part because of unsubstantiated accusations that TikTok was unfairly promoting one side in the Israel-Hamas war.

Imagine if the government told Jeff Bezos that he had to sell The Washington Post because it was worried that he might push a particular agenda using his control of the newspaper. Or to use a digital analogy, what if the government told Elon Musk that he had to sell X, formerly Twitter, because it didn’t like his content moderation of legal speech? Those scenarios clearly have a connection to First Amendment protections.

Ownership matters

Transferring TikTok’s ownership from one company to another matters greatly for the purposes of First Amendment analysis.

Supreme Court Justice Elena Kagan observed during oral arguments in a case unrelated to TikTok’s ownership that ownership can make a difference in an app. She noted that the sale of Twitter to Elon Musk changed the character of the app. Kagan said, “Twitter users one day woke up and found themselves to be X users and the content rules had changed and their feeds changed, and all of a sudden they were getting a different online newspaper, so to speak, in a metaphorical sense every morning.”

Indeed, The Washington Post found a rightward tilt after Twitter changed hands.

By forcing the sale of TikTok to an entity without ties to the Chinese Communist Party, Congress’ intent with the law is to change the nature of the platform. That kind of government action implicates the core concerns that the First Amendment was designed to protect against: government interference in the speech of private parties.

U.S. Rep. Raja Krishnamoorthi, co-sponsor of the House bill on TikTok, pointed to another instance where the U.S. government ordered a Chinese company to sell a U.S. app. In 2019, the Committee on Foreign Investment in the United States ordered the new Chinese owners of Grindr to sell the dating app, which the Chinese owners did the following year. In that case, the foreign owners could not assert First Amendment rights in the United States, given that they were outside the U.S., and thus no court considered this issue.

TikTok is claiming First Amendment protection against the law forcing its sale or ban.

National security claims

The government hasn’t disclosed to the public the national security concerns cited in the TikTok law. While such concerns, if accurate, might warrant some kind of intervention, some Americans are likely to decline to take claims of national security urgency on good faith. To address skepticism of secret government power, particularly when it involves speech rights, the government arguably needs to present its claims.

U.S. Sens. Richard Blumenthal and Marsha Blackburn, both of whom supported the TikTok law and have seen the government’s secret evidence, called for the declassification of that information. We believe that’s a vital step for the public to properly consider the government’s claim that a ban is warranted in this instance. In any case, the courts will ultimately weigh the secret evidence in determining whether the government’s national security concerns justified this intrusion upon speech.

What seems likely to happen, absent judicial invalidation or legislative repeal of the law, is a world in which TikTok cannot effectively operate in the United States in a year’s time, with mobile app stores unable to push out updates to the software and Oracle Corp. unable to continue hosting the app and its U.S. user data on its servers. TikTok could go dark on Jan. 19, 2025, in the United States.The Conversation


Republished with permission under license from The Conversation.

In some states that say they elect judges, governors choose them instead

by Bryna Godar, University of Wisconsin-Madison and Harry Isaiah Black, University of Wisconsin-Madison

Minnesota has elections for Supreme Court justices, who serve in this building, but the governor appoints almost every one of them instead. Dennis Macdonald/Photodisc/Getty Images

State supreme court races have become pivotal in current legal battles over issues including abortion, elections, education, the environment and LGBTQ rights. With more than 80 state supreme court seats up for election this year in 33 states, voters have the potential to shape the future of their states for years to come.

That is, if they actually get to choose who joins the court.

Our research shows that in two states with judicial elections – Georgia and Minnesota – nearly every state supreme court justice steps down midterm, allowing the governor to appoint a successor instead of the state holding an open election for a new justice. This practice can at times place the governor at odds with the voters. It is also an incentive for governors, justices and other state officials to manipulate the process of judicial selection for partisan gain.

Election or governor’s choice?

The mechanics of selecting state supreme court justices vary throughout the country.

In the founding era, all states used gubernatorial or legislative appointments to select justices.

Elected judiciaries, including in Georgia and Minnesota, largely came about in the 1800s in response to concerns about appointed judges serving the interests of the governors and legislators who appointed them instead of those of the people. Later innovations included the use of nominating commissions that recruit and vet candidates and retention elections in which voters are asked to vote “yes” or “no” in an uncontested election on whether a judge should remain in office.

Today, 21 states initially select supreme court justices through popular elections. Another 26 states select justices through appointments, all with some form of check on the appointment power – either by means of a nominating commission, a confirmation vote by another elected body, or both.

New Mexico uses a hybrid system in which the governor appoints justices who then run in partisan elections, while South Carolina and Virginia select justices via legislative elections.

Georgia’s and Minnesota’s constitutions provide for nonpartisan elections to select and retain justices. Yet in practice, justices in both states have long been selected primarily through appointment by the governor.

Since 1980, for instance, all but three of the 25 justices to join the Georgia Supreme Court were appointed rather than elected, as were all but one of the 30 justices to join the Minnesota Supreme Court. Eight of Georgia’s nine current justices were appointed, and all seven of Minnesota’s current justices were appointed.

Continuing this tradition, two Minnesota justices this year are stepping down – one voluntarily, the other due to mandatory retirement. That allows Democratic-Farmer-Labor Gov. Tim Walz to appoint their replacements. Walz’s appointees first face elections in 2026.

Once appointed, they stay

Although appointees in Minnesota and Georgia face elections for subsequent terms, in practice, they stay until they choose to leave or face mandatory retirement. No incumbent Minnesota justice has lost an election since 1946, and no incumbent Georgia justice has lost an election in the court’s nearly 180-year history.

This ability of appointees to prevail in elections is a key factor in the states’ high rates of appointments. In contrast, in states like Ohio where incumbents lose more frequently, or in the two states where appointees cannot run for subsequent terms – Louisiana and Arkansas – more justices reach the bench via elections.

In addition to appointee win rates, many complex and interrelated factors influence the rate of appointments in states with judicial elections, none of which fully explains the practice in Georgia or Minnesota.

Are these appointments a problem?

As noted, many other states initially select their justices through appointments, and some scholars and policymakers argue that appointments are a better judicial selection method than elections.

But the practice can place the governor at odds with voters. For example, in 1992, Alan Page overwhelmingly won election to the Minnesota Supreme Court, making history as the first Black justice. Yet his win came only after two governors opposed his candidacy and sought to cancel elections that would have featured Page. Page successfully overcame the second governor’s effort and became the only justice since 1967 to be elected to the state’s high court.

Another concern is that, unlike other states that require selection through appointment, both Georgia and Minnesota lack explicit checks on the governor’s interim appointment power. Neither state requires a confirmation vote for appointees. And while several governors in each state have convened nominating commissions, they are not required to appoint someone the commission recommends.

Furthermore, as scholar Stephen Ware has written, the use of a nominating commission “all or mostly appointed by the governor hardly serves as a check on the governor.”

In reality, a similar concern is present even in some states that do have explicit limits on the governor’s appointment power. In Florida, for example, the governor has consolidated power over the state’s nominating commission, reducing its effectiveness as a check.

But it is notable that today no state has intentionally adopted a system of wholly unchecked gubernatorial appointment, like the de facto systems Georgia and Minnesota have implemented. This raises the question of whether Minnesota and Georgia voters would have adopted this system in their respective constitutions had they been asked.

Such unconstrained power can also contribute to partisan gamesmanship. In 2020, Republican-appointed Justice Keith Blackwell resigned from the Georgia Supreme Court just before the end of his term, allowing Republican Gov. Brian Kemp to appoint his successor. The Republican secretary of state then canceled the already-scheduled election for Blackwell’s seat, leading one commentator to describe these events as a “scheme to keep Blackwell’s seat in the GOP’s hands.”

As state supreme courts have the last word on an increasing number of high-profile disputes, this practice of substituting elections with appointments by a governor is increasingly consequential. With heightened spending on governors’ races aimed at influencing appointments to all levels of state courts, it is unclear whether other states will follow Georgia’s and Minnesota’s lead in moving to a de facto appointment system or, conversely, if they will maintain a greater role for the voice of the people.The Conversation


Republished with permission under license from The Conversation

To reduce Black-on-Black crime, two criminal justice experts explain why offering monthly stipends to people at risk makes sense

EDITORIAL NOTE:

by Randall Hill

Much of the so-called Black-on-Black crime is directly related to centuries of institutionalized racism and racist policy that still persists today! Prior to the Supreme Court Decision of Brown v. Board of Education and Civil Rights legislation that resulted from the Civil Rights Movement, racism was overt and racists were direct. However, since racism is now technically illegal, it is practiced more covertly. 

Covert racism is disguised and subtle, rather than public or obvious. Concealed in the fabric of society, covert racism discriminates against individuals through often evasive or seemingly passive methods. Covert, racially biased forms of discrimination are often hidden or rationalized with an explanation that society is more willing to accept. These racial biases cause a variety of problems that work to empower the suppressors while diminishing the rights and powers of the oppressed. It creates major obsticles which make if nearly impossible for some to escape generations of poverty. One example is how public education is funded based on property taxes. Well off communities tend to have better schools because more tax money is invested, however, students in poor communities often get trapped in underfunded and usually underperforming schools. Covert racism can't be easily proved or disproved and it can't be criminalize or deem unconstitutional and usually fall outside the bounds of the law. In fact, victims of covert racism often feels uneasy, excluded, ignored, silenced, rejected, marginalized, or exploited without necessarily knowing why. 

The term Black on Black Crime is a form of covert racism. People commit crimes where they live, whom do you suppose is committing crimes in China or Russia? Racialized terms can be misleading. Since the United States is for the most part segregated, crime in black communities is most often commited by black people, for example, (90% of black murder victims are killed by black perpetrators) vs. White on White Crime (83% of white murder victims are killed by white perpetrators). However, with that said, because of the horrible legacy of racism, which includes psycological damage, homicide is the leading cause of death among young Black men.

Racist individuals and groups didn't simply fade away because civil rights legislation and Supreme Court decisions made racial discrimination illegal, they changed their strategies. Unfortunately, every major institution including banking/finance, education, government, health care, media, medicine, and most glaringly law enforcement have elements of covert racism that negatively impact African-Americans and other oppressed groups. In 2006, the FBI Reported how white supremacist had inflitrated law enforcement. Ten years later, in 2016, the FBI still could not determine whether racial bias in policing was an epidemic, even though common sense indicates it is. We can easily assume white supremacist have infiltrated each of society's major institutions. Therefore, I am often cautious about the covert intentions of so-called solutions, but I must admit that idea mentioned in the article below seems like it would have a positive impact.


MAIN ARTICLE

by Thaddeus L. Johnson, Georgia State University and Natasha N. Johnson, Georgia State University

President Joe Biden greets police chiefs from across the country at the White House on Feb. 28, 2024. Chip Somodevilla/Getty Image

After a historic spike in homicides in 2020, murder rates in most U.S. cities appear to be returning to pre-pandemic levels. This drop has sparked some public attention, as demonstrated during a meeting of police chiefs in February 2024 at the White House.

During the meeting, President Joe Biden lauded investments made in law enforcement and community anti-violence initiatives during his administration. In 2023, Biden said, the U.S. “had one of the lowest rates of all violent crime in more than 50 years.”

But the most striking fact about homicide in the U.S. has been largely overlooked during such meetings – Black Americans are murdered at nearly eight times the rate of white Americans.

Young Black men in inner cities are disproportionately affected. They are both the primary victims and perpetrators of gun assaults and homicides.

This grave reality does not mean Black people are inherently violent. Instead, it largely reflects their disproportionate experience of systemic barriers such as poverty and limited access to quality education, good jobs and affordable housing – all factors that research shows contribute to neighborhood violence.

Making matters worse are the high rates of illegal gun possession among young men in urban areas. This behavior is often driven by reasons beyond criminal intent and include distrust of the legal system and the perceived need for self-protection.

More people walking around with weapons raises the risks for minor disputes escalating into deadly encounters. Studies revealing a connection between increased gun carrying and a rise in gun-related fatalities highlight the dangers of ready access to guns.

Limits of tough-on-crime policies

To be clear, keeping Americans safe requires arresting and locking up dangerous offenders. But the problem of street violence transcends punishment strategies that emphasize more police, more enforcement of petty crimes and, ultimately, more incarcerations.

Such traditional, tough-on-crime responses fail to address deeper social issues and unwritten rules like the “street code” and the elusive American dream dictating daily life in many inner cities.

This street code discourages police cooperation and glorifies guns and violence as ways to resolve conflicts and gain respect. At the same time, the code encourages intimidation and swift retaliation against perceived threats or insults.

A van from a coroner's office is seen leaving the scene of a fatal shooting.
An Alameda County Coroner’s Bureau van leaves the scene of a fatal shooting by police officers in West Oakland, Calif., on April 17, 2024. Jane Tyska/Digital First Media/East Bay Times via Getty Images

For many people in underserved communities, generational poverty and limited opportunities for upward mobility make crime a viable alternative to a system that seems rigged against them. When people are presented with few legitimate economic prospects, studies show that some turn to crimes such as drug-dealing and theft.

Despite being classified as nonviolent offenses, those involved frequently use violence to establish dominance or settle disagreements.

As scholars of criminal justice – one of us is also a former police officer of 10 years – we have found that one way to reduce crime and its harmful effects on communities is to develop strategies for at-risk individuals that offer a range of mental health and other professional services, including a monthly stipend.

It is no coincidence that young Black males, who are most at risk of gun violence, also have the lowest chance of escaping poverty.

According to the U.S. Bureau of Labor Statistics, 54% of Black men born in the poorest households end up in the lowest earnings bracket between the ages of 28 to 35, compared with 22% of white men, 29% of white women and 34% of Black women.

Such grim prospects, along with the relatively small group of offenders driving community violence, highlight the importance of targeted, holistic interventions.

Cash incentives

There is one approach that cities can consider – cash allowances for young Black men at greatest risk of committing gun violence.

Community-based initiatives like Advance Peace, a nonprofit agency focused on anti-gun violence, are addressing the economic pressures behind street violence and demonstrate the potential of providing people with guaranteed payments each month.

Three Black men are sitting in chairs during a meeting to discuss reducing gun violence.
Advance Peace members gather for a meeting in Sacramento, Calif., on Oct. 26, 2018. x

Launched in Richmond, California, in 2009, Advance Peace receives its funding from city contracts, federal grants and private donations.

Its programs offer participants as much as US$1,000 monthly for up to nine months. This stipend is conditional on meeting goals intended to steer them away from crime and violence, such as completing educational courses or finding jobs.

To address underlying emotional and behavioral issues, participants are also connected with round-the-clock mentorship by staff counselors for at least 18 months. Other services include cognitive behavioral therapy to help manage aggressive and impulsive tendencies associated with violence.

In addition, gang rivals are paired together during sponsored trips to foster dialogue and humanize one another.

In California cities implementing Advance Peace, such as Richmond, Sacramento and Stockton, shootings decreased from 2018 to 2021, and the overwhelming majority of participants have avoided both gun violence and new arrests.

Research on these California cities shows that neighborhoods with Advance Peace programs saw a 5% to 52% decrease in the number of victims of gun violence in 2021 compared with 2018.

Black men under 35 also were involved in 15% to 42% fewer shootings across the three cities.

Solutions that address root causes

Opponents of the monthly stipend, including former Sacramento County Sheriff Scott Jones, have criticized the idea of paying people to obey the law as “cash for criminals.” They contend that this approach suggests compliance requires monetary incentives rather than personal accountability. While understandable, we believe these criticisms are misguided.

The objective is not to pay off potential offenders but rather to stabilize tumultuous lives and open avenues for personal and professional growth. It is challenging to develop these initiatives without stigmatizing recipients or creating dependency. But the harsh truth is that we either pay now or pay later.

Besides the loss of life and the trauma caused by gun violence, its massive economic burden extends beyond victims and their families. Recent estimates reveal that the financial toll of gun violence in the U.S. amounts to a staggering $557 billion annually, surpassing the gross domestic products of countries such as South Africa and Denmark.

These costs include immediate and long-term medical bills, legal expenses and lost earnings from victims’ death or disability.

To this point, another analysis found the potential shootings prevented by Advance Peace programs saved cities $67 million to $268 million in associated costs in 2022. But direct payments to participants offer only temporary relief.

To effectively break the cycle of violence, comprehensive efforts are needed to improve access to quality education, jobs, housing, health care and community development in inner cities. Initiatives that address community violence without tackling its underlying causes is akin to treating symptoms while ignoring the root causes of a disease.

Strategically investing in equal opportunities for upward mobility can create a society in which young Black men are less likely to turn to guns for empowerment and self-preservation. We view this investment as a small price to pay for the promise of safer cities.The Conversation


Republished with permission under license from The Conversation.

What the Supreme Court is doing right in considering Trump’s immunity case

by Claire B. Wofford, College of Charleston

There was a lot of press attention paid to the Trump immunity hearing at the Supreme Court building on April 25, 2024. Mandel NGAN / AFP/Getty Images

Following the nearly three-hour oral argument about presidential immunity in the Supreme Court on April 25, 2024, many commentators were aghast. The general theme, among legal and political experts alike, was a hand-over-the-mouth, how-dare-they assessment of the mostly conservative justices’ questioning of the attorneys who appeared before them in the case known as Trump v. United States.

Rather than a laser-focused, deep dive into the details of Trump’s attempt to subvert the 2020 election, virtually all of the nine justices instead raised larger questions, peppered with hypotheticals – hello again, Seal Team Six! – about the reach of executive power, the intent of the nation’s founders and the best way to promote a stable democracy.

Justice Brett Kavanaugh’s “I’m not focused on the here and now of this case” and Justice Neil Gorsuch’s “We are writing a rule for the ages” drew particular fire.

The headline and subheadline on the New York Times analysis by Supreme Court reporter Adam Liptak complained that the court had taken “Trump’s immunity arguments in unexpected direction” with “very little about the President’s conduct.” And the story itself fumed that the justices had responded to Trump’s claim that he should not face charges as a “weighty and difficult question.”

Slate’s Amicus podcast decried the court for failing to focus on the “narrow question” the case presented, instead going “off the rails” and “bouncing all over the map” with various legal arguments. A guest on NPR’s 1A program lamented that the court had “injected new questions” into the oral argument to “slow-walk” the case and prevent Trump from facing trial before the election.

But here’s what the pundits seem to have forgotten: What happened that day in the court should have surprised no one, especially those constitutional scholars like me familiar with Supreme Court procedure.

A man in a dark suit and red tie emerging from a building with a police officer near him.
Donald Trump’s attorneys told the Supreme Court that the actions of a president should be immune from criminal prosecution. Curtis Means-Pool/Getty Images

Five words ‘change everything’

Trump’s case stemmed from his prosecution by Special Counsel Jack Smith for his alleged attempts to overturn the 2020 presidential election. Trump claimed he, as president, was immune from prosecution, and he took his case to the Supreme Court.

When parties appeal their case to the court, they must tell the justices what specific legal question or questions they want the justices to answer. As a colleague and I have explored in a recent academic journal article, the court generally accepts what is called the “Questions Presented” as given, agreeing to hear a case without making any adjustments to its legal framing.

Sometimes, however, the court will alter the legal question in some way. Why it does this is an issue that scholars like myself are just beginning to explore. And because it is that question – not the one the litigant initially asked – that frames the legal analysis, the justices can exert real control over both the case itself and the development of the law.

Trump v. United States is a classic example. When attorneys for the former president filed their request with the court, the question presented by them was “Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts.”

When it granted the petition in late February 2024, the court changed this language to “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

Five of those additional words – “if so to what extent” – changed everything. They sent a clear-as-day signal that the court would move well beyond the simple yes-or-no of whether Trump could be prosecuted.

Nine men and women seated in two rows, wearing black robes.
The full Supreme Court, with nine justices, heard oral arguments in the immunity case. Fred Schilling, Collection of the Supreme Court of the United States

The court doing its job

With their reformulation of the question, the justices would instead be determining how, when and for what acts any president could ever be held criminally responsible.

That is a much larger inquiry, one that necessarily involves formulating a legal test to draw a line between what is constitutionally permissible and what is not. That the justices spent oral argument trying do exactly that is not a problem, much less an outrage: It’s just the court, the highest appellate court in the land, doing its job.

The scope of the argument, the expansiveness of the coming opinions and the time suck for the justices to write them and the possible vanishing of Trump’s prosecution are not at all shocking. The court signaled it would address the broader question months ago when it took the case; the time to fault the court for making the case about more than just Donald Trump was then, not now.

But perhaps commentators’ response to the oral argument can be a good lesson. Americans are told to take Trump at his word, expecting his second term to contain all the extremes he gleefully says it will.

When the Supreme Court indicates what legal question it will answer, the smart response is to do the same thing – pay attention and believe. This may not make the ultimate outcome any less distasteful to many, but at least it won’t be quite as disturbing.The Conversation


Republished with permission under license from The Conversation .

What I teach Harvard Law School students about opening arguments

by Ronald S. Sullivan Jr., Harvard University

Former U.S. President Donald Trump appears in Manhattan Criminal Court on April 19, 2024. Sarah Yenesel – Pool/Getty Images

Though Hollywood movies about courtroom dramas often glamorize the closing arguments given by lawyers, in reality the opening statement is likely the most important single event of a trial.

Lawyers in the hush money case involving former President Donald Trump and alleged payments to porn star Stormy Daniels presented their opening statements on April 22, 2024, in New York.

In this case, Manhattan District Attorney Alvin Bragg charged the former president with 34 felony counts of falsifying business records as part of an effort to influence voters’ knowledge about him before the 2016 presidential election. Trump entered a plea of not guilty.

Academic psychologists tell us that between 65% and 75% of jurors make up their minds about a case after the opening statement. What’s even more incredible is that 85% of those jurors maintain the position they formed after the opening statement once all evidence is received and the trial is closed.

More often than not, it is too late by closing arguments to win over the jury.

This phenomenon comes as no surprise to veteran trial lawyers. They are aware of two theories that define how jurors – indeed, people generally – process information: the concepts of primacy and recency

These ideas suggest that jurors best remember what they hear first and what they hear last. It is vitally important, then, for lawyers on both sides to start their opening arguments with a bang.

The psychology of jurors

I have taught a course on trial advocacy for the past two decades at the Harvard Law School. Part of my curriculum is to teach budding lawyers how to deliver effective opening statements.

If the idea is to win over the jury by the end of the lawyer’s opening statement, how, in practice, is that done?

Trial lawyers steeped in the research know that juries respond to a well-considered theory of the case, punctuated by a pithy theme.

A theory of the case is a brief, three- to five-sentence statement akin to what is known as an “elevator pitch.” The theme is a short, pithy summary of the theory of the case that is easy for a juror to remember. Often the theme is the first sentence out of the lawyer’s mouth, followed by a fuller description of the theory.

Indeed, in my class at Harvard, the very first skill I teach is how to develop theories and themes. In order to effectively convey a theory in a case, many lawyers start their opening statements with “This is a case about …” and then fill in the specific details.

For example, the prosecution in a murder case may start their opening like this:

“Members of the jury, this is a case about the death of an innocent young woman, witnessed by concerned citizens, who all identify the only person with a motive to kill her, the defendant.”

A Black man wears a blue suit and stands at a New York County lectern next to a poster that says 'People v. Donald J. Trump' and in front of an American flag.
Manhattan District Attorney Alvin Bragg speaks during a news conference about former President Donald Trump’s arraignment on April 4, 2023. Kena Betancur/Getty Images

In stark contrast, the defense might start with something that is the complete opposite of the prosecution’s opening statement:

“Members of the jury, this is a case about a jealous ex-lover who shot a woman in cold blood, fled the country and left my client to take the fall.”

In each example, the jury is given enough information to frame the evidence they will hear throughout the trial.

After both sides have finished their openings, data shows that more than two-thirds of the jury will have come to a decision that will persist through the remainder of the trial.

Why do juries tend to behave this way?

Research also has taught trial lawyers that if you connect the jury with your theory of a case, at the beginning of the trial, jurors will process all the rest of the evidence – whether potentially helpful to the prosecution or to the defense – through the prism of that theory.

The importance of opening statements cannot be overstated. They set the tone and offer the jury a framework to understand the upcoming months of testimony they are about to hear.The Conversation


Republished with permission under license from The Conversation.

Supreme Court to consider whether local governments can make it a crime to sleep outside if no inside space is available

by Clare Pastore, University of Southern California

A homeless person near an elementary school in Fruitdale Park in Grants Pass, Ore. AP Photo/Jenny Kane

 

On April 22, 2024, the Supreme Court will hear a case that could radically change how cities respond to the growing problem of homelessness. It also could significantly worsen the nation’s racial justice gap.

City of Grants Pass v. Johnson began when a small city in Oregon with just one homeless shelter began enforcing a local anti-camping law against people sleeping in public using a blanket or any other rudimentary protection against the elements – even if they had nowhere else to go. The court must now decide whether it is unconstitutional to punish homeless people for doing in public things that are necessary to survive, such as sleeping, when there is no option to do these acts in private.

The case raises important questions about the scope of the Constitution’s cruel and unusual punishment clause and the limits of cities’ power to punish involuntary conduct. As a specialist in poverty law, civil rights and access to justice who has litigated many cases in this area, I know that homelessness in the U.S. is a function of poverty, not criminality, and is strongly correlated with racial inequality. In my view, if cities get a green light to continue criminalizing inevitable behaviors, these disparities can only increase.

Western states strongly criticize the 9th U.S. Circuit Court of Appeals rulings against criminalizing homelessness, but other states argue that local governments have better options.

A national crisis

Homelessness in the United States is a massive problem. The number of people without homes held steady during the COVID-19 pandemic largely because of eviction moratoriums and the temporary availability of expanded public benefits, but it has risen sharply since 2022.

The latest data from the federal government’s annual “Point-in-Time” homeless count found 653,000 people homeless across the U.S. on a single night in 2023 – a 12% increase from 2022 and the highest number reported since the counts began in 2007. Of the people counted, nearly 300,000 were living on the street or in parks, rather than indoors in temporary shelters or safe havens.

The survey also shows that all homelessness is not the same. About 22% of homeless people are deemed chronically homeless, meaning they are without shelter for a year or more, while most experience a temporary or episodic lack of shelter. A 2021 study found that 53% of homeless shelter residents and nearly half of unsheltered people were employed.

Scholars and policymakers have spent many years analyzing the causes of homelessness. They include wage stagnation, shrinking public benefits, inadequate treatment for mental illness and addiction, and the politics of siting affordable housing. There is little disagreement, however, that the simple mismatch between the vast need for affordable housing and the limited supply is a central cause.

Homelessness and race

Like poverty, homelessness in the U.S. is not race-neutral. Black Americans represent 13% of the population but comprise 21% of people living in poverty and 37% of people experiencing homelessness.

The largest percentage increase in homelessness for any racial group in 2023 was 40% among Asians and Asian-Americans. The largest numerical increase was among people identifying as what the Department of Housing and Urban Development calls “Latin(a)(o)(x),” with nearly 40,000 more homeless in 2023 than in 2022.

This disproportionality means that criminalizing homelessness likewise has a disparate racial effect. A 2020 study in Austin, Texas, showed that Black homeless people were 10 times more likely than white homeless people to be cited by police for camping on public property.

According to a recent report from the Southern Poverty Law Center, 1 in 8 Atlanta city jail bookings in 2022 were of people experiencing homelessness. The criminalization of homelessness has roots in historical use of vagrancy and loitering laws against Black Americans dating back to the 19th century.

 

Crackdowns on the homeless

Increasing homelessness, especially its visible manifestations such as tent encampments, has frustrated city residents, businesses and policymakers across the U.S. and led to an increase in crackdowns against homeless people. Reports from the National Homelessness Law Center in 2019 and 2021 have tallied hundreds of laws restricting camping, sleeping, sitting, lying down, panhandling and loitering in public.

Just since 2022, Texas, Tennessee and Missouri have passed statewide bans on camping on public property, with Texas making it a felony.

Georgia has enacted a law requiring localities to enforce public camping bans. Even some cities led by Democrats, including San Diego and Portland, Oregon, have established tougher anti-camping regulations.

Under presidents Barack Obama and Joe Biden, the federal government has asserted that criminal sanctions are rarely useful. Instead it has emphasized alternatives, such as supportive services, specialty courts and coordinated systems of care, along with increased housing supply.

Some cities have had striking success with these measures. But not all communities are on board.

People stand on a sidewalk holding signs reading 'Parks Are for Kids' and 'Drug Free Parks'
Members of a local ‘park watch’ group demonstrate against homeless encampments in Grants Pass, Ore., March 20, 2024. AP Photo/Jenny Kane

The Grants Pass case

Grants Pass v. Johnson culminates years of struggle over how far cities can go to discourage homeless people from residing within their borders, and whether or when criminal sanctions for actions such as sleeping in public are permissible.

In a 2019 case, Martin v. City of Boise, the 9th U.S. Circuit Court of Appeals held that the Eighth Amendment’s cruel and unusual punishment clause forbids criminalizing sleeping in public when a person has no private place to sleep. The decision was based on a 1962 Supreme Court case, Robinson v. California, which held that it is unconstitutional to criminalize being a drug addict. Robinson and a subsequent case, Powell v. Texas, have come to stand for distinguishing between status, which cannot constitutionally be punished, and conduct, which can.

In the Grants Pass ruling, the 9th Circuit went one step further than it had in the Boise case and held that the Constitution also banned criminalizing the act of public sleeping with rudimentary protection from the elements. The decision was contentious: Judges disagreed over whether the anti-camping ban regulated conduct or the status of being homeless, which inevitably leads to sleeping outside when there is no alternative.

Grants Pass is urging the Supreme Court to abandon the Robinson precedent and its progeny as “moribund and misguided.” It argues that the Eighth Amendment forbids only certain cruel methods of punishment, which do not include fines and jail terms.

The homeless plaintiffs argue that they do not challenge reasonable regulation of the time and place of outdoor sleeping, the city’s ability to limit the size or location of homeless groups or encampments, or the legitimacy of punishing those who insist on remaining in public when shelter is available. But they argue that broad anti-camping laws inflict overly harsh punishments for “wholly innocent, universally unavoidable behavior” and that punishing people for “simply existing outside without access to shelter” will not reduce this activity.

They contend that criminalizing sleeping in public when there is no alternative violates the Eighth Amendment in three ways: by criminalizing the “status” of homelessness, by imposing disproportionate punishment on innocent and unavoidable acts, and by imposing punishment without a legitimate deterrent or rehabilitative goal.

‘Housing First’ is a strategy for reducing homelessness that has contributed to progress in cities including Houston, Salt Lake City and Columbus, Ohio.

The case has attracted dozens of amicus briefs, including from numerous cities and counties that support Grants Pass. They assert that the 9th Circuit’s recent decisions have worsened homelessness, stymied law enforcement and left jurisdictions without clear guidelines for preserving public order and safety.

On the other hand, the states of Maryland, Illinois, Massachusetts, Minnesota, New York and Vermont filed a brief urging the Court to uphold the 9th Circuit’s ruling, arguing that local governments retain ample tools to address homelessness and that criminalizing tends to worsen rather than alleviate the problem.

A brief from 165 former local elected officials agrees. Service providers, social scientists and professional organizations such as the American Psychiatric Association filed briefs noting that criminalization increases barriers to education, employment and eventual recovery; erodes community trust; and can force people back into abusive situations. They also highlight research showing the effectiveness of a nonpunitive “housing first” model.

A race to the bottom?

The current Supreme Court is generally extremely sympathetic to law enforcement, but even its conservative members may balk at allowing a city to criminalize inevitable acts by homeless people. Doing so could spark competition among cities to create the most punitive regime in hopes of effectively banishing homeless residents.

Still, at least some justices may sympathize with the city’s argument that upholding the 9th Circuit’s ruling “logically would immunize numerous other purportedly involuntary acts from prosecution, such as drug use by addicts, public intoxication by alcoholics, and possession of child pornography by pedophiles.” However the court rules, this case will likely affect the health and welfare of thousands of people experiencing homelessness in cities across the U.S.The Conversation


Republished with permission under license from The Conversation.

Has the media learned anything since the O.J. Simpson trial?

EDITORIAL NOTE
by Randall Hill

Why OJ was Probably Innocent

I've often wondered if OJ Simpson would have been arrested, charged with murder, and what the reaction would have been if his murdered ex-wife had been a black woman. In the early 1990s, the former professional football player and Hollywood actor was earning $55,000 per month and had a net worth of nearly $11 million, according to court records.

I was born in 1965, the same year as Ron Goldman, and within my lifetime, interacial marriage was still illegal in some parts of the country until the Loving v. Virginia U.S. Supreme Court decision in 1967. Centuries of systemic racism has been codefied in law, policy, and custom which results in disastrous outcomes for African-American criminal defendants and civil litigants even today. Yesterday's racism didn't disappear, it simply evolved.

Too often in our society, when a black male celebrity is involved with a white woman the results are disastrous. From Jack Johnson to the lastest example Jonothan Majors, famous black men have had their lives tuned upside down because they dared date white women. Rape or attempted rape was the second most common accusation used as pretexts for lynching black people who violated Jim Crow etiquette or engaged in economic competition with white people. Even the bombing and destruction of  the Greenwood District in Tulsa, OK and the murder of Emmett Till were based on false allegations by white women.

Even though Ron Goldman's family had had ties to drugs and money laundering, he was never considered the target. Ron Goldman was stabbed and wounded many times according to the autopsy report. Goldman sustained dozens of defensive wound on his body, mostly found on his hands, face, and upper body indicating he fought with his attacker for what could have been 5 – 10 minutes. The killer most certainly would have been covered in blood.

The prosecution of OJ Simpson involved perjured testimony, questionable DNA and circumstancial evidence. Los Angeles police detective, Mark Fuhrmann was a chief witness during the trial. Fuhrmann denied ever using the word "nigger" on the witness stand. Simpson’s defense team produced audiotapes of Fuhrman using the word "nigger" multiple times and Fuhrman later pleaded no contest to committing perjury. Prior to the Simpson case, Mark Furhman took part in taped interviews with a screenwriter in which he used the word "nigger" 41 times. At one point he said, “all these niggers in L.A. City government … should be lined up against a wall and fucking shot.” Read the court transcript for yourself.

The jury did not believe OJ had enough time to commit the murders, base upon the evidence, the jury determined OJ only had 8 minutes to murder Nicole Brown and Ron Goldmann, travel back to his estate, get cleaned up and ready for his trip.  Additionally in those 8 minutes, OJ would have needed to clean the bloody Bronco and remove all traces of blood from the drain pipes that investigators checked for any traces of blood. 

The only cut or bruise was on OJ's middle finger, which he said he cut in Chicago. Six or seven different witnesses testified they saw OJ at the airport and he didn't have a cut on his finger. Oj was shaking hands,signing autographs, and showing off his hall of fame ring.

OJ Simpson was acquitted of murder because the prosecution failed to prove their case against him. The legal defense team believed evidence was planted by police. Jurors are allowed to used their background, education, life experience, common knowledge and common sense when evaluating evidence. A bloody nose I had one day during the trial became a piviotal moment for me. I rushed to the my bathroom for tissue. After my nose stopped bleeding, I realized blood was several places between the living room and bathroom. I then thought about the tremendous amounts of blood killing two people with a knife would generate. If OJ was the killer, vast amounts of blood should have been found.

When I also consider the fact that the Los Angele Police Department was known to have racist officer and a large number of officers were proven to have planted evidence during the Rampart Scandal just a few years after OJ's acquital. Over 70 officers within the Rampart Division were accused of being corrupt. Rampart officers planted evidence and committed perjury which resulted in 106 prior convictions to be overturned and more than 140 civil lawsuits against the city of Los Angeles, costing the city an estimated $125 million in settlements.

I still believe the OJ Simpson jury reached the right verdict!


by Frankie Bailey, University at Albany, State University of New York

O.J. Simpson shows the jury a pair of gloves, similar to those found near the crime scene, during his trial in Los Angeles in 1995. POO/AFP via Getty Images

With the death of O.J. Simpson, I can’t help but wonder whether the media has learned any lessons from its coverage of his trial, in which the ex-football star was acquitted of murdering his ex-wife and her friend.

In many ways, the “trial of the century” brought out some of the media’s worst impulses.

As criminologist Gregg Barak explained, the O.J. Simpson case was a true “spectacle” – essentially a nine-month live news broadcast. At the same time, because of Simpson’s celebrity, the case was being followed as popular culture.

Of course, crimes have always attracted morbid interest, generating media attention and inspiring true-crime narratives.

But since the late 20th century, this has occurred more often – sometimes even before a trial has ended. The lines between news and entertainment have become increasingly blurred – what criminologist Ray Surette calls “infotainment” – with race, class and the quest for ratings influencing which crimes get covered and how they get portrayed.

Trial by media

Whenever I teach the O.J. Simpson trial in my criminal justice classes, I bring up a late-19th century murder case involving a white, upperclass woman named Lizzie Borden.

Both Simpson and Borden were accused of double murder – and both of their trials became a media circus.

In August 1892, Andrew Borden, a wealthy businessman, and Abby, his second wife, were hacked to death in their home in Fall River, Massachusetts. Accused of killing her father and hated stepmother, their 32-year-old daughter, Lizzie, became the subject of exhaustive media coverage.

A century before O.J. Simpson hired what the media called a legal “dream team,” Borden had a star-studded defense team that included a former governor and the Borden family lawyer. Like the Simpson case, the legal strategies of the prosecutor and the Borden defense team were subjected to much media scrutiny.

Most of the evidence against Borden was circumstantial; in the end, she was acquitted by an all-male jury that may have found it difficult to believe a respectable spinster could commit such a horrific crime.

Yet, Borden was never able to escape the stigma of having been accused of murder. Upon being set free, she found herself ostracized by former friends. For years, newspaper coverage documented Borden’s life after her acquittal. Since her death, the countless books, articles, a made-for-TV movie – even a recent TV series about Borden’s life after the trial – demonstrate the staying power of the high-profile, 19th-century trial.

Like Borden, Simpson was able to use his class and wealth to his advantage. But he also was excoriated during and after his trial.

Celebrity crimes make good TV

Of course, there was no television in Borden’s time.

On Oct. 3, 1995, an estimated 150 million Americans tuned in to hear the jury’s verdict in the O.J. Simpson trial. It marked the culmination of 16 months of wall-to-wall, prime-time television coverage.

On the evening of June 12, 1994, Nicole Brown Simpson and her friend, Ronald Lyle Goldman, were slashed to death outside Nicole Simpson’s upscale condo in Los Angeles, California. After the police pursued O.J. Simpson’s white Bronco in a low-speed car chase that mesmerized TV viewers, O.J. Simpson was arrested and charged with the murders.

For the broadcast networks and their fledgling cable news counterparts, it was a recipe for high drama – and high ratings.

 

With a captivated nation glued to their TVs, radios and newspapers, media outlets rolled out a slate of trial experts to offer daily commentary. This template would become the norm for future celebrity trials, as a cottage industry of legal pundits would appear on the airwaves to comment on cases ranging from Tom Brady’s “Deflategate” lawsuit to the indictments of former President Donald Trump since he left office in 2021.

Post-trial research has found that audience perceptions of guilt or innocence in the Simpson trial were shaped by the amount – and type – of media consumed. The more someone became sucked into the daily happenings of the trial, the more likely they were to become emotionally invested in O.J.’s life. Developing what’s known as a parasocial bond, they became more likely to believe in his innocence.

How the media colors crime and race

When the jury declared Simpson innocent, reactions largely fell along racial lines. Throngs of white Americans responded with shock, dismay – even anger – while crowds of Black Americans responded with elation.

Polls and surveys later found people’s reactions to the verdict reflected not only their opinion about Simpson’s guilt or innocence, but also their beliefs about race and the fairness of the country’s criminal justice system.

Television screen featuring a Black man's face accompanied by text reading 'O.J. Simpson: The Trial.'
O.J. Simpson’s trial became must-see TV. Barbara Alper/Getty Images

Scholars today also realize that the media, when constructing narratives about crime and justice, will often fall back on tropes and stereotypes.

Shaped and reinforced by the media, these constructs influence how offenders and victims are perceived. For example, one 2004 study revealed that newspaper coverage tends to depersonalize female victims of violent crimes. And a 2018 study found that the race of a mass shooter will color how the media covers the crime and the accused, with the violent acts of white criminals depicted as unfortunate anomalies of circumstance and mental illness.

Simpson’s own relationship to race was always complicated.

In a 1970 New York Times article titled “For the Black Athlete, New Advances,” reporter Robert Lipsyte quoted Simpson describing how he had overheard a racial slur while attending a wedding with mostly white guests. Lipsyte wrote that race relations would have to improve dramatically for Simpson “to be able to transcend blackness in his public image.”

By the 1990s, Simpson seemed to have done just that. A middle-aged O.J. had achieved celebrity status, and he appeared to have transcended this blackness by distancing himself from poor and working-class black people, while gaining the acceptance of white people who saw him as a celebrity immune to the trappings of racial stereotypes.

Despite some incidents of domestic violence, Simpson had been able to maintain this genial reputation – until he was accused of the murder of his white ex-wife and her friend.

Simpson’s fall from grace was symbolized by a controversial 1994 Time magazine cover photo, which some claim was altered to make Simpson’s skin appear darker.

By 2014, the gap between how Black people and white people viewed Simpson’s verdict had narrowed: Black people were far more likely to believe that Simpson was guilty.

However, Simpson’s fragile public image was a reminder of the limits of his ability to transcend race. And there’s no indication that Black Americans have any more confidence in the U.S. criminal justice system today than they did in 1995.

This is an updated version of an article originally published on Feb. 3, 2016.The Conversation


Republished with permission under license from The Conversation.

Why rural white Americans’ resentment is a threat to democracy

by Thomas F. Schaller, University of Maryland, Baltimore County

Some white Americans are showing signs of disagreeing with key democratic principles. Carol Yepes/Moment via Getty Images

Rural white voters have long enjoyed outsize power in American politics. They have inflated voting power in the U.S. Senate, the U.S. House and the Electoral College.

Although there is no uniform definition of “rural,” and even federal agencies cannot agree on a single standard, roughly 20% of Americans live in rural communities, according to the Census Bureau’s definition. And three-quarters of them – or approximately 15% of the U.S. population – are white.

Since the rise of Jacksonian democracy and the expansion of the vote to all white men in the late 1820s, however, the support of rural white people has been vital to the governing power of almost every major party coalition. Which is why my co-author Paul Waldman and I describe rural white people as America’s “essential minority” in our book “White Rural Rage: The Threat to American Democracy.”

As a political scientist, I’ve written or co-written five books addressing issues of racial politics at some level of government or part of the country. My latest, “White Rural Rage,” seeks to understand the complex intersections of race, place and opinion and the implications they hold for our political system.

The unfortunate fact is that polls suggest many rural white people’s commitment to the American political system is eroding. Even when they are not members of militant organizations, rural white people, as a group, now pose four interconnected threats to the fate of the United States’ pluralist, constitutional democracy.

Although these do not apply to all rural white people, nor exclusively to them in general, when compared with other Americans, rural white people:

  • Express the most racist, least inclusive, most xenophobic, most anti-LGBTQ+ and most anti-immigrant sentiments.
  • Subscribe at the highest rates to conspiracy theories about QAnon, the 2020 presidential election, Barack Obama’s citizenship and COVID-19 vaccines.
  • Support a variety of antidemocratic and unconstitutional positions and exhibit strong attachments to white nationalist and white Christian nationalist movements inimical to secular, constitutional governance.
  • Are most likely to justify, if not call for, force or violence as acceptable alternatives to deliberative, peaceful democracy.

Let’s examine a few data points.

Xenophobia

In a Pew Research Center poll conducted in 2018, 46% of white rural Americans said it is important to live in a diverse community. That’s a lower proportion than urban and suburban dwellers and even nonwhite rural residents.

And in rural areas, fewer than half the people said white people have advantages Black people do not, approve of the legalization of same-sex marriage, and say immigrants make American society stronger.

In addition, Cornell researchers found that rural whites reported feeling less comfortable with gay and lesbian people than urban whites do. And 49% of rural LGBTQ+ people between the ages of 10 and 24 called their own towns “unaccepting” of LGBTQ+ people – nearly twice the rate of suburban and urban LGBTQ+ young people who said the same about their communities.

Conspiracism

Polls in 2020 and 2021 indicated that QAnon supporters are 1.5 times more likely to live in rural areas than urban ones, and 49% of rural residents – 10 points higher than the national average – believe a “deep state” undermines Trump.

Rural residents are also more likely than urban and suburban residents to believe the 2020 election was stolen from Trump, according to 2021 polling by the Public Religion Research Institute.

And people who live in rural areas are also less confident as a whole than those who live in urban areas that votes will be counted accurately and fairly in their state or across the country, according to a 2022 poll from the Bipartisan Policy Center.

In addition, by our analysis, of the 139 U.S. House members who voted to reject the certification of Joe Biden’s presidential election just hours after a violent mob of Trump supporters rampaged through the Capitol, 103 – 74% – represented either “purely rural” or “rural/suburban” districts, as categorized by Bloomberg’s CityLab project.

Antidemocratic beliefs

A scholarly analysis of multiyear data from the American National Election Studies project finds that rural citizens are “much more likely (than urban residents) to favor restrictions on the press” and to say it would be “helpful if the president could unilaterally work” without regard to Congress or the courts.

In addition, more than half of rural residents surveyed by the Public Religion Research Institute said being a Christian is important to “being truly American” – 10 percentage points more than in surburban or urban areas.

This is one of several signals that rural residents are disproportionately likely to support white Christian nationalism, an ideology that reaches beyond Christian ideas of faith and morality and into government. Its followers want the United States to base its laws on Christian values rather than maintain the centuries-old separation of church and state the founders saw as fundamental to a secular democracy.

Justification of violence

Rural residents are more likely than urban or suburban residents to say the political situation in the country is heading to a point where violence may be necessary to preserve the nation, according to polls from the Public Religion Research Institute in 2021 and the University of Chicago Institute of Politics in 2022.

Of the estimated 21 million Americans who in late 2021 said Joe Biden’s 2020 presidential win was “illegitimate,” according to the Chicago Project on Security and Threats, 30% lived in rural areas. And 27% of Americans who say Trump should be returned to office even if “by force” are rural residents. Those are minority views, but both proportions are significantly higher than the rural proportion of the overall population.

With the 2024 election fast approaching, the views of rural white people are once again of vital importance because they and the members of Congress who represent them disproportionately believe the 2020 election was stolen from Donald Trump by Joe Biden. A Pew Research Center study found 71% of rural white voters voted for Trump in 2020, so their preference in November will be key to who returns to the White House for a second term.The Conversation


Republished with permission from The Conversation under a Creative Commons license. 

Back in the day, being woke meant being smart

by Ronald E. Hall, Michigan State University

If Florida Gov. Ron DeSantis had his way, the word “woke” would be banished from public use and memory.

As he promised in Iowa in December 2023 during his failed presidential campaign, “We will fight the woke in education, we will fight the woke in the corporations, we will fight the woke in the halls of Congress. We will never, ever surrender to the woke mob.”

DeSantis’ war on “woke ideology” has resulted in the banning of an advanced placement class in African American studies and the elimination of diversity, equity, and inclusion programs in Florida’s universities and colleges.

Given the origins of the use of the word as a code among Black people, DeSantis has a nearly impossible task, despite his tireless efforts.

For Black people, the modern-day meaning of the word has little to do with school curriculum or political jargon and goes back to the days of Jim Crow and legal, often violent, racial segregation. Back then, the word was used as a warning to be aware of racial injustices in general and Southern white folks in particular.

In my view as a behavioral scientist who studies race, being woke was part of the unwritten vocabulary that Black people established to talk with each other in a way that outsiders could not understand.

Demonstrators march on Jan. 1, 1934, in Washington against the unjust trials of nine Black men falsely accused of raping two white women. Bettmann/Getty Images

 

The early days of wokeness

It’s unclear when exactly “woke” became a word of Black consciousness. Examples of its use – in various forms of the word “awake” – date back to before the Civil War in Freedom’s Journal, the nation’s first Black-owned newspaper.

In their introductory editorial on April 21, 1827, the editors wrote that their mission was to “plead our own cause.” Part of that mission was offering analysis on the state of educating enslaved Black people who were prohibited from learning how to read and write.

Because education and literacy were “of the highest importance,” the editors wrote, it was “surely time that we should awake from this lethargy of years” during enslavement.

By the turn of the 20th century, the use of versions of the word “woke” by other Black newspaper editors expanded to include the fight for Black voting rights. In a 1904 editorial in the Baltimore Afro-American, for instance, the editors urged Black people to “Wake up, wake up!” and demand full-citizenship rights.

By 1919, Black nationalist Marcus Garvey frequently used a version of the word in his speeches and newspaper, The Negro World, as a clarion call to Black people to become more socially and politically conscious: “Wake up Ethiopia! Wake up Africa!”

At around the same time, blues singers were using the word to hide protest messages in the language of love songs. On the surface, Willard “Ramblin’” Thomas laments a lost love in “Sawmill Moan”:

If I don’t go crazy, I’m sure gonna lose my mind ‘Cause I can’t sleep for dreamin’, sure can’t stay woke for cryin’

But instead of a love song, some historians have suggested that the lyrics were a veiled protest against the atrocious conditions faced by Black workers in Southern sawmills.

The song given the most credit by historians for the use of the word woke was written and performed in 1938 by Huddie Leadbetter, known as Lead Belly. He advises his listeners to “stay woke” lest they run afoul of white authority.

In an archived interview about the song “Scottsboro Boys,” Lead Belly explained how tough it was at the time for Black people in Alabama.

“It’s a hard world down there in Alabama,” Lead Belly said. “I made this little song about down there. … I advise everybody, be a little careful when they go along through there — best stay woke, keep their eyes open.”

Lead Belly explains his “stay woke” advice to Black people at the 4:30 mark.

And that’s the message that came out in the song lyrics:

“Go to Alabama and ya better watch out The landlord’ll get ya, gonna jump and shout Scottsboro Scottsboro Scottsboro boys Tell ya what it all about.”

A miscarriage of justice

On March 25, 1931, in Chattanooga, Tennessee, two white women, Victoria Price and Ruby Bates, falsely accused a group of several Black young men of rape.

Several white men dressed in uniforms and carrying shotguns walk in front of a group of Black men.
National Guard troops protect members of the Scottsboro Boys as they enter an Alabama courtroom on Jan. 1, 1932. Bettmann/GettyImages

Based on their words, the nine Black men – ages 12 to 19 years old – were immediately arrested and in less than two weeks, all were tried, convicted, and with one exception, sentenced to death.

A white woman is sitting on a chair as she answers questions.
One of the alleged victims, Victoria Price, testifies on April 4, 1933, against nine young Black men in the Scottsboro case. Bettmann/GettyImages

All the cases were appealed and eventually reached the U.S. Supreme Court. In its 1932 Powell v. Alabama decision, the court overturned the verdicts in part because prosecutors excluded potential Black jurors from serving during the trial. But instead of freedom, the cases were retried – and each of the “Scottsboro Boys” was found guilty again.

There were four more trials, seven retrials and, in 1935, two landmark Supreme Court decisions – one requiring that defendants be tried by juries of their peers and the other requiring that indigent defendants receive competent counsel.

The nine young men spent a combined total of 130 years in prison. The last was released in 1950. By 2013, all were exonerated.

How woke became a four-letter word

Over the years, the memory of the Scottsboro Boys has remained a part of Black consciousness and of staying woke. During the height of the Civil Rights Movement, Martin Luther King Jr. used a version of woke during his commencement address at Oberlin College in 1965.

“The great challenge facing every individual graduating today is to remain awake through this social revolution,” he said.

In recent times, use of the word has ebbed and flowed throughout Black culture but became popular again in 2014 during the protest marches organized by Black Lives Matter in the wake of the shooting death of Michael Brown by a police officer in Ferguson, Missouri. Two years later, a documentary on the group was called “Stay Woke: The Black Lives Matter Movement.”

A white man waves to a crowd from a stage that has the words awake and not woke in large letters in the background.
Florida Gov. Ron DeSantis speaks at a conservative political conference on Feb. 24, 2022, in Orlando, Fla. Joe Raedle/Getty Images

But for GOP lawmakers and conservative talk show pundits, such as DeSantis, “woke” is a pejorative word used to describe those who believe that systemic racism exists in America and remains at the heart of the nation’s racial shortcomings.

When asked to define the term in June 2023, DeSantis explained: “It’s a form of cultural Marxism. It’s about putting merit and achievement behind identity politics, and it’s basically a war on the truth.”

Desantis couldn’t be more wrong. The truth is that being aware of America’s racist past cannot be dictated by conservative politicians. Civic literacy requires an understanding of the social causes and consequences of human behavior – the very essence of being woke.The Conversation

Republished with permission under license from The Conversation.

The battle over right to repair is a fight over your car’s data

by Leah Chan Grinvald, University of Nevada, Las Vegas and Ofer Tur-Sinai, Ono Academic College

Cars are no longer just a means of transportation. They have become rolling hubs of data communication. Modern vehicles regularly transmit information wirelessly to their manufacturers.

However, as cars grow “smarter,” the right to repair them is under siege.

As legal scholars, we find that the question of whether you and your local mechanic can tap into your car’s data to diagnose and repair spans issues of property rights, trade secrets, cybersecurity, data privacy and consumer rights. Policymakers are forced to navigate this complex legal landscape and ideally are aiming for a balanced approach that upholds the right to repair, while also ensuring the safety and privacy of consumers.

Understanding telematics and right to repair

Until recently, repairing a car involved connecting to its standard on-board diagnostics port to retrieve diagnostic data. The ability for independent repair shops – not just those authorized by the manufacturer – to access this information was protected by a state law in Massachusetts, approved by voters on Nov. 6, 2012, and by a nationwide memorandum of understanding between major car manufacturers and the repair industry signed on Jan. 15, 2014.

However, with the rise of telematics systems, which combine computing with telecommunications, these dynamics are shifting. Unlike the standardized onboard diagnostics ports, telematics systems vary across car manufacturers. These systems are often protected by digital locks, and circumventing these locks could be considered a violation of copyright law. The telematics systems also encrypt the diagnostic data before transmitting it to the manufacturer.

This reduces the accessibility of telematics information, potentially locking out independent repair shops and jeopardizing consumer choice – a lack of choice that can lead to increased costs for consumers.

Also, these telematics systems fall outside the scope of the original Massachusetts legislation and the nationwide memorandum of understanding. Recognizing the pivotal role diagnostic data plays in vehicle maintenance and repair, 75% of Massachusetts voters approved a ballot initiative on Nov. 3, 2020, to amend the state’s repair legislation. The amendment aims to ensure that the switch to telematics does not curtail an effective right to repair vehicles.

Specifically, the new law requires manufacturers selling telematics-equipped vehicles from the 2022 model year onward to provide car owners and their chosen repair shops access to the vehicle’s mechanical data through an interoperable, standardized and open-access telematics platform. Access should also encompass the ability to relay commands to components of the vehicle, if necessary, for maintenance, diagnostics and repair. Voters in Maine overwhelmingly approved a similar measure on Nov. 7, 2023.

However, the Massachusetts law was the subject of a lawsuit in federal court shortly after voters approved it in 2020, and it was suspended until June 1, 2023.

torso of a person holding a laptop computer in front of a car with its hood raised showing the engine compartment
Repairing cars today is as much about data as it is nuts and bolts, but increasingly, carmakers are locking that data away from car owners and independent repair shops. Nenad Stojkovic/Flickr, CC BY

Safety and privacy concerns

While the amendment makes significant strides toward creating a level playing field in vehicle maintenance and repair, the National Highway Traffic Safety Administration and car manufacturers have raised concerns about the legislation.

The National Highway Traffic Safety Administration’s main concern revolves around cybersecurity vulnerabilities with potential ramifications for vehicle safety, particularly the amendment’s provision for two-way access. A hacker could potentially take control of a car’s critical systems like accelerator, brakes and steering. Consequently, the agency recommended that car manufacturers not adhere to the law.

A related argument is that Massachusetts law is preempted by federal law. This forms the basis of a lawsuit filed in November 2020 by the Alliance for Automotive Innovation against Massachusetts’ attorney general.

The manufacturers assert that abiding by the state law would inevitably put them in breach of federal statutes and regulations, such as the National Traffic and Motor Vehicle Safety Act. This lawsuit was pending as of press time, although the Massachusetts attorney general declared the law effective as of June 1, 2023.

Critics also emphasize the privacy concerns associated with open access to telematics systems. Granting third-party access could expose personal details, especially real-time location data. Advocacy groups warn that this information might be used as a tracking tool by potential abusers and others aiming to exploit people.

Recent developments

The National Highway Traffic Safety Administration and Massachusetts’ attorney general appear to have reached a consensus on alterations to the law, and the administration has dropped its recommendation that manufacturers disregard the law.

The primary adjustment would mean a telematics platform would be in compliance with the right to repair law if it were accessible within close proximity to the vehicle – for example, via Bluetooth. The National Highway Traffic Safety Administration confirmed that this would be safer and align with federal law.

However, repair advocates have criticized this change as unduly restrictive. They argue that it gives authorized car dealers an unfair advantage over independent repair shops because the manufacturers allow the dealers to access the data remotely.

A new federal bill, the REPAIR Act, was recently introduced in the House, seeking to require vehicle manufacturers to provide access to in-vehicle diagnostic data, including telematics. This bill’s first hearing occurred on Sept. 27, 2023, and the bill passed out of subcommittee on Nov. 2.

Consumer Reports is among the organizations that support right-to-repair legislation.

Who owns your car’s data?

One issue left unresolved by the legislation is the ownership of vehicle data. A vehicle generates all sorts of data as it operates, including location, diagnostic, driving behavior, and even usage patterns of in-car systems – for example, which apps you use and for how long.

In recent years, the question of data ownership has gained prominence. In 2015, Congress legislated that the data stored in event data recorders belongs to the vehicle owner. This was a significant step in acknowledging the vehicle owner’s right over specific datasets. However, the broader issue of data ownership in today’s connected cars remains unresolved.

Whether data should be subject to property rights is a matter of debate. If deemed property, it seems logical to award these rights to the vehicle owner because the vehicle creates the data while used by the owner. However, through contractual terms and digital locks, manufacturers effectively secure control over the data.

The question of ownership aside, the crux of the matter for right to repair is guaranteed access for vehicle owners to their vehicles’ data.

A way forward

While concerns surrounding the Massachusetts legislation have merit, we believe they should not overshadow the need to preserve a competitive space in the auto repair sector and preserve the right to repair. This matters not only for safeguarding consumers’ autonomy and ensuring competitive pricing, but also for minimizing environmental waste from prematurely discarded vehicles and parts.

The hope is that policymakers and the industry can strike a balance: upholding the right to repair without compromising safety and privacy. One possibility is developing tools that segregate sensitive personal information from mechanical data.

Ultimately, a successful implementation of the new law in Massachusetts may pave the way for a renewed nationwide memorandum of understanding, capturing the essence of the original memorandum of understanding and preserving the right to repair cars in the face of rapidly advancing technologies.The Conversation


Republished with permission under license from The Conversation.