Caught on Tape: Establishing the Right of Third-Party Bystanders to Secretly Record the Police

Throughout the thirty years between the televised beating of Rodney King and the videotaped murder of George Floyd, recordings of police misconduct have given a face to the perpetrators and victims of police brutality. Given the accessibility of these recordings today over social media, anyone with a smartphone can demand the nation’s attention on one of racial discrimination’s cruelest manifestations.

In spite of their utility to social movements, though, recordings of the police have occupied a legally nebulous space. Federal courts have consistently affirmed the First Amendment’s protection of individuals’ rights to publicly record the police, but they have been unclear as to whether that protection extends to secret recordings. Federal and state wiretap laws can be interpreted to make secret recordings unlawful, and courts have—until late—largely avoided deciding the question.

In December 2020, however, the First Circuit expressly held that individuals have a right to secretly record the police. Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020). In its decision, the court affirmed the value of surreptitious recordings and found that the state’s ban on producing such recordings violates individuals’ First Amendment rights. This case comment argues that courts across the country should follow the First Circuit’s model. We maintain that the production of secret recordings serves a critical First Amendment interest by providing social movements with a means to shed light on misconduct and hold power to account. Moreover, we contend that the established constitutionality of surreptitious recordings lends certainty, and therefore protection, to would-be recorders that is unavailable through other alternatives. Finally, we posit that the conventional rationales for circumscribing the right to record the police—such as preserving individuals’ right to privacy and securing public safety—cannot justify a constitutionally meaningful distinction between secret and open recordings, as the First Circuit has affirmed.

Introduction

On May 25, 2020, Darnella Frazier did an ordinary thing of extraordinary consequence—she pressed “record.”1.Joshua Nevett, George Floyd: The Personal Cost of Filming Police Brutality, BBC News (June 11, 2020), https://www.bbc.com/news/world-us-canada-52942519 [https://perma.cc/‌VC7P-C3RU].Show More Her video recording of George Floyd’s murder spread like wildfire across news and social media platforms, inspiring longstanding activists and newcomers alike to speak out against racial discrimination and police brutality.2.Audra D. S. Burch & John Eligon, Bystander Videos of George Floyd and Others Are Policing the Police, N.Y. Times (Mar. 5, 2021), https://www.nytimes.com/2020/05/26/us/‌george-floyd-minneapolis-police.html [https://perma.cc/4G2N-DVA5]. See also Eliot C. McLaughlin, How George Floyd’s Death Ignited a Racial Reckoning that Shows No Signs of Slowing Down, CNN (Aug. 9, 2020), https://www.cnn.com/2020/08/09/us/george-floyd-protests-different-why/index.html [https://perma.cc/D7UC-Y6AR] (highlighting that the protests following George Floyd’s death were unique in that they saw an influx of “myriad White faces”).Show More One study estimates that the June protests brought out as many as 26 million people to the streets, exceeding the crowds of any other single social movement in American history.3.Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Social Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/‌interactive/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/6XAT-9MJE]. The 2017 Women’s March previously held this title, which saw crowds of 3 to 5 million in marches nationwide. Id.; McLaughlin, supranote 2.Show More By leveraging the ubiquity of smart phones and the broad reach of social media networks, Darnella Frazier reaffirmed that civilian bystanders like her can play a pivotal role in the public square and shine a light on police misconduct that might otherwise go unnoticed. She showed that, to paraphrase Scott Gant, we can all be journalists now.4.Scott Gant, We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age 6 (2007).Show More

The scope of one’s right to record the police, however, has remained somewhat unclear in federal courts. Recent developments in case law have emphasized the important First Amendment interests inherent to the production of these recordings. Federal appellate courts across the country have consistently recognized the existence of a valid First Amendment right in recording the police in public spaces.5.See Fields v. City of Philadelphia, 862 F.3d 353, 355–56 (3d Cir. 2017); Turner v. Driver, 848 F.3d 678, 689 (5th Cir. 2017); ACLU of Ill. v. Alvarez, 679 F.3d 583, 595–600, 608 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).Show More However, these decisions have not defined the scope of this right, particularly so in the context of secret recordings. Some have argued that the secret recording of police officers violates state wiretap statutes and that those responsible should be criminally sanctioned.6.SeeProject Veritas Action Fund v. Rollins, 982 F.3d 813, 819–20 (1st Cir. 2020).Show More While this theory has yet to be widely considered by federal courts, there is reason to believe they may find it persuasive.7.See, e.g., Alvarez, 679 F.3d at 606–07, 607 n.13 (“The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play.”).Show More

In December 2020, however, the First Circuit concluded in Project Veritas Action Fund v. Rollins that a state may not explicitly proscribe surreptitious recordings of the police in public spaces without violating the First Amendment.8.982 F.3d at 833.Show More The case concerned a Massachusetts statute9.Mass. Gen. Laws ch. 272, § 99 (2018) (‘‘Section 99’’).Show More that prohibits the secret recording of interactions between civilians and public officials.10 10.Project Veritas, a far-right non-profit organization whose methods have sparked controversy, brought a separate challenge to Section 99 that, on appeal, was consolidated with K. Eric Martin and Rene Perez’s suit against the Suffolk County District Attorney. Martin and Perez are unaffiliated with Project Veritas. Project Veritas went beyond Martin and Perez’s requested remedy by seeking to enjoin the enforcement of this statute against the secret recording of any public official. Given the broader nature of this claim, this essay will not contest whether or not the rationales justifying the court’s decision in this case should be applied to cover all such figures. However, it is worth noting that the First Circuit rejected Project Veritas’s broader argument on the grounds that it was unripe. See Project Veritas, 982 F.3d at 817.Show More The plaintiffs were civil rights activists who wished to secretly record police-civilian interactions and promote accountability for misconduct.11 11.Brief for Plaintiff-Appellees at 1–2, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) (No. 19-1629) (submitted by K. Eric Martin and Rene Perez).Show More While both had previously openly recorded the police in the past, they had faced violent reprisals for doing so, and, consequently, argued that their personal safety required their future recordings be made secretly.12 12.Id. at 9–11.Show More Such fears are often warranted; individuals across the country—such as Andre James,13 13.Gary Man Arrested for Recording Police Officer, Now Considering Legal Action, NBC Chicago (Aug. 9, 2020), https://www.nbcchicago.com/news/local/gary-man-arrested-for-recording-police-officer-now-considering-legal-action/2319456/ [https://perma.cc/CB8J-7YBK].Show More Peter Ballance,14 14.Ray Sanchez, Growing Number of Prosecutions for Videotaping the Police, ABC News (July 16, 2010), https://abcnews.go.com/US/TheLaw/videotaping-cops-arrest/story?id=‌11179076 [https://perma.cc/E3NH-N6HJ].Show More Joe Bennett,15 15.Mayor: 3 Charged in Fraudulent Check Scheme; Internal Investigation Launched After Cops Scuffle with Man Videotaping Scene, WHAS-TV (Nov. 29, 2020), https://www.whas11.com/article/news/crime/jeffersontown-officers-arrest-man-videotaping-kentucky-investigation-3-charged-check-fraud/417-a32470a8-5810-4b5e-a095-4e1105c3d331 [https://perma.cc/BJS5-L85D].Show More Sharron Tasha Ford,16 16.Press Release, ACLU, ACLU Sues After Mother Falsely Arrested by Boynton Beach Police Officers (June 25, 2010), https://www.aclu.org/press-releases/aclu-sues-after-mother-falsely-arrested-boynton-beach-police-officers [https://perma.cc/9HU9-LB2K].Show More Gregory Rizer,17 17.Press Release, ACLU Pa., Lawsuit on Behalf of Man Arrested for Recording Police Officer Settles (Oct. 9, 2013), https://www.aclupa.org/en/press-releases/lawsuit-behalf-man-arrested-recording-police-officer-settles [https://perma.cc/7DWJ-545F].Show More and Alfredo Valentin18 18.Man Arrested for Recording Police Awarded $275,000, CBS Sacramento (Nov. 29, 2017), https://sacramento.cbslocal.com/2017/11/29/man-arrested-for-recording-police-awarded-275000/ [https://perma.cc/8YNP-3SV5].Show More—have faced physical and legal reprisals following their recording of the police.

Given the critical nature of this right, we argue that the First Circuit’s holding in Project Veritas should be adopted nationally, both in the context of express prohibitions on secret recordings and its broader application to state wiretap statutes. While the Massachusetts law is unique in that it expressly prohibits secret recordings,19 19.Mass. Gen. Laws ch. 272, § 99(C)(1) (2018).Show More other wiretap statutes across the country do so implicitly.20 20.See infraPart I.A.Show More Under federal and state law, individuals cannot legally record an interaction without the consent of at least one party, so long as the relevant party can legitimately claim a reasonable expectation of privacy in that interaction.21 21.See id.Show More In the context of police-citizen encounters, then, these wiretap statutes imply that bystanders have no legal right to surreptitiously document the public activity of law enforcement without first making their intention to record known. We contend, as the First Circuit affirmed in Project Veritas, that such blanket prohibitions are unconstitutional when applied to surreptitious recordings of police activity.

In this piece, we argue that the First Circuit’s decision is sound, that an individual’s right to secretly record the police in public spaces is protected by the First Amendment, and thus any laws outlawing this activity are unconstitutional as applied. The First Amendment protects the rights of individuals in the United States to record and report matters of interest to the public.22 22.N.Y. Times Co. v. Sullivan, 376 U.S. 254, 281–83 (1964).Show More We argue here that such a right must extend to bystander secret recordings too. This is a novel claim: Scholars have argued in favor of granting First Amendment protection to public23 23.SeeMargot E. Kaminski, Privacy and the Right to Record, 97 B.U. L. Rev. 167, 170–71 (2017); Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 339 (2011); Justin Marceau & Alan K. Chen, Free Speech and Democracy in the Video Age, 116 Colum. L. Rev. 991, 997–99 (2016); Jocelyn Simonson, Copwatching, 104 Calif. L. Rev. 391, 442 (2016); Elizabeth J. Frawley, Note, No Calling Cut: The Political Right to Record Police, 17 U. Pa. J. Const. L. 287, 298 (2014).Show More and secret24 24.See Timothy D. Rodden Jr., Note, Yes, This Phone Records Audio!: The Case for Allowing Surreptitious Citizen Recordings of Public Police Encounters, 47 Suffolk U. L. Rev. 905, 926–27 (2014); Taylor Robertson, Note, Lights, Camera, Arrest: The Stage is Set for a Federal Resolution of a Citizen’s Right to Record the Police in Public, 23 B.U. Pub. Int. L.J. 117, 137–39 (2014).Show More recordings of the police, and against the application of wiretap statutes to recordings from a policy perspective,25 25.See Mary D. Fan, Democratizing Proof: Pooling Public and Police Body-Camera Videos, 96 N.C. L. Rev. 1639, 1667–68 (2018); Rebecca G. Van Tassell, Comment, Walking a Thin Blue Line: Balancing the Citizen’s Right to Record Police Officers Against Officer Privacy, 2013 BYU L. Rev. 183, 184 (2013); Mark Brncik, Note, A Case for Non-Enforcement of Anti-Recording Laws Against Citizen Recorders, 62 Case W. Rsrv. L. Rev. 485, 515 (2011); Lisa A. Skehill, Note, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981, 1011 (2009).Show More but there has not yet been engagement with how the First Circuit’s opinion advances these arguments. We argue that laws implicitly or explicitly prohibiting the secret recording of law enforcement are unconstitutional as-applied, and that the assertions of privacy interests made by those depicted in the recordings, earnest though they may be, cannot justify imposing sanctions on those who seek to illuminate wrongful conduct that could otherwise go without rebuke.

Secret recordings of police misconduct are particularly consequential because, by recording the behavior of police officers in the line of duty without their knowledge, the broader public can gain access to and awareness of conduct that would otherwise go without scrutiny. With the information depicted in these recordings, we as a society can examine potential instances of misconduct and create a mechanism for accountability.26 26.The increased prevalence of citizen recordings shifts the balance of power between police officers and the communities they serve. See Jocelyn Simonson, Beyond Body Cameras: Defending a Robust Right to Record the Police, 104 Geo. L.J. 1559, 1568 (2016) (arguing that changing the video’s perspective transfers power and serves a valuable social purpose).Show More The documentation and public dissemination of evidence of police misconduct by bystanders will enable the public to fully reckon with the harms propagated by those in power and work to hold them to account in ways that extant checks on police misconduct do not.27 27.See, e.g., Dina Mishra, Comment, Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers’ Power, 117 Yale L.J. 1549, 1553–55 (2008) (arguing that citizen recording supplements existing checks against law enforcement abuses, such as the exclusionary rule and Section 1983 actions); Simonson, supra note 23,at 407–21 (explaining how copwatching can serve as a form of deterrence to, data collection of, and constitutional engagement with police misconduct).Show More

In Part I, we provide an overview of the Project Veritas decision and examine the current state of the law regarding a civilian’s right to record the public conduct of police officers. We then, in Part II, explain how the First Amendment interests underpinning a right to openly record should extend to cover the production of secret recordings and contend with opposing views, before briefly concluding.

I. The Right to Record

In Project Veritas Action Fund v. Rollins, the First Circuit reviewed a pre-enforcement action brought by plaintiffs K. Eric Martin and Rene Perez.28 28.982 F.3d 813, 817, 820 (1st Cir. 2020), aff’gMartin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018).Show More the First Circuit reviewed a pre-enforcement action brought by plaintiffs K. Eric Martin and Rene Perez. They had initiated this challenge under Section 1983 to enjoin the Commissioner of the Boston Police and the District Attorney for Suffolk County from enforcing “Section 99,” a Massachusetts statute that prohibits the secret recording of interactions between civilians and public officials.29 29.Mass. Gen. Laws ch. 272, § 99 (2018); Project Veritas, 982 F.3d at 817, 820.Show More The plaintiffs were civil rights activists who had secretly recorded—and wished to continue secretly recording—police-civilian interactions as a mechanism for accountability.30 30.Project Veritas, 982 F.3d at 820. Though they could not predict for the court the particular moments at which they would need to make such recordings, the plaintiffs argued that their prior experience in openly recording police officers suggested that such moments would certainly occur. Brief for Plaintiff-Appellees at 9, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) (No. 19-1629) (submitted by K. Eric Martin and Rene Perez).Show More However, given the history of active of enforcement of Section 99, Martin and Perez felt they had no safe, legal avenue forward.31 31.Project Veritas, 982 F.3d at 820.Show More

Though brought in a pre-enforcement action, the issue, according to the First Circuit, required no further factual development to address the plaintiffs’ claim on the merits.32 32.Id. at 828–29. It was not necessary for the court’s review that the plaintiffs specify the particular circumstances in which they would produce future secret recording, as their challenge was limited to the production of secret recordings in public spaces, a phrase the First Circuit had itself previously used to “describe the geographic bounds of the citizen’s right to record police officers.” Id.at 827 (citing Glik v. Cunniffe, 655 F.3d 78, 84–85 (1st Cir. 2011); Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014)).Show More Further, the court asserted that the statute’s recent history of enforcement could credibly create a fear of future prosecution in the absence of judicial intervention, and, therefore, was ripe for review.33 33.Id. at 829–30.Show More The court then found for the plaintiffs on the merits, concluding a statute that prohibits the surreptitious recording of police officers’ conduct in public spaces could not comply with the First Amendment.34 34.Id. at 830–31, 836.Show More While this decision was limited to the particular statute at issue, we argue its implications should inform courts across the country of the impermissible application of wiretap statutes against surreptitious citizen recordings of the police.

A. Background on Federal and State Wiretap Laws

In the United States, individuals generally cannot legally record a conversation without the consent of at least one party involved, when those parties have a reasonable expectation of privacy in the interaction. Federal law dictates that a recording is legal only so long as one of the individuals involved in the conversation or encounter agrees to be recorded; in other words, one party must consent to being recorded.35 35.18 U.S.C. § 2511(2)(d) (2018).Show More State laws differ as to which parties must consent in order for a recording to be legal; while most have adopted similar one-party consent laws,36 36.See, e.g., Kan. Stat. Ann. § 21-6101(a)(1) (2019).Show More a minority of states are two-party consent jurisdictions, meaning the permission of both parties is required to record.37 37.Cal. Penal Code § 632 (West 2017); Del. Code Ann. tit. 11, § 1335(a)(4) (2017); Fla. Stat. § 934.03(2)(d) (2019); Haw. Rev. Stat. Ann. § 711-1111(1)(d)–(e) (LexisNexis 2016); Md. Code Ann., Cts. & Jud. Proc. § 10-402(c)(3) (West 2019); Mich. Comp. Laws § 750.539c–d (2016); Mont. Code Ann. § 45-8-213(1)(c) (2019); N.H. Rev. Stat. Ann. § 570-A:2(I) (2017); 18 Pa. Cons. Stat. Ann. § 5704(4) (West 2020); Wash. Rev. Code § 9.73.030(1) (2019). In 2014, the Illinois Supreme Court held the state’s two-party consent statute was unconstitutional as written, as it banned the recording of conversations or situations when the parties had no reasonable expectation of privacy, thus violating the First Amendment. People v. Melongo, 6 N.E.3d 120, 127 (Ill. 2014).Show More

Of note, the legislative history of these statutes suggests that they were designed, broadly speaking, with two goals in mind: First, to provide law enforcement officials with a clearly lawful means to conduct wiretaps, often with the aim of facilitating the prosecution of organized crime, and second, to protect the privacy of citizens from the overreach of electronic surveillance.38 38.Brncik, supranote 25, at 492–93.Show More

Massachusetts state law goes further and explicitly prohibits the secret recording of non-consenting parties. Their wiretapping statute bans “the secret use of [modern electronic surveillance devices] by private individuals,” as the legislature worried their proliferation and use had placed the privacy of citizens in danger.39 39.Mass. Gen. Laws ch. 272, § 99(A) (2018) (“The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth.”). Notably, a recording is secret, according to the Supreme Judicial Court of Massachusetts, when it is made without the actual knowledge of the depicted subject, though that finding may be established by “unequivocal objective manifestations of knowledge.” Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976).Show More As interpreted by the Supreme Judicial Court of Massachusetts, a recording was made secretly if the recorded subject had no “actual knowledge of the recording,” though such knowledge may also be shown through “clear and unequivocal objective manifestations.”40 40.Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976). See also Commonwealth v. Hyde, 750 N.E.2d 963, 968 (Mass. 2001) (reaffirming this interpretation).Show More In practice, though, this statute also prevents bystanders from secretly recording what they perceive to be police misconduct in public spaces. In 2007, activist Peter Lowney was found in violation of this statute for recording an on-duty Boston University police sergeant during a protest.41 41.Sam Bayard, Massachusetts Wiretapping Law Strikes Again, Digit. Media L. Project (Dec. 12, 2007), http://www.dmlp.org/blog/2007/massachusetts-wiretapping-law-strikes-again [https://perma.cc/ADJ9-ZZ9Q].Show More When ordered by the police to stop filming, Lowney returned the device to his pocket but did not stop recording.42 42.Id.Show More He was convicted under the statute and received a suspended sentence of up to two years in jail, a $500 fine, and was made to remove the relevant video from the internet.43 43.Daily Free Press Admin, BU Protester Fined, Could Face Jail Time, Daily Free Press (Dec. 6, 2007), https://dailyfreepress.com/2007/12/06/bu-protester-fined-could-face-jail-time/ [https://perma.cc/MG7H-4H5X].Show More

Over recent years, the use of these state wiretap laws to penalize recordings of police-civilian interactions has been challenged repeatedly in federal court, most often when such recordings were made openly.44 44.See supranote 5.Show More Each federal court of appeal facing the issue has held the application of these statutes to public (i.e. non-secret) recording of police-citizen interactions is unconstitutional as a violation of the First Amendment.45 45.Id.Show More Since the First Amendment protects expressive activity, it also must protect the activity required to produce or create such expression.46 46.See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); see also Fields v. City of Philadelphia, 862 F.3d 353, 358–59 (3d Cir. 2017) (affirming that the First Amendment protects the act of “capturing inputs that may yield expression”) (quoting Brief for the Cato Institute as Amicus Curiae at 7); Kreimer, supra note 23, at 408–09 (concluding that given how, in public spaces, “pervasive image capture grants authority to a range of unofficial voices . . . [and] provides a means of holding the conduct of the powerful to account,” it must be that “the First Amendment protects the right to record images we observe as part of the right to form, reflect upon, and share our memories”).Show More The Department of Justice has also affirmed that citizens must have at least some right to record the police, as “[t]he First Amendment protects the rights of private citizens to record police officers during the public discharge of their duties.”47 47.Statement of Interest of the United States at 4, Sharp v. Baltimore City Police Dep’t, No. 1:11-cv-02888, 2012 WL 9512053 (D. Md. filed Jan. 10, 2012); see also Justin Fenton, DOJ Urges Judge to Side with Plaintiff in Baltimore Police Taping Case, Balt. Sun (Jan. 11, 2012), https://www.baltimoresun.com/news/bs-xpm-2012-01-11-bs-md-ci-aclu-doj-videotaping-20120111-story.html [https://perma.cc/7XVA-W4SW ] (describing the case).Show More And notably, the courts have affirmed that this right cannot be limited to news reporters, but must also extend to recordings made by private individuals.48 48.Glik, 655 F.3d at 83–84 (“[T]he public’s right of access to information is coextensive with that of the press.”).Show More

This should not come as a surprise. Longstanding Supreme Court precedent has recognized the existence of a First Amendment interest in criticizing public officials,49 49.See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 275 (1964) (“The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.”); Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.”).Show More and in particular, police officers.50 50.City of Houston v. Hill, 482 U.S. 451, 460–62, 467 (1987) (invalidating a city ordinance which made it illegal to interrupt an officer in the performance of his duties).Show More A necessary prerequisite to such expression is the gathering of information about these public officials “from any source by means within the law,”51 51.Glik, 655 F.3d at 82 (quoting Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978)).Show More which has been construed broadly enough to include audio and video recordings.52 52.SeeFirst Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978) (emphasizing that First Amendment protections go “beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw”).Show More Such action helps to facilitate “the free discussion of governmental affairs,”53 53.Glik, 655 F.3d at 82(quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).Show More uncover governmental abuse,54 54.Id.Show More and generally improve the government’s functioning.55 55.Id. at 83(quoting Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 8 (1986)).Show More

Further, while such forms of newsgathering criticism often emerge spontaneously, they also take organized forms. For example, Professor Jocelyn Simonson has highlighted the fifty-year history of “copwatching,” a civic practice in which “organized groups of local residents . . . patrol their neighborhoods, monitor police conduct, and create videos of what they see.”56 56.Simonson, supranote 23, at 408.Show More She argues that copwatching is a form of constitutional engagement, as it enables local neighborhoods to “challeng[e] the control that courts and police officers have in determining what is ‘reasonable’ or ‘suspicious’ with regard to the Fourth Amendment,” and to demand that law enforcement respect the dignity of those they encounter.57 57.Id. at 421.Show More

This right to record, though, is not without limit. Some scholars and advocates argue that countervailing factors—such as the privacy interests of the police officers and civilians depicted in the recordings—justify secret recordings’ restriction.58 58.See, e.g., ACLU of Ill. v. Alvarez, 679 F.3d 583, 611 (7th Cir. 2012) (Posner, J., dissenting).Show More Courts have long held that a person does not entirely forfeit their privacy when entering public spaces.59 59.See, e.g., Nader v. Gen. Motors Corp., 255 N.E.2d 765, 771 (N.Y. 1970) (clarifying that “under certain circumstances, surveillance may be so ‘overzealous’ as to render it actionable” as an invasion of one’s right to privacy).Show More In fact, as Professor Margot Kaminski has explained, statutes that regulate recording protect legitimate privacy interests, since that which an individual does not reveal to the recorder is meant to remain private and should be protected against another’s intrusions.60 60.Kaminski, supra note 23, at 171. It should be noted, though, that privacy is a notoriously difficult value to characterize, and it often depends upon the context in which it is claimed. See Daniel J. Solove, Understanding Privacy 101–70 (2008) (proposing a taxonomy of privacy interests); Julie E. Cohen, What Privacy is For, 126 Harv. L. Rev. 1904, 1907–08 (2013) (arguing that attempts to define privacy as deriving a single overarching principle are inevitably unworkable).Show More Professor Kaminski further asserts that the distribution of such recordings—such as the posting of video and audio recordings of police misconduct on social media—implicate a second, distinct privacy interest in preserving one’s dignity from harm.61 61.Kaminski, supra note 23, at 202–03. But cf. Kreimer, supra note 23, at 404 (arguing that the primary privacy harm of recording is in its public dissemination).Show More

Police officers, however, cannot claim to have as robust expectations of privacy when acting as public officials as they might when off-duty.62 62.See, e.g.,Bartnicki v. Vopper, 532 U.S. 514, 534–35 (2001) (“[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance.”).Show More Some courts have emphasized that police officers shed any expectation of privacy when they act in public spaces, particularly if the conduct at issue is easily observable by members of the public.63 63.See e.g., State v. Flora, 845 P.2d 1355, 1357 (Wash. Ct. App. 1992) (“The State urges us to adopt the view that public officers performing an official function on a public thoroughfare in the presence of a third party and within the sight and hearing of passersby enjoy a privacy interest which they may assert under the statute. We reject that view as wholly without merit.”).Show More Other courts have focused on the prominent and important nature of the police officer’s position in the community to determine that they cannot expect the same kind of privacy when on-duty as a private citizen might otherwise claim.64 64.See, e.g., Rotkiewicz v. Sadowsky, 730 N.E. 2d 282, 287 (Mass. 2000) (finding that a police officer is a public official for purposes of defamation claims because of “the broad powers vested in police officers and the great potential for abuse of those powers, as well as police officers[’] high visibility within and impact on a community.”).Show More Moreover, the Supreme Court has made clear that an individual can claim no protection under the Fourth Amendment for information consensually disclosed to a police officer.65 65.See Lopez v. United States, 373 U.S. 427, 437–39 (1963).Show More

Other scholars claim that recording officers in public might impede the execution of important police investigations. This concern becomes most salient if the officers are acting undercover, as recording them may legitimately compromise the officer’s safety.66 66.Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1219–20 (10th Cir. 2007) (highlighting the importance of protecting officer safety but nonetheless finding that the public interest in revealing officer misconduct outweighed that concern under the facts of this case).Show More In a similar vein, some fear that the threat of recording might deter members of the public from seeking assistance from or giving critically important information to the police.67 67.SeeACLU of Ill. v. Alvarez, 679 F.3d 583, 611–12 (7th Cir. 2012) (Posner, J., dissenting). Surveys show that a majority of police officers often suggest they are supportive of wearing body cameras. See Rich Morin, Kim Parker, Renee Stepler & Andrew Mercer, Behind the Badge, Pew Rsch. Ctr. 75 (Jan. 11, 2017), https://www.pewsocialtrends.org/wp-content/uploads/sites/3/2017/01/Police-Report_FINAL_web.pdf [https://perma.cc/CG6C-FTCW]. But that support does not often extend to citizen recorders, as law enforcement feel they would unduly interfere with the execution of their duties. See, e.g., Alysia Santo, Why Cops Aren’t Ready for Their Close-Up, Marshall Project (Apr. 24, 2015), https://www.themarshallproject.org/2015/04/24/why-cops-aren-t-ready-for-their-close-up [https://perma.cc/29Y3-3ZL4] (highlighting police support for a 2015 Texas state bill that would criminalize photographing on-duty police officers).Show More For situations in which recorders hamper law enforcement’s ability to maintain public safety, though, officers have the ability to impose reasonable time, place, and manner restrictions to prevent the conduct.68 68.Alvarez, 679 F.3d at 607; Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011). See alsoKelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010) (observing “even insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions”).Show More In a recent Section 1983 action, one plaintiff alleged an officer impermissibly interfered with his First Amendment right to record the police when the officer seized the plaintiff’s drone, which was flying over a car accident.69 69.Rivera v. Foley, No. 3:14-cv-00196, 2015 WL 1296258, at *1–2 (D. Conn. March 23, 2015).Show More The court found no violation of his First Amendment rights, because despite the plaintiff’s interest in obtaining footage, the drone’s “trespass[] onto an active crime scene” hampered the police investigation.70 70.Id. at *10. The court expressly contrasted the plaintiff’s actions with the attempts by citizens to record the police using handheld devices at a distance from the ongoing investigation, like those at issue in Glikand Alvarez. Id.Show More

B. The First Circuit’s Project Veritas Decision

In December 2020, the First Circuit became the first federal court of appeals in the country to weigh in on the constitutionality of secret recordings. Judge Barron, writing for a unanimous panel, first found that the act of producing secret recordings is deserving of First Amendment protection, given the critical role such actions play in newsgathering.71 71.Project Veritas Action Fund v. Rollins, 982 F.3d 813, 832 (1st Cir. 2020).Show More In fact, the court agreed with the plaintiffs that secret recordings can “sometimes be a better tool for ‘gathering information about’ police officers conducting their official duties in public, and thereby facilitating ‘the free discussion of governmental affairs’ and ‘uncovering . . . abuses,’ than open recording is” because it is less likely to disrupt police operations and less likely to engender resistance from police officers.72 72.Id. at 832–33.Show More Admittedly, the production of the recording is not a form of expressive speech in the same way that Professor Jocelyn Simonson has described regarding open recordings.73 73.Simonson, supranote 23, at 435–36 (describing how organized copwatching takes “the shape of a confrontational practice that seeks change through a combination of official and grassroots channels”).Show More Nonetheless, the court argued that the secret recordings “can constitute newsgathering every bit as much as a credentialed reporter’s after-the-fact efforts to ascertain what had transpired.”74 74.Project Veritas, 982 F.3d at 833.Show More

The court then affirmed the lower court’s conclusion that Section 99, like other state wiretap laws, is a “content-neutral law of general applicability.”75 75.Id. at 834 (quoting Jean v. Mass. St. Police, 492 F.3d 24, 29 (1st Cir. 2007)).Show More While First Circuit precedent had not cleanly articulated what level of scrutiny should apply to such a law, the court concluded that the lower court’s evaluation under intermediate scrutiny—whether the statute “is ‘narrowly tailored to serve a significant government interest’”—was correct.76 76.Id. (quoting Rideout v. Gardner, 838 F.3d 65, 71–72 (1st Cir. 2016)).Show More

Having identified the relevant First Amendment interest at issue and the level of scrutiny to apply, the Court then revisited the two interests Section 99 was designed to realize: to “prevent[] interference with police activities and protect[] individual privacy.”77 77.Id. at 836.Show More The court conceded these qualified as important government interests but nevertheless found that an outright ban on secret recordings was not a narrowly tailored means to pursue those ends. First, any secret recording, by definition, would be produced out of plain sight and without the actual knowledge of the officer depicted.78 78.Id.Show More Accordingly, it would be hard to imagine how the recording itself could be understood to interfere with police activity.79 79.Id. at 836–37. The court did nod to Judge Posner’s concern in ACLU of Illinois v. Alvarez, 679 F.3d 583, 613 (7th Cir. 2012) (Posner, J., dissenting)—that the potential for secret recordings could deter confidential informants from cooperating with police officers. However, the court found it was largely without merit, given that officers meeting with informants are likely careful about the circumstances in which they do so and the defendants offered no concrete evidence of such deterrence, only conjecture. Id. at 837.Show More

The court devoted considerably more attention to the second potential government interest: protecting individual privacy. At oral argument, the District Attorney argued the relevant interest was not a freedom from being filmed, but a freedom from being filmed without notice to ensure “the vibrancy of [] public spaces” and assure citizens “they will not be unwittingly recorded.”80 80.Project Veritas, 982 F.3d at 837–38.Show More While acknowledging the importance of this interest, Judge Barron countered that on-duty police officers “are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights.”81 81.Id. at 838 (quoting Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)).Show More To that end, the court concluded that even where a police officer might have some privacy interest in their actions, a total ban of surreptitious audio recordings is “too unqualified to be justified in the name of protecting that degree of privacy.”82 82.Id.Show More Even the privacy concerns of individuals who interact with police officers cannot justify “the blunderbuss prohibitory approach embodied in Section 99,” given the public nature of the private individual’s speech.83 83.Id. at 839. For example, the court noted the potential privacy interest in the identity of rape victims. Id. (citing Fla. Star v. B.J.F., 491 U.S. 524, 537 (1989)).Show More Given the critically important role that surreptitious recordings play in the ability of private individuals to gather news about police officer conduct without fear of retaliation for their actions, the statute failed intermediate scrutiny.84 84.For that reason, the court found that there was no alternative kind of recording that would serve the same function as surreptitious recordings. Their outright prohibition under Section 99 could not survive intermediate scrutiny. Id. at 839–40.Show More

Police officers, as agents of the state, are entrusted with the protection of the public safety and are authorized to exert force, including deadly force if necessary, to achieve that mission.85 85.SeeBarry Friedman, Unwarranted: Policing without Permission5 (2017) (“Policing officials are granted remarkable powers. They are allowed to use force on us. And to conduct surveillance of us. . . . Possession of these powers . . .  is what defines policing, what sets it apart.”).Show More However, to render that permission legitimate, the public must be able to seek redress when its trust is abused. As Robert Post argues, this process requires that “citizens have access to the public sphere so that they can participate in the formation of public opinion” and “that governmental decision making be somehow rendered accountable to public opinion.”86 86.Robert Post, Participatory Democracy and Free Speech, 97 Va. L. Rev. 477, 482 (2011). Show More Within the context of policing, the production of recordings by citizens can play a critical role in that democratic process by broadening the scope of perspectives that informs the public’s understanding of the police.

Given the extent to which many activists, like Martin and Perez, credibly fear retribution, it may be that surreptitious recordings are the only kind that activists feel safe to produce. While recordings of law enforcement officers are often made openly, with the intention of making the officer aware they are being recorded,87 87.See, e.g.,Glik v. Cunniffe, 655 F.3d 78, 79–80 (1st Cir. 2011). These kinds of tactics have consistently been used in protests over police brutality. Karen Hao, How to Turn Filming the Police into the End of Police Brutality, M.I.T. Tech. Rev. (June 10, 2020), https://www.technologyreview.com/2020/06/10/1002913/how-to-end-police-brutality-filming-witnessing-legislation/ [https://perma.cc/LLB7-686G].Show More this is not the case for those who fear reprisals. Recordings bringing attention to the most salient examples of police brutality have often come at a heavy cost to those who created them, including through violent retaliation, intimidation, and pretextual arrest at the hands of law enforcement.88 88.Officers often render citations to civilian recorders for broadly defined and difficult to disprove charges, such as obstruction. See, e.g.,Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017). Some of the most prominent civilian recorders, like those who filmed the police killings of Freddie Gray, Eric Garner, Walter Scott, Philando Castile, and Alton Sterling, have faced continued harassment at the hands of the police. Dragana Kaurin, The Price of Filming Police Violence, Vice (Apr. 27, 2018), https://www.vice.com/en/article/evqw9z/filming-police-brutality-retaliation [https://perma.cc/9PUX-6DAG].Show More Cities have also enacted ordinances imposing sanctions on those recording public police activity if an officer determines the recording unduly interferes with their ongoing investigation.89 89.See, e.g.,Tucson, Ariz., Code art. I, §§ 11-70.3, 11-70.4 (2020) (prohibiting individuals from “physically entering crime scenes or areas immediately surrounding where such enforcement activity . . . [is] taking place” and criminalizing activity that “materially inhibits, obstructs, hinders, or delays any Police Officer . . . in the exercise of the Officer’s official duties”).Show More Under such threats, it is no wonder individuals wish to keep secret their act of recording.

And just as the ability to produce secret recordings incentivizes the “democratization of proof,”90 90.Fan, supranote 25, at 1645.Show More so too does it ensure that officers cannot hide from public scrutiny by changing their behavior when they know others may see it. Counsel for the government of Massachusetts, in the oral argument for Project Veritas, raised this very point, ironically asserting that secret recordings should be prohibited so that public officials can know when they are being recorded and censor their behavior accordingly.91 91.See Oral Argument at 14:20, Project Veritas Action Fund v. Rollins, No. 19-1629 (1st Cir. argued Jan. 8, 2020), sub nom. Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018), available at https://www.courtlistener.com/audio/67830/project-veritas-action-fund-v-rollins/ [https://perma.cc/NCP4-82GU] (“Under the statute, the principle that the legislature subscribed to . . . is the notion that people have an interest in knowing when they’re being recorded, so that they can make appropriate choices about how to conduct themselves.”).Show More We assert, however, that this is directly contrary to the public’s interest. We should not want police officers to modify how they would otherwise behave when the public is not watching. In fact, surreptitious recording is the only way we can truly know how public officials are acting when the cameras are no longer rolling. Embracing secret recording, as the First Circuit demonstrated in Project Veritas, would supplement the range of perspectives that the public can access. It would bring life to the idea that “[W]e are the police. What is done by the police is done by all of us.”92 92.Friedman, supranote 85, at 321.Show More

C. Other Circuit Precedent on Surreptitious Recordings

The First Circuit’s decision is groundbreaking, in large part, because no other federal circuit has addressed the question of surreptitious recordings so squarely. Though a variety of courts have identified a generalized right to record the police in public, none have examined the contours of this right in such great detail.93 93.SeeTurner v. Driver, 848 F.3d 678, 690 (5th Cir. 2017) (“This right [to record the police], however, ‘is not without limitations.’ Like all speech, filming the police ‘may be subject to reasonable time, place, and manner restrictions.’ In this case, however, we need not decide which specific time, place, and manner restrictions would be reasonable.”) (quoting Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)); see also Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017) (declining to address the limits of the constitutional right to record); ACLU of Ill. v. Alvarez, 679 F.3d 583, 606 (7th Cir. 2012) (stating that the court need not address surreptitious recordings or recordings of private conversations); Glik, 655 F.3d at 84 (declining to address the limits of the right to film); Fordyce v. City of Seattle, 55 F.3d 436, 440 (9th Cir. 1995) (noting that the Washington Supreme Court had not yet interpreted whether its wiretapping statute covered private conversations); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing a First Amendment right to record but not defining its scope).Show More Further, in circuits that have not considered the issue, courts have granted police officers qualified immunity for actions taken to prevent civilian recorders from documenting officers’ actions in public, or for retaliating against these recorders, so long as they were not otherwise infringing upon the recorder’s constitutional rights.94 94.For example, the Tenth Circuit recently found that four officers were entitled to qualified immunity in a Section 1983 action that alleged the officers had unconstitutionally infringed on the plaintiff’s First Amendment right to record the police in public spaces because no such right had been clearly established at the time of the purported violation. Frasier v. Evans, 992 F.3d 1003, 1023 (10th Cir. 2021). However, the court then “exercise[d] [its] discretion to bypass the constitutional question of whether such right even exists.” Id. at 1020 n.4.Show More This reality has endangered citizens’ ability to surreptitiously record the police.

Notably, the Seventh Circuit, in ACLU of Illinois v. Alvarez, went so far as to evince explicit skepticism that the First Amendment would protect surreptitious recordings made in public spaces.95 95.See Alvarez, 679 F.3d at 605–07.Show More This was despite holding that private citizens have a right to produce public recordings of police-civilian interactions.96 96.Id. at 608 (enjoining the State’s Attorney from applying the Illinois wiretap statute against the ACLU and its employees who openly record law enforcement).Show More The court distinguished the public nature of the recording at issue from surreptitious recordings, suggesting that the regulation of the latter might survive intermediate scrutiny because secret recordings fail to provide adequate notice to subjects that they are being recorded.97 97.Id. at 605–06. Under this standard, courts ask whether the regulation is narrowly tailored to serve a substantial government interest, meaning the government must prove its interest “would be achieved less effectively absent the regulation” and that the regulation can accomplish this end without burdening “substantially more speech than is necessary.” Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).Show More According to the court, the secret nature of the recording could “bring[] stronger privacy interests into play.”98 98.Alvarez, 679 F.3d at 607 n.13 (citing Bartnicki v. Vopper, 532 U.S. 514, 529 (2001)).Show More The Seventh Circuit’s skepticism about the legality of secret recordings was, until now, the only forecast of how regulations of surreptitious recordings under state and federal wiretap statutes might be treated.

In addition, prior to the First Circuit’s decision in Project Veritas, federal courts had largely avoided questions involving the constitutionality of secret recording of the police. Federal and state courts alike often found that the act of recording does not violate state wiretap statutes, as officers cannot reasonably claim an expectation of privacy in public places.99 99.See State v. Graber, No. 12-K-10-647, 2010 Md. Cir. Ct. LEXIS 7, at *19 (Md. Cir. Ct. Sept. 27, 2010); State v. Flora, 845 P.2d 1355, 1358 (Wash. Ct. App. 1992); Jones v. Gaydula, No. CIV. A. 85-1859, 1989 WL 156343, at *3 (E.D. Pa. Dec. 22, 1989).Show More And while courts have been clear that bystanders have a right to record police-civilian interactions, they have avoided exploring whether an officer might claim a privacy interest in cases involving recordings produced by third parties by finding that the bystander recorder violated another statute while producing their recording (such that police intervention was necessary), or, conversely, that the bystander’s right to record had not been clearly established.100 100.See Bleish v. Moriarty, No.11-cv-162, 2012 WL 2752188, at *10–*12 (D.N.H. 2012) (finding a Section 1983 plaintiff’s arrest for disorderly conduct did not violate the Fourth Amendment and that the plaintiff failed to show she was arrested for exercising her First Amendment rights); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (holding that the plaintiffs failed to show that the police had violated their First Amendment right to record); Gravolet v. Tassin, No.08-3646, 2009 WL 1565864, at *4 (E.D. La. June 2, 2009) (finding a Section 1983 plaintiff’s arrest while recording did not violate his Fourth Amendment rights because the officers had probable cause to arrest him for stalking and that the plaintiff failed to clearly establish his right to record).Show More That path, however, was unavailable to the First Circuit. Section 99, as described above, is unique among wiretap statutes in that it prohibits all secretly produced audio recordings, irrespective of whether the person depicted could claim any reasonable expectation of privacy in the content of their recorded speech.101 101.Seesupra notes 35–39 and accompanying text.Show More As a result, the court, for the first time in the country, fully confronted the constitutionality of such a regulation.

II. Impact Beyond Boston

The implications of the First Circuit’s decision in Project Veritas will reach far outside the state of Massachusetts. While Section 99 is unique in its express prohibition of secret recordings, the underlying principle has direct consequences to other states’ wiretap laws. We argue here that, as similar First Amendment interests are at play in both public and secret contexts, constitutional protection for secret recordings should be extended across the country,102 102.Scholars have previously discussed the compelling justifications for extending constitutional protection to surreptitious recordings. See, e.g., Rodden, supra note 24, at 907.Show More as has successfully happened in the First Circuit. While the Seventh Circuit may be correct in highlighting that surreptitious recording of police might implicate different privacy interests than open recordings,103 103.Alvarez, 679 F.3d at 607 n.13.Show More the distinction between them is not sufficiently meaningful, on its own, to override these important First Amendment interests. Further, solutions outside of constitutionally securing the right to secretly record the police provide insufficient protection and certainty to would-be recorders. To reach an opposite conclusion would frustrate police accountability efforts and threaten the public’s understanding of police misconduct.

A. The Contours of This Argument

The claim we make here is a limited one: The First Circuit was correct to hold that a right to record should protect bystanders who secretly record on-duty officers engaging with citizens in public spaces.104 104.There are valid, constitutionally cognizable concerns that may limit the right to secretly record police-civilian interactions, for example, in private spaces. See Kaminski, supra note 23, at 238–42. However, these distinctions are not constitutionally meaningful when comparing secret and open recordings of the police in public.Show More However, such a right is not unlimited. For example, if the making of a recording might legitimately interfere with police activities, or, per the First Circuit, lead an officer to “reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties,” such recordings may be proscribed by reasonable time, place, and manner restrictions.105 105.Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014). But see Simonson, supranote 23, at 1563 (arguing that an officer may only prevent those acts of recording which would create a “concrete, physical impediment to a police officer or to public safety”).Show More It is admittedly more complicated to proscribe such measures in circumstances where the recording in question was made surreptitiously—but it would be correspondingly difficult to prove such secret recordings actually interfered with the officer’s exercise of their duties.106 106.See supra note 79 and accompanying text.Show More

An echo of this concern rings through in Judge Posner’s dissent in Alvarez. He argues that in some circumstances, a private citizen might want to engage a police officer in public without their interaction “being broadcast on the evening news or blogged throughout the world.”107 107.Alvarez, 679 F.3d at 611 (Posner, J., dissenting).Show More Just as the threat of civilian oversight might discourage members of the public—from the covert informant to the crime victim—from seeking out an officers’ aid, so too might a policeman’s ability to protect the public safety be diminished if he were to be constantly watching for any would-be recorders.108 108.See id. at 611–12 (Posner, J., dissenting).Show More It would follow that such an effect would be all the more pronounced where an officer, and the public with which he interacts, know that any passerby could record and publish their interaction, without either of them having ever been made the wiser.

The concern is not without merit, but it is one that can be addressed with tools officers already have at their disposal. First, they might meet with private citizens in private settings, where an officer’s privacy interest is stronger.109 109.See, e.g., Commonwealth v. Bradley, 232 A.3d 747, 755–56 (Pa. Sup. Ct. 2020) (holding that a no-filming condition in the lobby of a police department was a reasonable time, place, manner restriction to “ensure the safety, security and privacy of officers, informants and victims”).Show More While the public has a legitimate interest in observing the public behavior of police officers, the “Constitution itself is [not] a Freedom of Information Act.”110 110.Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978) (quoting Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 636 (1975)).Show More Thus, individuals cannot expect the government to disclose private information regarding police officer engagements, particularly if such a disclosure might “place[] their personal security, [or] that of their families, at substantial risk.”111 111.Kallstrom v. City of Columbus, 136 F.3d 1055, 1067–69 (6th Cir. 1998) (finding that the city’s release of the police personnel files, which included, among other things, officers’ home addresses, phone numbers, banking information, social security numbers, of the police officers who participated as witnesses in a criminal defense trial to defense counsel violated the officers’ due process rights by rendering them vulnerable to “private acts of vengeance”). See alsoWhalen v. Roe, 429 U.S. 589, 599–600 (1977) (holding that there is a constitutionally protected right to privacy in an individual’s interest in avoiding the disclosure of highly sensitive, personal information).Show More Second, to the extent that there may exist a legitimate need to engage a civilian without public observation, there is, of course, nothing preventing an officer from establishing reasonable time, place, and manner restrictions to do so. In an instance in which an officer might not be sure whether or not privacy is necessary to pursue an investigatory lead or promote the public safety, reasonable preemptive measures could well be taken to prevent the interference of a surreptitious recording.112 112.See, e.g.,Hill v. Colorado, 530 U.S. 703, 725–26 (2000) (holding that an eight-foot zone around persons entering a healthcare facility was “a valid time, place, and manner regulation”). Where the production of a secret recording would contravene such reasonable time, place, manner restrictions, the police may legitimately stop the citizen recorder’s production and dissemination of that recording. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017). It should be noted, though, that Supreme Court precedent suggests that the police still may not prohibit the dissemination of such recordings by third parties. SeeBartnicki v. Vopper, 532 U.S. 514, 535 (2001) (“[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”); see alsoJean v. Mass. St. Police, 492 F.3d 24, 31 (1st Cir. 2007) (finding that the publication of another’s surreptitiously produced recording, thereby violating Section 99, is entitled to First Amendment protection and therefore immunized the publisher from prosecution, even where the publisher “arguably participated . . . in a conspiracy to disclose the content of [an] illegally recorded oral communication”).Show More

Furthermore, regardless of whether a recording is produced openly or surreptitiously, it remains true there is not a cognizable constitutional claim to privacy in conversations between police officers and civilians. As in the case of openly made recordings, officers do not have a legitimate privacy interest in their conduct when acting in an official capacity in public spaces.113 113.See supra notes 62–65 and accompanying text; see also Jesse Harlan Alderman, Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity, 33 N. Ill. U. L. Rev. 485, 513 (2013) (explaining that “police officers qua police officers do not own a personal privacy expectation in their official acts under prevailing judicial interpretations”).Show More As a result, creating a distinction between open and surreptitious recordings lacks constitutional significance. Giving notice to those recorded does not change the public nature of the exchange or the public’s interest in them.

As discussed in Part I, though, private citizens captured in secret recordings have different privacy interests at stake than police officers.114 114.See supranotes 58–61 and accompanying text. Some have argued that any person who engages a police officer in a public space loses any reasonable expectation of privacy that they might otherwise be able to claim. See Alderman, supra note 113, at 513–14.Show More Private civilians interacting with the police might legitimately argue that surreptitious recordings violate their right to be let alone, particularly if the interaction devolves into violence or, as it has for too many, death. Some commentators have observed how the production, and subsequent viral consumption, of such videos can become exploitative and even echo the lynch mobs of years past.115 115.See Allissa V. Richardson, Why Cellphone Videos of Black People’s Deaths Should Be Considered Sacred, Like Lynching Photographs,The Conversation (May 28, 2020), https://theconversation.com/why-cellphone-videos-of-black-peoples-deaths-should-be-considered-sacred-like-lynching-photographs-139252 [https://perma.cc/XRH4-XL75].Show More Such privacy concerns extend to bystanders who happen to be captured by a recording, especially when they are engaged in personally or politically sensitive activity.116 116.Consider a recording of protestors that could expose them to criminal or civil liability. Depending on the circumstances of the conduct depicted, the protestor may have a colorable claim that the recording of their actions was an invasion of their privacy. See Thomas Germain, How to Record Video During a Protest, Consumer Reports (June 5, 2020), https://www.consumerreports.org/audio-video/how-to-record-video-during-a-protest/ [https://perma.cc/7BN6-QPM7].Show More

These claims, as the First Circuit found, should fail under a standard of intermediate scrutiny, as they do in the public recording context. The viability of any privacy interest underlying such claims necessarily depends on the circumstances of the interaction in question, the means of recording, and the reasonability of the party’s expectation of privacy. Scholars have presented a number of ways to determine whether an expectation of privacy is reasonable;117 117.See Scott Skinner-Thompson, Recording as Heckling, 108 Geo. L. J. 125, 169–73 (2019); see also Richard C. Turkington, Confidentiality Policy for HIV-Related Information: An Analytical Framework for Sorting Out Hard and Easy Cases, 34 Vill. L. Rev. 871, 877–78 (1989) (suggesting a three-pronged analysis to adjudicate the reasonability of an individual’s claim to privacy within the context of disclosing a patient’s HIV status); Doris DelTosto Brogan, Privacy’s Place at the Table: A Reflection on Richard Turkington’s Approach to Valuing and Balancing Privacy Interests, 61 Vill. L. Rev. 437, 445, 456–64 (2016) (arguing that Professor Turkington’s framework is broadly applicable and analyzing its potential application to the NSA data sweeping program and the deployment of police body cameras as examples).Show More an underlying theme of these proposals involves determining the costs inflicted on other important social values, including the ability for the public to critique matters of public interest.118 118.See, e.g., DelTosto Brogan, supra note 117, at 443–45 (comparing such an analysis to that proposed by Judge Learned Hand to analyze whether or not a defendant acted negligently in the canonical United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)).Show More Where such costs cannot be found to outweigh the value of maintaining one’s assertion of privacy, the privacy interest should give way.119 119.DelTosto Brogan, supra note 117, at 443–45.Show More Moreover, there are less restrictive means to protecting these privacy interests. When one is surreptitiously recorded, they can redress harm through a private tort action against the recorder as an invasion of their privacy, to the extent such a relevant interest exists.120 120.Among other causes of action, a plaintiff might successfully argue a recording was an undue invasion of their privacy if it created “unreasonable publicity,” so long as the matter publicized was “highly offensive to a reasonable person” and “not of legitimate concern to the public.” Restatement (Second) of Torts §§ 652D, 652D cmt. C (1977).Show More

And, from a pragmatic perspective, a legal distinction between open and secret recordings is not workable in a world where recording technology is ever-evolving. Today’s iPhone may well be supplanted by tomorrow’s eyeglass camera. Given the subjective nature of the inquiry of the depicted subject’s knowledge, determining whether a recording was made surreptitiously would require a court to identify the kind of recording technology of which a depicted subject was aware before even considering whether the officer understood a recording was being taken.121 121.Analogous inquiries have plagued courts. For example, the Supreme Court has previously instructed lower courts to determine whether a police officer’s use of a given piece of technology in the course of an investigation constituted a search under the Fourth Amendment by asking whether that technology was in “general public use” at the time. Kyllo v. United States, 533 U.S. 27, 34–35 (2001). Critics have argued that such an inquiry is inadequate because it fails to consider how “courts [are] to deal with the rapid pace of technological development in deciding whether something is in the general public use.” SeeChristopher Slobogin, Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo’s Rules Governing Technological Surveillance, 86 Minn. L. Rev. 1393, 1412–13 (2002) (furthering that “[a]dvanced technology can find its way in to the average home very quickly. When that happens . . . the courts will either have to change their stance, manipulate the meaning of the general public use doctrine, or ignore it”).Show More Even if a court could salvage a standard to apply to such situations, such a test would hardly provide the level of necessary certainty to those who hope to record police-civilian interactions without fear of retribution or legal sanction.

In short, prohibiting the secret recording of police-civilian interactions under wiretap laws constitutes a broad overreach that fails to account for the valid First Amendment interests such actions serve.122 122.See supranotes 75–84 and accompanying text.Show More Applying such laws to secret recordings leads to chilling effects felt by those fearing criminal prosecution and retaliation.123 123.See Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) (“The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.”).Show More To most effectively promote the First Amendment interests in bringing light to misconduct that might otherwise go unnoticed, surreptitious recordings should be granted constitutional protection.124 124.For an exploration of this argument, seegenerally Rodden, supranote 24.Show More In other words, a strong implication of the Project Veritas decision is that the application of one-party consent wiretap laws against secret recordings should be held unconstitutional.

B. The Insufficiency of Alternatives

In the alternative, some scholars argue that granting constitutional protection to secret recorders is unnecessary. To fix this social problem, police departments and prosecutors’ offices should simply commit to a policy of non-enforcement of wiretap statutes against civilian recorders.125 125.Brncik, supranote 25, at 515–19.Show More Or, instead, these entities should lead educational campaigns about the potential criminal liability associated with recording the police in public spaces, so as to protect potential violators from sanction.126 126.Id. at 520–21.Show More From this perspective, amending wiretap statutes would be too difficult, given the privacy interests implicated and the opposition such efforts would engender from groups like police unions.127 127.Id. at 514–15 (citing attempts at reform in Congress and the Mississippi legislature that were stymied, in large part, by police union opposition).Show More Instead, a policy of non-enforcement would enjoy support from such special interests (who might otherwise balk at the idea of dramatic policy change) while accomplishing the same policy ends.128 128.Id. at 516–17 (pointing out police departments that have adopted such a policy and advising prosecutors’ offices to follow suit).Show More

We agree that Congress, state legislatures, and police departments would serve the public well by implementing policies that dissuade officers from arresting or harassing those who record public police conduct. And, in the absence of other developments, such a policy choice may be warranted. However, the very conceit of this argument—that the production of these recordings implicates societal values of sufficient importance to encourage policy change129 129.Id. at 502–03 (“These recordings help to inform the public and to enrich the public debate over what is or is not abusive behavior. Video evidence is particularly valuable because videos provide the viewer . . . a credible account of the interaction.”).Show More—highlights the weakness of the position. As the First Circuit’s decision makes clear, civilians’ ability to surreptitiously record the police in public spaces implicates a critical First Amendment interest that, absent a significant and countervailing government interest, cannot be infringed by state or federal policy.130 130.Project Veritas v. Rollins, 982 F.3d 813, 831 (1st Cir. 2020) (affirming the “particular significance of First Amendment newsgathering rights with respect to government”) (internal quotation marks and citations omitted).Show More The important nature of the right thereby requires that any protection granted for it be unyielding to the whims of those who may later find it inconvenient, a quality not exhibited by a policy of non-enforcement. Such a practice is only a temporary fix for a larger, structural problem and leaves individuals’ rights vulnerable to future violation. The salience of this interest necessitates constitutional protection, both inside Massachusetts and beyond.131 131.See Rodden, supranote 24, at 906–07 (advocating that the secret recording of the police be permissible under all wiretap statutes, as a discrepancy between the standards applied to secret and open recordings “gives police the ability to circumvent this right, subjects those who wish to exercise it to potential prosecution, and reduces police accountability for their actions”). The First Circuit’s decision, in many ways, serves as a model for how Rodden’s argument can be given effect nationally.Show More

Further, a policy of non-enforcement is incapable of supplying the requisite level of certainty to would-be secret recorders, in either the short or long term, to guarantee they will not face criminal penalties for their activity.132 132.For an extensive discussion on the merits and dangers of nonenforcement, see generally Zachary S. Price, Reliance on Nonenforcement, 58 Wm. & Mary L. Rev. 937 (2017).Show More While a policy of non-enforcement may temporarily abate a recorder’s fear of criminal prosecution, it is neither legally binding nor free from the prospect of its future renouncement.133 133.As explored by Professor Price, whether or not one’s reliance interests would be protected under a policy of nonenforcement depends on how a particular jurisdiction would weigh that interest against the rights of executives to enforce the law. Id. at 947.Show More As a result, those interested in recording surreptitiously may be discouraged from doing so under such guidelines. It is only by recognizing the right to secretly record that the balance of power can be shifted and third-party bystanders can be empowered to shed light on police misconduct—not merely when those in power allow it. As the First Circuit acknowledged, this aim is best accomplished through a widely-recognized constitutional guarantee of the First Amendment right to secretly record the police.134 134.See supranotes 90–92 and accompanying text.Show More In this way, Project Veritas can serve as a model for how the right to record intersects with, and by and large outweighs, other political and social interests.

Conclusion

On March 3, 1991, Rodney King was brutally beaten during a routine traffic stop by officers of the Los Angeles Police Department. A plumber named George Holliday—who observed the altercation from a nearby, second-story balcony—pulled out his newly-purchased Sony Handycam and hit “record.”135 135.Paul Martin Lester, Visual Ethics: A Guide for Photographers, Journalists, and Filmmakers 87 (2018); Erik Ortiz, George Holliday, Who Taped Rodney King Beating, Urges Others to Share Videos, NBC News (June 9, 2015), https://www.nbcnews.com/nightly-news/george-holliday-who-taped-rodney-king-beating-urges-others-share-n372551 [https://perma.cc/NM3F-Z9KZ].Show More

A direct line connects George Holliday to Darnella Frazier and the social movements their actions have inspired. These movements would not have been possible without bystander recording of the police.136 136.See McLaughlin, supra note 2.Show More In a recent statement marking the one year anniversary of George Floyd’s murder, Frazier put it simply: “If it weren’t for my video, the world wouldn’t have known the truth.”137 137.Hannah Knowles, Teen Speaks Out a Year After Filming George Floyd’s Death, Saying Her Video ‘Put His Murderer Away’, Wash. Post (May 25, 2021), https://www.washingtonpost.com/nation/2021/05/25/darnella-frazier-floyd-statement/ [https://perma.cc/4XMH-A2UZ].Show More While the interactions filmed by George Holliday and Darnella Frazier graphically illustrated the real, brutal, and unauthorized tactics of law enforcement, it was the recording of these circumstances that pushed an understanding of this reality into our public consciousness.

The First Circuit’s decision in Project Veritas affirms this reality and, in response, correctly extends constitutional protection to surreptitious recorders. A legal regime that would draw unintelligible distinctions between secret and open recordings would restrict the tools available to the Fraziers and Hollidays of tomorrow. The secret recording of the police is a particularly crucial tool, as it enables the public reporting of police activity in a way that exposes police misconduct, better informs public discourse, and makes democratic redress and reform possible, free from fear of police retaliation or legal sanction. In this way, secret recordings of the police serve a valid First Amendment interest that open recordings cannot. While these recordings implicate the privacy interests of those depicted, particularly for third-party bystanders who act without notice that their words and conduct are being recorded for public observation, these interests are not sufficient to justify the prohibition of secret recordings.

The First Circuit’s decision boldly, and correctly, gives purchase to the claim that secret recordings allow us to internalize not just what police permit us to see, but what happens at the hands of law enforcement agents when cameras are off. As other courts should soon recognize, the secret recording of police by bystanders is—and must be—a First Amendment-protected right, and wiretap statutes restricting this practice must be found unconstitutional as applied. The robustness of our public reporting and, consequently, our ability to remedy police misconduct depends on it.

  1. * Aidan J. Coleman, University of Virginia School of Law, J.D. 2021; University of Virginia, M.A. (History) 2021. Katharine M. Janes, University of Virginia School of Law, J.D. 2021; University of Virginia, M.A. (History) 2021. We would like to thank Professor Frederick Schauer, William Scheffer, and Chinmayi Sharma for their helpful feedback on early drafts of this Comment. A special thanks to the editors of the Virginia Law Review—and in particular Elizabeth Adler, Tyler Demetriou, and Anna Cecile Pepper—for their insightful comments and edits.
  2. Joshua Nevett, George Floyd: The Personal Cost of Filming Police Brutality, BBC News (June 11, 2020), https://www.bbc.com/news/world-us-canada-52942519 [https://perma.cc/‌VC7P-C3RU].
  3. Audra D. S. Burch & John Eligon, Bystander Videos of George Floyd and Others Are Policing the Police, N.Y. Times (Mar. 5, 2021), https://www.nytimes.com/2020/05/26/us/‌george-floyd-minneapolis-police.html [https://perma.cc/4G2N-DVA5]. See also Eliot C. McLaughlin, How George Floyd’s Death Ignited a Racial Reckoning that Shows No Signs of Slowing Down, CNN (Aug. 9, 2020), https://www.cnn.com/2020/08/09/us/george-floyd-protests-different-why/index.html [https://perma.cc/D7UC-Y6AR] (highlighting that the protests following George Floyd’s death were unique in that they saw an influx of “myriad White faces”).
  4. Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Social Movement in U.S. History, N.Y. Times (July 3
    , 2020),

    https://www.nytimes.com/‌interactive/2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/6XAT-9MJE]. The 2017 Women’s March previously held this title, which saw crowds of 3 to 5 million in marches nationwide. Id.; McLaughlin, supra note 2.

  5. Scott Gant, We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age
    6 (2007).

  6. See Fields v. City of Philadelphia, 862 F.3d 353, 355–56 (3d Cir. 2017); Turner v. Driver, 848 F.3d 678, 689 (5th Cir. 2017); ACLU of Ill. v. Alvarez, 679 F.3d 583, 595–600, 608 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995).
  7. See Project Veritas Action Fund v. Rollins, 982 F.3d 813, 819–20 (1st Cir. 2020).
  8. See, e.g., Alvarez, 679 F.3d at 606–07, 607 n.13 (“The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play.”).
  9. 982 F.3d at 833.
  10. Mass. Gen. Laws ch. 272, § 99 (2018) (‘‘Section 99’’).
  11. Project Veritas, a far-right non-profit organization whose methods have sparked controversy, brought a separate challenge to Section 99 that, on appeal, was consolidated with K. Eric Martin and Rene Perez’s suit against the Suffolk County District Attorney. Martin and Perez are unaffiliated with Project Veritas. Project Veritas went beyond Martin and Perez’s requested remedy by seeking to enjoin the enforcement of this statute against the secret recording of any public official. Given the broader nature of this claim, this essay will not contest whether or not the rationales justifying the court’s decision in this case should be applied to cover all such figures. However, it is worth noting that the First Circuit rejected Project Veritas’s broader argument on the grounds that it was unripe. See Project Veritas, 982 F.3d at 817.
  12. Brief for Plaintiff-Appellees at 1–2, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) (No. 19-1629) (submitted by K. Eric Martin and Rene Perez).
  13. Id. at 9–11.
  14. Gary Man Arrested for Recording Police Officer, Now Considering Legal Action, NBC Chicago (Aug. 9, 2020), https://www.nbcchicago.com/news/local/gary-man-arrested-for-recording-police-officer-now-considering-legal-action/2319456/ [https://perma.cc/CB8J-7YBK].
  15. Ray Sanchez, Growing Number of Prosecutions for Videotaping the Police, ABC News (July 16, 2010), https://abcnews.go.com/US/TheLaw/videotaping-cops-arrest/story?id=‌11179076 [https://perma.cc/E3NH-N6HJ].
  16. Mayor: 3 Charged in Fraudulent Check Scheme; Internal Investigation Launched After Cops Scuffle with Man Videotaping Scene, WHAS-TV (Nov. 29, 2020), https://www.whas11.com/article/news/crime/jeffersontown-officers-arrest-man-videotaping-kentucky-investigation-3-charged-check-fraud/417-a32470a8-5810-4b5e-a095-4e1105c3d331 [https://perma.cc/BJS5-L85D].
  17. Press Release, ACLU, ACLU Sues After Mother Falsely Arrested by Boynton Beach Police Officers (June 25, 2010), https://www.aclu.org/press-releases/aclu-sues-after-mother-falsely-arrested-boynton-beach-police-officers [https://perma.cc/9HU9-LB2K].
  18. Press Release, ACLU Pa., Lawsuit on Behalf of Man Arrested for Recording Police Officer Settles (Oct. 9, 2013), https://www.aclupa.org/en/press-releases/lawsuit-behalf-man-arrested-recording-police-officer-settles [https://perma.cc/7DWJ-545F].
  19. Man Arrested for Recording Police Awarded $275,000, CBS Sacramento (Nov. 29, 2017), https://sacramento.cbslocal.com/2017/11/29/man-arrested-for-recording-police-awarded-275000/ [https://perma.cc/8YNP-3SV5].
  20. Mass. Gen. Laws ch. 272, § 99(C)(1) (2018).
  21. See infra Part I.A.
  22. See id.
  23. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 281–83 (1964).
  24. See Margot E. Kaminski, Privacy and the Right to Record, 97 B.U. L. Rev. 167, 170–71 (2017); Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 339 (2011); Justin Marceau & Alan K. Chen, Free Speech and Democracy in the Video Age, 116 Colum. L. Rev. 991, 997–99 (2016); Jocelyn Simonson, Copwatching, 104 Calif. L. Rev. 391, 442 (2016); Elizabeth J. Frawley, Note, No Calling Cut: The Political Right to Record Police, 17 U. Pa. J. Const. L. 287, 298 (2014).
  25. See Timothy D. Rodden Jr., Note, Yes, This Phone Records Audio!: The Case for Allowing Surreptitious Citizen Recordings of Public Police Encounters, 47 Suffolk U. L. Rev. 905, 926–27 (2014); Taylor Robertson, Note, Lights, Camera, Arrest: The Stage is Set for a Federal Resolution of a Citizen’s Right to Record the Police in Public, 23 B.U. Pub. Int. L.J. 117, 137–39 (2014).
  26. See Mary D. Fan, Democratizing Proof: Pooling Public and Police Body-Camera Videos, 96 N.C. L. Rev. 1639, 1667–68 (2018); Rebecca G. Van Tassell, Comment, Walking a Thin Blue Line: Balancing the Citizen’s Right to Record Police Officers Against Officer Privacy, 2013 BYU L. Rev. 183, 184 (2013); Mark Brncik, Note, A Case for Non-Enforcement of Anti-Recording Laws Against Citizen Recorders, 62 Case W. Rsrv. L. Rev. 485, 515 (2011); Lisa A. Skehill, Note, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981, 1011 (2009).
  27. The increased prevalence of citizen recordings shifts the balance of power between police officers and the communities they serve. See Jocelyn Simonson, Beyond Body Cameras: Defending a Robust Right to Record the Police, 104 Geo. L.J.
    1559, 1568 (2016) (

    arguing that changing the video’s perspective transfers power and serves a valuable social purpose).

  28. See, e.g., Dina Mishra, Comment, Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers’ Power, 117 Yale L.J. 1549, 1553–55 (2008) (arguing that citizen recording supplements existing checks against law enforcement abuses, such as the exclusionary rule and Section 1983 actions); Simonson, supra note 23,

    at 407–21 (explaining how copwatching can serve as a form of deterrence to, data collection of, and constitutional engagement with police misconduct)

    .

  29. 982 F.3d 813, 817, 820 (1st Cir. 2020), aff’g Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018).
  30. Mass. Gen. Laws ch. 272, § 99 (2018); Project Veritas, 982 F.3d at 817, 820.
  31. Project Veritas, 982 F.3d at 820. Though they could not predict for the court the particular moments at which they would need to make such recordings, the plaintiffs argued that their prior experience in openly recording police officers suggested that such moments would certainly occur. Brief for Plaintiff-Appellees at 9, Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020) (No. 19-1629) (submitted by K. Eric Martin and Rene Perez).
  32. Project Veritas, 982 F.3d at 820.
  33. Id. at 828–29. It was not necessary for the court’s review that the plaintiffs specify the particular circumstances in which they would produce future secret recording, as their challenge was limited to the production of secret recordings in public spaces, a phrase the First Circuit had itself previously used to “describe the geographic bounds of the citizen’s right to record police officers.” Id. at 827 (citing Glik v. Cunniffe, 655 F.3d 78, 84–85 (1st Cir. 2011); Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014)).
  34. Id. at 829–30.
  35. Id. at 830–31, 836.
  36. 18 U.S.C. § 2511(2)(d) (2018).
  37. See, e.g., Kan. Stat. Ann. § 21-6101(a)(1) (2019).
  38. Cal. Penal Code § 632 (West 2017); Del. Code Ann. tit. 11, § 1335(a)(4) (2017); Fla. Stat. § 934.03(2)(d) (2019); Haw. Rev. Stat. Ann. § 711-1111(1)(d)–(e) (LexisNexis 2016); Md. Code Ann., Cts. & Jud. Proc. § 10-402(c)(3) (West 2019); Mich. Comp. Laws § 750.539c–d (2016); Mont. Code Ann. § 45-8-213(1)(c) (2019); N.H. Rev. Stat. Ann. § 570-A:2(I) (2017); 18 Pa. Cons. Stat. Ann. § 5704(4) (West 2020); Wash. Rev. Code § 9.73.030(1) (2019). In
    2014,

    the Illinois Supreme Court held the state’s two-party consent statute was unconstitutional as written, as it banned the recording of conversations or situations when the parties had no reasonable expectation of privacy, thus violating the First Amendment. People v. Melongo, 6 N.E.3d 120, 127 (Ill. 2014).

  39. Brncik, supra note 25, at
    492–93.

  40. Mass. Gen. Laws ch. 272, § 99(A) (2018) (“The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth.”). Notably, a recording is secret, according to the Supreme Judicial Court of Massachusetts, when it is made without the actual knowledge of the depicted subject, though that finding may be established by “unequivocal objective manifestations of knowledge.” Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976).
  41. Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976). See also Commonwealth v. Hyde, 750 N.E.2d 963, 968 (Mass. 2001) (reaffirming this interpretation).
  42. Sam Bayard, Massachusetts Wiretapping Law Strikes Again, Digit. Media L. Project (Dec. 12, 2007), http://www.dmlp.org/blog/2007/massachusetts-wiretapping-law-strikes-again [https://perma.cc/ADJ9-ZZ9Q].
  43. Id.
  44. Daily Free Press Admin, BU Protester Fined, Could Face Jail Time, Daily Free Press (Dec. 6, 2007), https://dailyfreepress.com/2007/12/06/bu-protester-fined-could-face-jail-time/ [https://perma.cc/MG7H-4H5X].
  45. See supra note 5.
  46. Id.
  47. See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); see also Fields v. City of Philadelphia, 862 F.3d 353, 358–59 (3d Cir. 2017) (affirming that the First Amendment protects the act of “capturing inputs that may yield expression”) (quoting Brief for the Cato Institute as Amicus Curiae at 7); Kreimer, supra note 23, at 408–09 (concluding that given how, in public spaces, “pervasive image capture grants authority to a range of unofficial voices . . . [and] provides a means of holding the conduct of the powerful to account,” it must be that “the First Amendment protects the right to record images we observe as part of the right to form, reflect upon, and share our memories”).
  48. Statement of Interest of the United States at 4, Sharp v. Baltimore City Police Dep’t, No. 1:11-cv-02888, 2012 WL 9512053 (D. Md. filed Jan. 10, 2012); see also Justin Fenton, DOJ Urges Judge to Side with Plaintiff in Baltimore Police Taping Case, Balt. Sun (Jan. 11, 2012), https://www.baltimoresun.com/news/bs-xpm-2012-01-11-bs-md-ci-aclu-doj-videotaping-20120111-story.html [https://perma.cc/7XVA-W4SW ] (describing the case).
  49. Glik, 655 F.3d at 83–84 (“[T]he public’s right of access to information is coextensive with that of the press.”).
  50. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 275 (1964) (“The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.”); Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.”).
  51. City of Houston v. Hill, 482 U.S. 451, 460–62, 467 (1987) (invalidating a city ordinance which made it illegal to interrupt an officer in the performance of his duties).
  52. Glik, 655 F.3d at 82 (quoting Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978)).
  53. See First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978) (emphasizing that First Amendment protections go “beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw”).
  54. Glik, 655 F.3d at 82 (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).
  55. Id.
  56. Id. at 83 (quoting Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 8 (1986)).
  57. Simonson, supra note 23, at 408.
  58. Id. at 421.
  59. See, e.g., ACLU of Ill. v. Alvarez, 679 F.3d 583, 611 (7th Cir. 2012) (Posner, J., dissenting).
  60. See, e.g., Nader v. Gen. Motors Corp., 255 N.E.2d 765, 771 (N.Y. 1970) (clarifying that “under certain circumstances, surveillance may be so ‘overzealous’ as to render it actionable” as an invasion of one’s right to privacy).
  61. Kaminski, supra note 23, at
    171.

    It should be noted, though, that privacy is a notoriously difficult value to characterize, and it often depends upon the context in which it is claimed. See Daniel J. Solove, Understanding Privacy 101–70 (2008) (proposing a taxonomy of privacy interests); Julie E. Cohen, What Privacy is For, 126 Harv. L. Rev. 1904, 1907–08 (2013) (arguing that attempts to define privacy as deriving a single overarching principle are inevitably unworkable).

  62. Kaminski, supra note 23, at 202–03. But cf. Kreimer, supra note 23, at
    404

    (arguing that the primary privacy harm of recording is in its public dissemination).

  63. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 534–35 (2001) (“[P]rivacy concerns give way when balanced against the interest in publishing matters of public importance.”).
  64. See e.g., State v. Flora, 845 P.2d 1355, 1357 (Wash. Ct. App. 1992) (“The State urges us to adopt the view that public officers performing an official function on a public thoroughfare in the presence of a third party and within the sight and hearing of passersby enjoy a privacy interest which they may assert under the statute. We reject that view as wholly without merit.”).
  65. See, e.g., Rotkiewicz v. Sadowsky, 730 N.E. 2d 282, 287 (Mass. 2000) (finding that a police officer is a public official for purposes of defamation claims because of “the broad powers vested in police officers and the great potential for abuse of those powers, as well as police officers[’] high visibility within and impact on a community.”).
  66. See Lopez v. United States, 373 U.S. 427, 437–39 (1963).
  67. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1219–20 (10th Cir. 2007) (highlighting the importance of protecting officer safety but nonetheless finding that the public interest in revealing officer misconduct outweighed that concern under the facts of this case).
  68. See ACLU of Ill. v. Alvarez, 679 F.3d 583, 611–12 (7th Cir. 2012) (Posner, J., dissenting). Surveys show that a majority of police officers often suggest they are supportive of wearing body cameras. See Rich Morin, Kim Parker, Renee Stepler & Andrew Mercer, Behind the Badge, Pew Rsch. Ctr. 75 (Jan. 11, 2017), https://www.pewsocialtrends.org/wp-content/uploads/sites/3/2017/01/Police-Report_FINAL_web.pdf [https://perma.cc/CG6C-FTCW]. But that support does not often extend to citizen recorders, as law enforcement feel they would unduly interfere with the execution of their duties. See, e.g., Alysia Santo, Why Cops Aren’t Ready for Their Close-Up, Marshall Project (Apr. 24, 2015), https://www.themarshallproject.org/2015/04/24/why-cops-aren-t-ready-for-their-close-up [https://perma.cc/29Y3-3ZL4] (highlighting police support for a 2015 Texas state bill that would criminalize photographing on-duty police officers).
  69. Alvarez, 679 F.3d at 607; Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011). See also Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010) (observing “even insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions”).
  70. Rivera v. Foley, No. 3:14-cv-00196, 2015 WL 1296258, at *1–2 (D. Conn. March 23, 2015).
  71. Id. at *10. The court expressly contrasted the plaintiff’s actions with the attempts by citizens to record the police using handheld devices at a distance from the ongoing investigation, like those at issue in Glik and Alvarez. Id.
  72. Project Veritas Action Fund v. Rollins, 982 F.3d 813, 832 (1st Cir. 2020).
  73. Id. at 832–33.
  74. Simonson, supra note 23, at 435–36 (describing how organized copwatching takes “the shape of a confrontational practice that seeks change through a combination of official and grassroots channels”).
  75. Project Veritas, 982 F.3d at 833.
  76. Id. at 834 (quoting Jean v. Mass. St. Police, 492 F.3d 24, 29 (1st Cir. 2007)).
  77. Id. (quoting Rideout v. Gardner, 838 F.3d 65, 71–72 (1st Cir. 2016)).
  78. Id. at 836.
  79. Id.
  80. Id. at 836–37. The court did nod to Judge Posner’s concern in ACLU of Illinois v. Alvarez, 679 F.3d 583, 613 (7th Cir. 2012) (Posner, J., dissenting)—that the potential for secret recordings could deter confidential informants from cooperating with police officers. However, the court found it was largely without merit, given that officers meeting with informants are likely careful about the circumstances in which they do so and the defendants offered no concrete evidence of such deterrence, only conjecture. Id. at 837.
  81. Project Veritas, 982 F.3d at 837–38.
  82. Id. at 838 (quoting Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)).
  83. Id.
  84. Id. at 839. For example, the court noted the potential privacy interest in the identity of rape victims. Id. (citing Fla. Star v. B.J.F., 491 U.S. 524, 537 (1989)).
  85. For that reason, the court found that there was no alternative kind of recording that would serve the same function as surreptitious recordings. Their outright prohibition under Section 99 could not survive intermediate scrutiny. Id. at 839–40.
  86. See

    Barry Friedman, Unwarranted: Policing without Permission

    5 (2017) (“Policing officials are granted remarkable powers. They are allowed to use force on us. And to conduct surveillance of us. . . . Possession of these powers . . .  is what defines policing, what sets it apart.”).

  87. Robert Post, Participatory Democracy and Free Speech, 97 Va. L. Rev. 477, 48
    2 (2011).

  88. See, e.g., Glik v. Cunniffe, 655 F.3d 78, 79–80 (1st Cir. 2011). These kinds of tactics have consistently been used in protests over police brutality. Karen Hao, How to Turn Filming the Police into the End of Police Brutality, M.I.T. Tech. Rev. (June 10, 2020), https://www.technologyreview.com/2020/06/10/1002913/how-to-end-police-brutality-filming-witnessing-legislation/ [https://perma.cc/LLB7-686G].
  89. Officers often render citations to civilian recorders for broadly defined and difficult to disprove charges, such as obstruction. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017). Some of the most prominent civilian recorders, like those who filmed the police killings of Freddie Gray, Eric Garner, Walter Scott, Philando Castile, and Alton Sterling, have faced continued harassment at the hands of the police. Dragana Kaurin, The Price of Filming Police Violence, Vice (Apr. 27, 2018), https://www.vice.com/en/article/evqw9z/filming-police-brutality-retaliation [https://perma.cc/9PUX-6DAG].
  90. See, e.g., Tucson, Ariz., Code art. I, §§ 11-70.3, 11-70.4 (2020) (prohibiting individuals from “physically entering crime scenes or areas immediately surrounding where such enforcement activity . . . [is] taking place” and criminalizing activity that “materially inhibits, obstructs, hinders, or delays any Police Officer . . . in the exercise of the Officer’s official duties”).
  91. Fan, supra note 25, at 1645.
  92. See Oral Argument at 14:20, Project Veritas Action Fund v. Rollins, No. 19-1629 (1st Cir. argued Jan. 8, 2020), sub nom. Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass. 2018), available at https://www.courtlistener.com/audio/67830/project-veritas-action-fund-v-rollins/ [https://perma.cc/NCP4-82GU] (“Under the statute, the principle that the legislature subscribed to . . . is the notion that people have an interest in knowing when they’re being recorded, so that they can make appropriate choices about how to conduct themselves.”).
  93. Friedman, supra note 85, at 321.
  94. See Turner v. Driver, 848 F.3d 678, 690 (5th Cir. 2017) (“This right [to record the police], however, ‘is not without limitations.’ Like all speech, filming the police ‘may be subject to reasonable time, place, and manner restrictions.’ In this case, however, we need not decide which specific time, place, and manner restrictions would be reasonable.”) (quoting Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)); see also Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017) (declining to address the limits of the constitutional right to record); ACLU of Ill. v. Alvarez, 679 F.3d 583, 606 (7th Cir. 2012) (stating that the court need not address surreptitious recordings or recordings of private conversations); Glik, 655 F.3d at 84 (declining to address the limits of the right to film); Fordyce v. City of Seattle, 55 F.3d 436, 440 (9th Cir. 1995) (noting that the Washington Supreme Court had not yet interpreted whether its wiretapping statute covered private conversations); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing a First Amendment right to record but not defining its scope).
  95. For example, the Tenth Circuit recently found that four officers were entitled to qualified immunity in a Section 1983 action that alleged the officers had unconstitutionally infringed on the plaintiff’s First Amendment right to record the police in public spaces because no such right had been clearly established at the time of the purported violation. Frasier v. Evans, 992 F.3d 1003, 1023 (10th Cir. 2021). However, the court then “exercise[d] [its] discretion to bypass the constitutional question of whether such right even exists.” Id. at 1020 n.4.
  96. See Alvarez, 679 F.3d at 605–07.
  97. Id. at 608 (enjoining the State’s Attorney from applying the Illinois wiretap statute against the ACLU and its employees who openly record law enforcement).
  98. Id. at 605–06. Under this standard, courts ask whether the regulation is narrowly tailored to serve a substantial government interest, meaning the government must prove its interest “would be achieved less effectively absent the regulation” and that the regulation can accomplish this end without burdening “substantially more speech than is necessary.” Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).
  99. Alvarez, 679 F.3d at 607 n.13 (citing Bartnicki v. Vopper, 532 U.S. 514, 529 (2001)).
  100. See State v. Graber, No. 12-K-10-647, 2010 Md. Cir. Ct. LEXIS 7, at *19 (Md. Cir. Ct. Sept. 27, 2010); State v. Flora, 845 P.2d 1355, 1358 (Wash. Ct. App. 1992); Jones v. Gaydula, No. CIV. A. 85-1859, 1989 WL 156343, at *3 (E.D. Pa. Dec. 22, 1989).
  101. See Bleish v. Moriarty, No.11-cv-162, 2012 WL 2752188, at *10–*12 (D.N.H. 2012) (finding a Section 1983 plaintiff’s arrest for disorderly conduct did not violate the Fourth Amendment and that the plaintiff failed to show she was arrested for exercising her First Amendment rights); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (holding that the plaintiffs failed to show that the police had violated their First Amendment right to record); Gravolet v. Tassin, No.08-3646, 2009 WL 1565864, at *4 (E.D. La. June 2, 2009) (finding a Section 1983 plaintiff’s arrest while recording did not violate his Fourth Amendment rights because the officers had probable cause to arrest him for stalking and that the plaintiff failed to clearly establish his right to record).
  102. See supra notes 35–39 and accompanying text.
  103. Scholars have previously discussed the compelling justifications for extending constitutional protection to surreptitious recordings. See, e.g., Rodden, supra note 24, at 907.
  104. Alvarez, 679 F.3d at 607 n.13.
  105. There are valid, constitutionally cognizable concerns that may limit the right to secretly record police-civilian interactions, for example, in private spaces. See Kaminski, supra note 23, at 238–42. However, these distinctions are not constitutionally meaningful when comparing secret and open recordings of the police in public.
  106. Gericke v. Begin, 753 F.3d 1, 8 (1st Cir. 2014). But see Simonson, supra note 23, at 1563 (arguing that an officer may only prevent those acts of recording which would create a “concrete, physical impediment to a police officer or to public safety”).
  107. See supra note 79 and accompanying text.
  108. Alvarez, 679 F.3d at 611 (Posner, J., dissenting).
  109. See id. at 611–12 (Posner, J., dissenting).
  110. See, e.g., Commonwealth v. Bradley, 232 A.3d 747, 755–56 (Pa. Sup. Ct. 2020) (holding that a no-filming condition in the lobby of a police department was a reasonable time, place, manner restriction to “ensure the safety, security and privacy of officers, informants and victims”).
  111. Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978) (quoting Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 636 (1975)).
  112. Kallstrom v. City of Columbus, 136 F.3d 1055, 1067–69 (6th Cir. 1998) (finding that the city’s release of the police personnel files, which included, among other things, officers’ home addresses, phone numbers, banking information, social security numbers, of the police officers who participated as witnesses in a criminal defense trial to defense counsel violated the officers’ due process rights by rendering them vulnerable to “private acts of vengeance”). See also Whalen v. Roe, 429 U.S. 589, 599–600 (1977) (holding that there is a constitutionally protected right to privacy in an individual’s interest in avoiding the disclosure of highly sensitive, personal information).
  113. See, e.g., Hill v. Colorado, 530 U.S. 703, 725–26 (2000) (holding that an eight-foot zone around persons entering a healthcare facility was “a valid time, place, and manner regulation”). Where the production of a secret recording would contravene such reasonable time, place, manner restrictions, the police may legitimately stop the citizen recorder’s production and dissemination of that recording. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017). It should be noted, though, that Supreme Court precedent suggests that the police still may not prohibit the dissemination of such recordings by third parties. See Bartnicki v. Vopper, 532 U.S. 514, 535 (2001) (“[A] stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”); see also Jean v. Mass. St. Police, 492 F.3d 24, 31 (1st Cir. 2007) (finding that the publication of another’s surreptitiously produced recording, thereby violating Section 99, is entitled to First Amendment protection and therefore immunized the publisher from prosecution, even where the publisher “arguably participated . . . in a conspiracy to disclose the content of [an] illegally recorded oral communication”).
  114. See supra notes 62–65 and accompanying text; see also Jesse Harlan Alderman, Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity, 33 N. Ill. U. L. Rev. 485, 513 (2013) (explaining that “police officers qua police officers do not own a personal privacy expectation in their official acts under prevailing judicial interpretations”).
  115. See supra notes 58–61 and accompanying text. Some have argued that any person who engages a police officer in a public space loses any reasonable expectation of privacy that they might otherwise be able to claim. See Alderman, supra note 113, at 513–14.
  116. See Allissa V. Richardson, Why Cellphone Videos of Black People’s Deaths Should Be Considered Sacred, Like Lynching Photographs, The Conversation (May 28, 2020), https://theconversation.com/why-cellphone-videos-of-black-peoples-deaths-should-be-considered-sacred-like-lynching-photographs-139252 [https://perma.cc/XRH4-XL75].
  117. Consider a recording of protestors that could expose them to criminal or civil liability. Depending on the circumstances of the conduct depicted, the protestor may have a colorable claim that the recording of their actions was an invasion of their privacy. See Thomas Germain, How to Record Video During a Protest, Consumer Reports (June 5, 2020), https://www.consumerreports.org/audio-video/how-to-record-video-during-a-protest/ [https://perma.cc/7BN6-QPM7].
  118. See Scott Skinner-Thompson, Recording as Heckling, 108 Geo. L. J. 125, 169–73 (2019); see also Richard C. Turkington, Confidentiality Policy for HIV-Related Information: An Analytical Framework for Sorting Out Hard and Easy Cases, 34 Vill. L. Rev. 871, 877–78 (1989) (suggesting a three-pronged analysis to adjudicate the reasonability of an individual’s claim to privacy within the context of disclosing a patient’s HIV status); Doris DelTosto Brogan, Privacy’s Place at the Table: A Reflection on Richard Turkington’s Approach to Valuing and Balancing Privacy Interests, 61 Vill. L. Rev. 437, 445, 456–64 (2016) (arguing that Professor Turkington’s framework is broadly applicable and analyzing its potential application to the NSA data sweeping program and the deployment of police body cameras as examples).
  119. See, e.g., DelTosto Brogan, supra note 117, at 443–45 (comparing such an analysis to that proposed by Judge Learned Hand to analyze whether or not a defendant acted negligently in the canonical United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)).
  120. DelTosto Brogan, supra note 117, at 443–45.
  121. Among other causes of action, a plaintiff might successfully argue a recording was an undue invasion of their privacy if it created “unreasonable publicity,” so long as the matter publicized was “highly offensive to a reasonable person” and “not of legitimate concern to the public.” Restatement (Second) of Torts §§ 652D, 652D cmt. C (1977).
  122. Analogous inquiries have plagued courts. For example, the Supreme Court has previously instructed lower courts to determine whether a police officer’s use of a given piece of technology in the course of an investigation constituted a search under the Fourth Amendment by asking whether that technology was in “general public use” at the time. Kyllo v. United States, 533 U.S. 27, 34–35 (2001). Critics have argued that such an inquiry is inadequate because it fails to consider how “courts [are] to deal with the rapid pace of technological development in deciding whether something is in the general public use.” See Christopher Slobogin, Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo’s Rules Governing Technological Surveillance, 86 Minn. L. Rev. 1393, 1412–13 (2002) (furthering that “[a]dvanced technology can find its way in to the average home very quickly. When that happens . . . the courts will either have to change their stance, manipulate the meaning of the general public use doctrine, or ignore it”).
  123. See supra notes 75–84 and accompanying text.
  124. See Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) (“The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.”).
  125. For an exploration of this argument, see generally Rodden, supra note 24.
  126. Brncik, supra note 25, at 515–19.
  127. Id. at 520–21.
  128. Id. at 514–15 (citing attempts at reform in Congress and the Mississippi legislature that were stymied, in large part, by police union opposition).
  129. Id. at 516–17 (pointing out police departments that have adopted such a policy and advising prosecutors’ offices to follow suit).
  130. Id. at 502–03 (“These recordings help to inform the public and to enrich the public debate over what is or is not abusive behavior. Video evidence is particularly valuable because videos provide the viewer . . . a credible account of the interaction.”).
  131. Project Veritas v. Rollins, 982 F.3d 813, 831 (1st Cir. 2020) (affirming the “particular significance of First Amendment newsgathering rights with respect to government”) (internal quotation marks and citations omitted).
  132. See Rodden, supra note 24, at 906–07 (advocating that the secret recording of the police be permissible under all wiretap statutes, as a discrepancy between the standards applied to secret and open recordings “gives police the ability to circumvent this right, subjects those who wish to exercise it to potential prosecution, and reduces police accountability for their actions”). The First Circuit’s decision, in many ways, serves as a model for how Rodden’s argument can be given effect nationally.
  133. For an extensive discussion on the merits and dangers of nonenforcement, see generally Zachary S. Price, Reliance on Nonenforcement, 58 Wm. & Mary L. Rev. 937 (2017).
  134. As explored by Professor Price, whether or not one’s reliance interests would be protected under a policy of nonenforcement depends on how a particular jurisdiction would weigh that interest against the rights of executives to enforce the law. Id. at 947.
  135. See supra notes 90–92 and accompanying text.
  136. Paul Martin Lester, Visual Ethics: A Guide for Photographers, Journalists, and Filmmakers 87 (2018); Erik Ortiz, George Holliday, Who Taped Rodney King Beating, Urges Others to Share Videos, NBC News (June 9, 2015), https://www.nbcnews.com/nightly-news/george-holliday-who-taped-rodney-king-beating-urges-others-share-n372551 [https://perma.cc/NM3F-Z9KZ].
  137. See McLaughlin, supra note 2.
  138. Hannah Knowles, Teen Speaks Out a Year After Filming George Floyd’s Death, Saying Her Video ‘Put His Murderer Away’, Wash. Post (May 25, 2021), https://www.washingtonpost.com/nation/2021/05/25/darnella-frazier-floyd-statement/ [https://perma.cc/4XMH-A2UZ].

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.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.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.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.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.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.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.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.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.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).

Why BIPOC Fails

Introduction

Racial tensions have been endemic to the U.S. since its founding. In 2020, this racial conflict bubbled over into the streets as those supporting Black Lives Matter and opposing a long history of racist police violence congregated to demand justice.1.Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/‌2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/2Q5H-978V].Show More Last year and still now, the global pandemic has placed additional stress on communities of color, which have been disproportionately affected by and infected with COVID-19.2.Daniel Wood, As Pandemic Deaths Add Up, Racial Disparities Persist—And in Some Cases Worsen, NPR (Sept. 23, 2020, 1:01 PM) (“People of color get sick and die of COVID-19 at rates higher than whites and higher than their share of the population.”), https://www.npr.org/sections/health-shots/2020/09/23/914427907/as-pandemic-deaths-add-up-racial-disparities-persist-and-in-some-cases-worsen [https://perma.cc/TZT9-HHZ2].Show More While they were threatened with loss of life from disease, Black men and women continued to be killed at the hands of police and unchecked vigilantes.3.Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 B.U. L. Rev. 951, 957–58 (2020).Show More The question thus became whether to stay home to stay safe from a deadly virus or take to the streets to demand safety from state-sanctioned violence. The result was the largest mass protest in U.S. history, with thousands of Black and Brown people masked up fighting for their lives and thousands of allies standing and shouting beside them.4.Buchanan, Bui & Patel, supra note 1.Show More

This level of activism clearly demonstrates that change is both needed and long overdue. The response from the corporate world,5.Corporations that donated to antiracist causes include Home Depot, Ubisoft, Apple, Facebook, Intel, and Peloton. Isabel Togoh, Corporate Donations Tracker: Here Are the Companies Giving Millions to Anti-Racism Efforts, Forbes (June 1, 2020, 12:10 PM), https://www.forbes.com/sites/isabeltogoh/2020/06/01/corporate-donations-tracker-here-are-the-companies-giving-millions-to-anti-racism-efforts/?sh=3160129d37dc [https://perma.cc/TL8R-FPXT].Show More sports teams and celebrity athletes,6.Taking a Knee: Athletes Protest Against Racism Around the World—in Pictures, The Guardian (Aug. 27, 2020, 4:35 PM) (“[A]thletes around the world have been kneeling in support of Black Lives Matter and wearing the phrase on jerseys and T-shirts while NBA players boycotted game five of their playoff series in protest of the police shooting against Jacob Blake”), https://www.theguardian.com/sport/gallery/2020/aug/27/nba-strike-athletes-kneeling-black-lives-matter-protest [https://perma.cc/D8PH-ULBT].Show More institutions of higher education,7.Joey Hadden, How the Top 25 Colleges and Universities in the US Are Responding to the Black Lives Matter Protests, Bus. Insider (June 25, 2020, 12:56 PM), https://www.businessinsider.com/college-top-us-universities-respond-black-lives-matter-protests-2020-6 [https://perma.cc/692G-PJR6].Show More and people throughout the world8.Jen Kirby, “Black Lives Matter” Has Become a Global Rallying Cry Against Racism and Police Brutality, Vox (June 12, 2020, 7:30 AM) (noting that “[t]he police killing of George Floyd has sparked a worldwide reckoning”), https://www.vox.com/2020/6/12/21285244/‌black-lives-matter-global-protests-george-floyd-uk-belgium.Show More has been largely supportive in terms of recognizing the need for a purposeful commitment to antiracism. One unanswered question asks whether these cries for change could also benefit from an update in the language and terminology that advocates, allies, and academics use when discussing issues of race and racism.9.This Essay introduces these concepts and questions. For more on usage of various terms, limitations of BIPOC, and application to the particular context of legal education, see Meera E. Deo, Beyond BIPOC (in progress 2021) (unpublished manuscript) (on file with author).Show More

At this moment of reckoning, we have the opportunity and responsibility to reexamine our language and the terms we use to name and claim racism and resistance. While we previously settled for small diversity gains, many now push for greater inclusion, equity, and belonging as well as broader antiracist principles demanding action.10 10.See generally Meera E. Deo, The End of Affirmative Action, 100 N. Carolina L. Rev. (forthcoming 2021) (proposing an overhaul of affirmative action policies and suggesting broader inclusion of minority groups by differentiating the experiences of each group and the addition of diversity, equity, and inclusion to existing policies).Show More In the context of higher education, for example, law schools have relied for decades on educational diversity as a rationale for affirmative action—a priority that ignores racism, equity, and representation.11 11.Granted, institutions of higher learning have relied on educational diversity as a justification for affirmative action because no other compelling state interests have been deemed constitutional. Meera E. Deo, The Promise of Grutter: Diverse Interactions at the University of Michigan Law School, 17 Mich. J. Race & L. 63, 68–69 (2011).Show More Yet in 2020, five Black women leaders spearheaded the Law Deans Antiracist Clearinghouse Project to guide the many law schools issuing faculty resolutions committing themselves to becoming (more) antiracist as a signal of more meaningful progress in legal education.12 12.For more on this project, including the five suggested phases schools should engage with on the path to becoming antiracist, see Danielle M. Conway, Danielle Holley-Walker, Kimberly Mutcherson, Angela Onwuachi-Willig & Carla D. Pratt, Law Deans Antiracist Clearinghouse Project, Ass’n Am. Law Schs., https://www.aals.org/antiracist-clearinghouse/ (last visited Mar. 5, 2021) [https://perma.cc/X3Z5-JHQX].Show More A change in terminology does more than add to the lexicon; it also signals a change in priorities for those working towards racial justice. Should there be additional language updates that signal our updated priorities?

Since roughly May 2020, there has been interest within some circles in the new term “BIPOC”—referring to those who are Black, Indigenous, and People of Color.13 13.Sandra E. Garcia, Where Did BIPOC Come From?, N.Y. Times (June 17, 2020), https://www.nytimes.com/article/what-is-bipoc.html [https://perma.cc/H978-PFGG]. The exact origins and sudden popular usage of BIPOC remain unclear, though they are traced in more detail in Beyond BIPOC. Deo, supra note 9, at 18-20.Show More The term first appeared online in 2013 and expanded on social media when taken up mainly by educated elites who see themselves as progressive voices on issues of race or ethnicity, regardless of their own identity backgrounds.14 14.Who Does the Acronym “BIPOC” Actually Serve?, The Takeaway (June 25, 2020), https://www.wnycstudios.org/podcasts/takeaway/segments/acronym-bipoc-race-language?tab=summary [https://perma.cc/K3UY-ZJQ5]; If podcast: Who Does The Acronym BIPOC Actually Serve?, The Takeaway (June 25, 2020). Both race and ethnicity are fluid (rather than fixed) concepts that change over time and in varying contexts. See, e.g., Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.–C.L.L. Rev. 1, 8, 10 (1994).Show More However, what has been missing entirely is a wider conversation about usage of the term—why it may be necessary to update language, how it can be a tool in anti-subordination efforts, and whether this particular term is the most effective at this particular time. New language should not take over without community engagement and deep reflection.

While language is key to anti-subordination, BIPOC damages those efforts rather than being helpful, especially among those searching for new language addressing contemporary issues of race and racism. New terms are useful and should be utilized in antiracism efforts; yet BIPOC itself does a disservice to communities of color and efforts to dismantle systems of racial privilege. Centering particular groups only in name ultimately furthers their marginalization because they remain excluded in fact though referenced in the term, erasing the power that comes from participation and inclusion. BIPOC begins with the premise that we should always center two particular racial groups—Black and Indigenous—within the people of color category, though these communities are not always at the center of the issue being discussed. While concentrating on these two groups may make sense in particular contexts, it cannot be true that every example of race and racism should center Black and Indigenous voices or experiences.

This Essay initiates a discussion about how we should critically examine which issues and data are most relevant to our arguments and advocacy efforts and how we should match our terms to the particular groups at the center of those priorities.15 15.The discussion on limitations of BIPOC continues in Deo, supra note 9, at 20-22.Show More This will mean aggregating groups at times and naming them separately at others; whether finding community through unity or standing separately to highlight distinctions, either of these options is better than BIPOC. Particular examples showcase the failures of BIPOC, both in theory and in practice, including ways in which it can be misleading, confusing, and contribute to the invisibility of the very groups that should be centered in particular contexts.

The Essay begins by outlining the relationship between language and anti-subordination, explaining why words matter as an act of resistance. Part II explores the benefits of unity between groups, resulting in pan-racial umbrella communities such as “people of color” and “women of color” that provide greater strength and solidarity to groups that may be distinct but can nevertheless stand together under one umbrella. Part III provides three initial rationales for why BIPOC is not the best term for our times, as well as a series of examples showing how BIPOC is a misleading representation of communities of color in various contexts. Together, these add evidence to the claim that allies, advocates, and academics should not simply use whatever term is currently in vogue but instead critically examine the language we use and carefully match it to our data, priorities, and conclusions.

I. The Language of Anti-Subordination

Language has a direct connection to subordination, and therefore anti-subordination. “Anti[-]subordination theorists contend that guarantees of equal citizenship cannot be realized under conditions of pervasive social stratification,” as is the case currently and has been historically in the U.S.16 16.Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 9 (2003); see Adrien Katherine Wing, Introduction to Critical Race Feminism: A Reader 1, 7 (Adrien Katherine Wing ed., 2d ed. 2003); 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; Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107, 151 (1976).Show More Change, they argue, depends in part on law “reform[ing] institutions and practices that enforce the secondary social status of historically oppressed groups.”17 17.Balkin & Siegel, supra note 16.Show More Often, the law follows broad social trends demonstrating change, rather than being a leader in those efforts.18 18.See Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 12–14 (2011); Jamillah Williams, Naomi Mezey & Lisa Singh, #BlackLivesMatter—Getting from Contemporary Social Movements to Legal Change, 12 Calif. L. Rev. Online 1 ( 2021).Show More

Language, on the other hand, is often the leader, providing an opportunity to rethink and reconceptualize ingrained concepts to transcend original meanings using new terms coined by activists and others on the front lines of change. Clearly, language itself (like race) is both socially constructed and fluid—constantly changing, shifting, and evolving. When using language and especially when crafting new terms to think about race, racism, and resistance, it is therefore critically important that racial categories and terminology are grounded not only in history, but in contemporary context.19 19.See generally Jonathan Rosa & Nelson Flores, Unsettling Race and Language: Toward a Raciolinguistic Perspective, 46 Language in Soc’y 621 (2017); Jonathan Rosa, Looking Like a Language, Sounding Like a Race: Raciolingustic Ideologies and the Learning of Latinidad (2019).Show More Furthermore, changes in terminology can be confusing to outsiders (meaning anyone not referenced by the term) and are especially important for allies and others who are eager to support anti-subordination efforts without always knowing which terms or words are currently preferred.

Consider the reclaiming of dyke in the LGBTQ+ context—an opportunity for women oppressed and maligned for being lesbians to reinvent the term, using their claim on language to share pride in how they name and refer to themselves.20 20.Gregory Coles, Emerging Voices: The Exorcism of Language: Reclaimed Derogatory Terms and their Limits, 78 C. Eng. 424, 424–25 (2016).Show More Similarly, recent interest in adopting crip as an identity moniker related specifically to disabled people seeks to de-stigmatize a term long used to denigrate those who have been “othered”21 21.For more on boundaries between groups, including distinctions between “us” vs. “them,” see Fredrik Barth, Introduction to Ethnic Groups and Boundaries 9, 15–16 (Fredrik Barth ed. 1969).Show More and instead reformulate it as a powerful identity marker uniting people around shared experiences, including resistance to assimilation.22 22.See Carrie Sandahl, Queering the Crip or Cripping the Queer? Intersections of Queer and Crip Identities in Solo Autobiographical Performance, 9 GLQ 25, 26–27 (2003); Robert McRuer, Crip Theory: Cultural Signs of Queerness and Disability 40–41 (2006); Jasmine E. Harris, Reckoning with Race and Disability, 130 Yale L.J.F. (forthcoming 2021).Show More

This reclaiming and resistance in language is similarly evident in the context of race. Some scholars have even called for a new academic focus, whether called raciolinguistics or LangCrit, to study the interplay of race, racism, and language.23 23.H. Samy Alim, Introducing Raciolinguistics: Racing Language and Languaging Race in Hyperracial Times, inRaciolinguistics: How Language Shapes Our Ideas about Race 1, 5 (H. Samy Alim, John R. Rickford & Arnetha F. Ball eds., 2016); Alison Crump, Introducing LangCrit: Critical Language and Race Theory, 11 Critical Inquiry in Language Stud. 207, 207 (2014).Show More Understanding that “racial identities can shift across contexts” means that we need new language to take account of those shifts over time.24 24.Alex Shashkevich, Stanford Experts Highlight Link Between Language and Race in New Book, Stan. News (Dec. 27, 2016), https://news.stanford.edu/2016/12/27/link-language-race-new-book/ [https://perma.cc/YDP7-PJBW].Show More More dramatically, scholars and others must recognize “the central role that language plays in processes of racialization,” and act accordingly—working to shape language as a form of anti-subordination.25 25.Id.Show More

There have been many such efforts over time. The shifts and changes and preferred terms of Negro, Colored, Black, and African American are less a signal of evolution and progress and more an opportunity to push back against stereotypes or expectations associated with various terms at various times—since language, like race, is fluid.26 26.See Ben L. Martin, From Negro to Black to African American: The Power of Names and Naming, 106 Pol. Sci. Q. 83, 83 (1991).Show More Like the reinvention of the terms dyke and crip, Black youth reclaiming the N-word is a prime example of a racial group that took language used to oppress them and turned it into a powerful way to reference “solidarity, censure, and a proactive stance that seeks to bring about positive change.”27 27.Jacquelyn Rahman, The N Word: Its History and Use in the African American Community, 40 J. Eng. Linguistics 137, 137 (2012).Show More

The naming of intersectionality also ushered in transformative change in the context of the combination of race and other identity characteristics.28 28.See Crenshaw, supra note 16, at 140 (coining the term).Show More Whether we call it “multiple consciousness, cosynthesis, holism, interconnectivity, [or] multidimensionality,” the revolutionary idea that intersecting identity characteristics define and limit us in various contexts remains essential to anti-subordination.29 29.Wing, supra note 16, at 1, 7.Show More The concept of intersectionality draws from the work of Kimberlé Crenshaw and other legal scholars referring to those with multiple devalued identity characteristics.30 30.See Crenshaw, supra note 16; Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1244 (1991). See generally Wing, supra note 16; Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment23 (2d ed. 2000); Evelyn Nakano Glenn, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor 6–7 (2002).Show More These Critical Race Theorists argue that those operating at the “intersection of recognized sites of oppression” along multiple domains suffer negative effects based on each as well as all of these identity markers.31 31.Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 58–63 (3d ed. 2017).Show More

Going a step further, we can specifically consider raceXgender identity, which encompasses people whose race intersects with their gender to create not additive (race plus gender) but compounded effects based on identification with two marginalized groups.32 32.Previous scholarship has highlighted how “utilizing the raceXgender nomenclature emphasizes the multifactorial effects of race ‘times’ gender for women of color.” Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia 8 (2019); Meera E. Deo, The Culture of “raceXgender” Bias in Legal Academia, in Power, Legal Education, and Law School Cultures 240, 241 (Meera E. Deo, Mindie Lazarus-Black & Elizabeth Mertz eds., 2019).Show More There are various intersectional combinations even in the race context that could be salient or even essential depending on the arguments being made or issues at hand—including raceXsexual orientation, raceXclass, and raceXage.33 33.Sandahl, supra note 22.Show More These linguistic changes signify the movement to antiracism.

The push for antiracism itself reflects an update in both language and priorities, signaling a shift from protecting diversity to promoting broader action-oriented change. In previous years, advocates were steadfastly focused on promoting racial diversity to advance racial justice. To that end, institutions of higher learning argued in court that admitting a racially diverse student body furthered students’ academic and professional outcomes.34 34.Grutter v. Bollinger, 539 U.S. 306, 328 (2003); Gratz v. Bollinger, 539 U.S. 244, 267 (2003); Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 310 (2013); Fisher v. Univ. of Tex. at Austin (Fisher II),136 S. Ct. 2198, 2208 (2016); Deo, supra note 10, at 68–72. The defendants in Bakke also argued there were other reasons to support affirmative action—including to increase minority representation among doctors, reduce societal discrimination, and increase service to disadvantaged communities—though none of these were sanctioned by the Court. Meera E. Deo, Affirmative Action Assumptions, 52 UC Davis L. Rev. 2407, 2412-15 (2019).Show More Those making “the business case for diversity” in the corporate world recognized and touted the connection between a company’s financial performance and its level of diversity along various metrics.35 35.Sundiatu Dixon-Fyle, Vivian Hunt, Kevin Dolan & Sara Prince, McKinsey & Co., Diversity Wins: How Inclusion Matters 13 (2020), https://www.mckinsey.com/~/‌media/McKinsey/Featured%20Insights/Diversity%20and%20Inclusion/Diversity%20wins%20How%20inclusion%20matters/Diversity-wins-How-inclusion-matters-vF.pdf [https://perma.cc/L7RA-3DT9].Show More The military even asserted that diversity among the troops and leaders of its various branches is a necessary ingredient for national security.36 36.Deo, supra note 10, at 65 n.4 (citing and quoting Grutter, 539 U.S. at 331) (“high-ranking retired officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle [sic] mission to provide national security.’”).Show More

In the past decade, interests in diversity have broadened to accentuate inclusion, equity, and belonging.37 37.Elizabeth Bodamer, Belonging in Law School (2021) (Ph.D. dissertation, Indiana University) (on file with author).Show More Using the well-litigated and high profile context of higher education, previous emphasis was on admitting students from different backgrounds in an effort to increase racial diversity on campus for the ostensible purpose of improving the quality of education for all students—which truly reflected an interest in admitting students of color to improve the educational experiences of whites.38 38.See Meera E. Deo, Faculty Insights on Educational Diversity, 83 Fordham L. Rev. 3115, 3117 (2015); Deo, supra note 10, at 3.Show More More recently, scholars and advocates have shifted their perspective to consider not only who is admitted but also the quality of the interactions and experiences of students of color once on campus.39 39.See, e.g., Meera E. Deo & Chad Christensen, Ind. Univ. Ctr. for Postsecondary Research, 2020 Annual Survey Results: Diversity & Exclusion 6 (2020), https://lssse.indiana.edu/wp-content/uploads/2020/09/Diversity-and-Exclusion-Final-9.29.20.pdf [https://perma.cc/3P3A-FK26].Show More This consideration not only of diversity but also of inclusion—“a cultural and environmental feeling of belonging” related to members feeling “valued, respected, accepted and encouraged to fully participate”—thus highlights an interest beyond diversity.40 40.Ella Washington & Camille Patrick, 3 Requirements for a Diverse and Inclusive Culture, GALLUP (Sept. 17, 2018), https://www.gallup.com/workplace/242138/requirements-diverse-inclusive-culture.aspx [https://perma.cc/A82S-U2MV].Show More Similarly, recent efforts to promote equity and belonging signal the importance of moving beyond diversity to consider broader anti-subordination and even antiracist principles.41 41.Deo, supra note 10.Show More

While the commitment to diversity and the rationales behind it remain intact, and that commitment has expanded to include greater inclusion, equity, and belonging, there has also been a shift toward pursuing the more anti-subordination and justice-oriented concept of antiracism. As scholar and author Ibram X. Kendi shares in his trailblazing book, How to Be an Antiracist, “[T]here is no neutrality in the racism struggle…. One either allows racial inequities to persevere, as a racist, or confronts racial inequities, as an antiracist.”42 42.Ibram X. Kendi, How to Be an Antiracist 9 (2019).Show More In this way, Kendi ties personal preferences to praxis, a central tenet of Critical Race Theory emphasizing that racial justice ideas must transcend the page to inspire “theory-informed action.”43 43.Chandra L. Ford & Collins O. Airhihenbuwa, Critical Race Theory, Race Equity, and Public Health: Toward Antiracism Praxis, 100 Am. J. Pub. Health S30, S31 (2010).Show More Thus, Kendi asserts that “being an antiracist requires persistent self-awareness, constant self-criticism, and regular self-examination.”44 44.Kendi, supra note 42, at 23.Show More Language itself is critical to the antiracist endeavor, including promoting or resisting “a whole vocabulary of old and new words—like ‘cultural wars’ and ‘stereotype’ and ‘implicit bias’.”45 45.Id. at 46–47. See also Michele Goodwin, Complicit Bias: Sexual Harassment and the Communities that Sustain It, Huffington Post (Dec. 11, 2017, 2:18AM) (using a new term “complicit bias” to describe community complicity in sustaining institutional bias and harassment in the workplace), https://www.huffpost.com/entry/complicit-bias-sexual-harassment-and-communities-that_b_5a2e238de4b0d7c3f262244f [https://perma.cc/LLB5-Q7DJ].Show More

Language, both old and new, can also be used to group together disparate groups who nevertheless share common experiences, as discussed below for people of color and other groups. Yet with a goal of anti-subordination in mind, we must push against groupings made purely for convenience’s sake, those that diminish or erase minority perspectives, or others that may seem initially useful or even progressive but in actuality serve to subtly reinforce entrenched norms and retrench existing hierarchies.

II. When Unity Leads to Erasure

Often language assumes unity—it creates the ability to bring people together, especially those who have shared identity characteristics. Creating terms to identify a class of heretofore disparate groups serves to bring them together under a new more inclusive umbrella. But what goes missing when groups band together?

Historically, the purpose of these umbrella groups has been to unite people with shared experiences for mutual political and social benefits.46 46.Constance Grady, Why the Term “BIPOC” Is So Complicated, Explained by Linguists, Vox (June 30, 2020, 9:10 AM) (“In the 1960s and ’70s, . . . groups like the Black Panther Party for Self Defense and the Brown Berets came together in solidarity as people of color, which was a new instantiation of the idea of people having color.”) (internal quotations omitted), https://www.vox.com/2020/6/30/21300294/bipoc-what-does-it-mean-critical-race-linguistics-jonathan-rosa-deandra-miles-hercules.Show More People from distinct backgrounds recognized that there was strength in numbers, and so sought out others who shared some (though not all) of their identity characteristics in order to work toward collective change.47 47.Efrén Pérez, (Mis)Calculations, Psychological Mechanisms, and the Future Politics of People of Color, 6 J. Race, Ethnicity & Pol. 33, 36–37 (2021); Efrén O. Pérez, Diversity’s Child: People of Color and the Politics of Identity (manuscript, 3-5) (forthcoming July 2021).Show More Two of these groups are briefly introduced here to provide context for BIPOC.48 48.The origin, evolution, benefits, and limitations of the terms “people of color” and “women of color” are covered in greater detail in Deo, supra note 9.Show More

One example is the term people of color, which bands together those who are Black, Latinx, Asian American, Native American, Arab American, and other non-whites.49 49.Pérez, supra note 47 (manuscript at 1-4). The term “Latinx” itself has come under scrutiny in this ongoing conversation about preferred language for communities, advocates, and allies. Jonathan Rosa, Looking Like a Language, Sounding Like a Race: Raciolinguistic Ideologies and the Learning of Latinidad (2019); Luis Noe-Bustamante, Lauren Mora & Mark Hugo Lopez, About One-in-Four U.S. Hispanics Have Heard of Latinx, but Just 3% Use It, Pew Research Center (Aug. 11, 2020), https://www.pewresearch.org/hispanic/2020/08/11/about-one-in-four-u-s-hispanics-have-heard-of-latinx-but-just-3-use-it [https://perma.cc/24FX-D9LP] (explaining the origins and uses of the term “Latinx”).Show More Pan-ethnic groups that nevertheless have disparate ethnic groupings, also have the capacity to incorporate intersectional identity drawing from race (e.g., Asian American) and ethnicity (e.g., Korean American).50 50.See Yen Le Espiritu, Asian American Panethnicity 19–20 (1992).Show More

Finding unity within raceXgender references the larger grouping of women of color, a community comprised of women who are also people of color.51 51.Wing, supra note 29, at 7.Show More By highlighting intersectional raceXgender, the women of color grouping centers the experience of those who tend to be marginalized within both communities of people of color (where men of color have more privilege and power) and women (where white women have more privilege and power).52 52.See Michele Wallace, A Black Feminist’s Search for Sisterhood, in All the Women Are White, All the Black Are Men, But Some of Us Are Brave: Black Women’s Studies 7, 10 (Gloria T. Hull, Patricia Bell Scott, & Barbara Smith eds., 1982); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 585 (1990); but see Catharine A. MacKinnon, From Practice to Theory, or What Is a White Woman Anyway?, 4 Yale J. L. & Feminism 13, 18 (1991).Show More

Recently joining the conversation about race and terminology is BIPOC, an acronym for Black, Indigenous, and People of Color.53 53.Garcia, supra note 13; The BIPOC Project, https://www.thebipocproject.org/ [https://perma.cc/GS4R-YQWY] (last visited March 19, 2021) (showing the efforts by activists to center the voices of the Black and Indigenous communities by turning to the term “BIPOC”); Grady, supra note 46.Show More BIPOC was popularized on social media, with some educated elites adopting it and others rejecting its inherent exclusivity, especially without much community engagement.54 54.Garcia, supra note 13.Show More Unlike other terms that grew in usage after months or years of community reflection, BIPOC seemingly erupted on the scene and was taken up by academics and the media in summer 2020 as people flocked to the streets to demand an end to police violence targeting the Black community.55 55.Id.Show More While it is essentially a synonym for people of color, advocates use it to intentionally foreground “Black” and “Indigenous,” arguing that these groups are both foundational to understanding the racial history of the U.S. and often not given the recognition they are due within the larger people of color umbrella.56 56.The BIPOC Project, supra note 53; Chevaz Clarke, BIPOC: What Does It Mean and Where Does It Come From?, CBS News (July 2, 2020, 10:04 AM), https://www.cbsnews.com/news/bipoc-meaning-where-does-it-come-from-2020-04-02 [https://perma.cc/P2NW-5ZW7].Show More The term purposefully creates hierarchies between people of color groups, consciously highlighting the two “to acknowledge that not all people of color face equal levels of injustice.”57 57.Clarke, supra note 56.Show More Thus advocates use BIPOC to further a political purpose: to highlight the experience or agenda of Black and Indigenous people as essential, even though they are part of the overall people of color community. However, it is unclear whether changing the label actually creates a commitment to those groups or simply signals change without meaningful progress.

One common phenomenon between each of these terms—people of color, women of color, and BIPOC—is that by striving for collective unity, distinct groups become less visible. For instance, certain groups within the people of color category are routinely marginalized within the umbrella based on their low visibility or representation, including Filipinos and Puerto Ricans (who also tend to be marginalized within their respective pan-ethnic Asian American and Latinx groups).58 58.See generally Anthony Christian Ocampo, The Latinos of Asia: How Filipino Americans Break the Rules of Race (2016) (exploring how Filipinos understand their racial identity).Show More Additionally, male privilege results in the priorities and voices of women of color sometimes being excluded from the larger people of color community (just as they tend not to be prioritized within the larger women’s movement that focuses primarily on white women).59 59.Wing, supra note 16, at 7; Harris, supra note 52, at 585.Show More Women from particular groups within the women of color community can similarly be marginalized or not prioritized, including queer women and Native American women, whose experiences tend to be overlooked within the larger women of color whole.60 60.See, e.g., Victoria Sutton, Guest Post: Native American Exclusion as a Form of Paper Genocide, LSSSE (July 17, 2020), https://lssse.indiana.edu/blog/guest-post-native-american-exclusion-as-a-form-of-paper-genocide [https://perma.cc/SWH3-NUBQ].Show More

BIPOC is purposeful and unapologetic about this exclusion. Because BIPOC purposefully and by definition centers two particular groups (Black and Indigenous), all of the other non-white groups within the fold are marginalized by design, grouped together in the leftover people of color section of BIPOC. Yet Black and Indigenous people are not at the center of every contemporary racial issue. Furthermore, centering these groups in name when they may be excluded from the data or the issue at hand relegates their importance to the periphery of power, signaling disinterest in their actual inclusion.

III. The Failures of BIPOC

The BIPOC term purposefully highlights two groups within the people of color community—Black and Indigenous.61 61.Garcia, supra note 13.Show More Grouping these two together at the exclusion of others is absolutely appropriate in the rare instances where both groups are at the center of the discussion and the data. Generally, however, doing so not only is incorrect but does damage to both the highlighted communities and those that are pushed to the periphery. This Part first provides some theoretical reasons why the BIPOC term does a disservice to various communities of color and then applies theory to practice by examining a variety of contexts in which BIPOC is clearly not the best term for the case.

A. Why BIPOC Fails, in Theory

Those who have been using BIPOC do so in order to show their value and appreciation for Black and Indigenous people even beyond other groups in the people of color community.62 62.The BIPOC Project, supra note 53.Show More These two populations, that have suffered horrifying atrocities and been brushed aside throughout U.S. history, are purposefully pulled to the front. Yet highlighting them in name in every instance referencing race or racism does not necessarily mean their priorities or interests are being represented; sometimes, these two groups are not even relevant to the matter at hand. There are a number of questions to consider before using BIPOC, the answers to which reveal that prioritizing use of the term in all contexts related to communities of color does more harm than good when pursuing antiracist efforts more generally.63 63.The nascent term is also confusing as many, even progressive voices on race/racism, do not know what it means. As a term that has been used largely by educated elites, others have been clueless about it; apparently, many thought it referenced bisexual people of color. NPR Codeswitch, Is It Time To Say R.I.P. to ‘POC’? (Sept. 30, 2020, 12:22AM), https://www.npr.org/2020/09/29/‌918418825/is-it-time-to-say-r-i-p-to-p-o-c [https://perma.cc/8XYN-K78N].Show More

1. Is BIPOC purely symbolic?

Foregrounding the Black and Indigenous communities within people of color is symbolically significant as it indicates the importance of two groups that have long been sidelined in the United States. However, moving two groups to the front and naming them specifically does not have substantial meaning; foregrounding these groups in name only is what Critical Race Theorist Derrick Bell would call a purely symbolic gesture that may pacify calls for change without making any meaningful progress—and thereby ultimately support the status quo of racial inequities even between communities of color.64 64.See Derrick Bell, Faces at the Bottom of the Well: the Permanence of Racism 19 (1992) (arguing that symbolic progress simply provides oppressed groups with the illusion of change without ceding real power, thus further entrenching racial hierarchies).Show More Today, we might call this virtue signaling—using words or actions not for the purpose of moving the needle toward greater progress, but instead primarily to highlight one’s own moral superiority in taking a stance.65 65.Cambridge Dictionary notes that virtue signaling “is the popular modern habit of indicating that one has virtue merely by expressing disgust or favour for certain political ideas or cultural happenings.” Cambridge English Dictionary, Virtual Signaling Definition, [https://perma.cc/F2SX-YWVX]. This definition from Urban Dictionary is even more direct: “To take a conspicuous but essentially useless action ostensibly to support a good cause but actually to show off how much more moral you are than everybody else.” Urban Dictionary, Virtual Signalling Definition, https://www.urbandictionary.com/define.php?term=Virtue%‌20Signalling [https://perma.cc/85A6-GQWT]; see also Deo, supra note 9, at 20.Show More

Data collection on Native Americans is one common and unfortunate example. If there is little or no data on the Native American population for any given project ostensibly about people of color generally and scholars nevertheless report on “the BIPOC experience,” they are actually naming Indigenous communities as central to a project while simultaneously excluding them altogether from the substance.66 66.Sutton, supra note 60.Show More This symbolic inclusion thus suggests that Native populations are central to whatever inquiry is before us but does not insist or even notice whether anyone actually includes them, let alone center their experiences, perspectives, interests, or priorities. Highlighting groups in name only is thus a greater disservice even than excluding them in fact and in name, because it suggests an upheaval of the status quo while actually serving to support it. Centuries of oppression have been sustained on just this form of “progress” that suggests change in name while maintaining ongoing inequities. There is truth to the accusation that unity can lead to erasure, as discussed earlier, but foregrounding a group in name only is pure virtue signaling, which is even more destructive for long-term equity goals.

2. Should every inquiry center Black and Indigenous communities?

What little information exists about the origins and development of BIPOC suggests that the two groups are highlighted for two main reasons. Proponents of BIPOC stress that Black and Indigenous communities are underscored because they have a foundational relationship to race and racism in the United States; in addition, they argue that not all communities of color have suffered equally, so those who have endured the most should be put first.67 67.See Garcia, supra note 13; The BIPOC Project, supra note 53; Clarke, supra note 56.Show More

These rationales rely on two problematic assumptions that, when investigated even briefly, reveal a shaky foundation. First, it is unfounded and counterproductive to assert that the harms of one group are paramount while others are relatively less important; doing so engages in the “Oppression Olympics,” which is “an evocative term to describe intergroup competition and victimhood.”68 68.Ange-Marie Hancock, Solidarity Politics for Millennials: A Guide to Ending the Oppression Olympics 4 (2011).Show More Ranked suffering as a reason to support the BIPOC term relies on comparing the relative oppression of all racial/ethnic groups in the U.S. and concluding that Black and Native peoples should be prioritized in name because they have suffered greater harm than all others. Those who use BIPOC embrace Oppression Olympics by crowing the winners and naming them first because they have suffered the most. This is dangerous for individual groups—both those whose oppression is erased and those who are the supposed winners—as well as destructive for antiracism efforts generally.

Second, even if all advocates agreed that Black and Indigenous people have historically suffered worse and more significant harms than any other racial/ethnic group, that may not justify centering them now by name when referencing all people of color today. There are clear instances of racism that have little or no direct impact on Black or Indigenous communities. At those times, the experiences of people from those communities should not be centered, just as those who are most affected should not be sidelined.69 69.Half a dozen clear examples of race and racism that are not centered on Black and Indigenous communities are presented infra in Part III.B.Show More Using the BIPOC term to reference past harms, especially those endured by Black and Indigenous peoples, could be useful; but assuming a need to prioritize in every current conversation about race, these two groups that have suffered unspeakable historic harms and continue to face oppression today—as do other groups—is misguided. The purposeful sidelining of Latinx, Asian American, Arab American, and other communities of color does not signal progress toward racial justice. Instead, marginalization of these groups promotes racial triangulation, the purposeful hierarchical placement of Asian Americans (and perhaps others) between Black and white with the effect of dividing communities of color and diluting their collective power.70 70.Claire Jean Kim, The Racial Triangulation of Asian Americans, 27 Politics and Society 105, 107 (1999).Show More Rather than feed into that structure, attention to intersectional characteristics and especially recognizing similarities between disparate groups and drawing strength and solidarity from them may promote antiracism, help ameliorate past wrongs, and “ultimately help[] us overcome the Oppression Olympics.”71 71.Id.; Hancock, supra note 68, at 4.Show More

3. Does a historical focus promote contemporary antiracism?

There is no doubt that the foundations of race and racism in the U.S. draw directly from the enslavement of Black people and the attempted genocide of Indigenous peoples. At the same time, race and racism are constantly evolving, with racial projects shifting over time and racial formation always in flux.72 72.Michael Omi & Howard Winant, Racial Formation in the United States (3rd ed. 2015).Show More Centuries of oppression against people of color have revealed various contexts in which even the law has been used to subjugate communities of color in order to preserve power in the hands of the white male elite.73 73.The history of legal support for white privilege is explored in greater depth in Deo, supra note 9, manuscript at 6-9 (in progress).Show More Prioritizing historical discrimination, even chapters as atrocious as slavery and genocide, may not fit with every current racial project or application. At times when there are parallels, these should be noted and highlighted. Drawing a connection to historical atrocities may even reveal the ways in which certain efforts are truly contemporary avatars of age-old racism or discrimination.

Yet different groups today also face different pressures. Although contemporary acts of oppression may not rise to the level of past horrors, they are independently horrific and not necessarily derivative of past atrocities. Just as more covert bias has replaced overt oppression in many acts of contemporary discrimination, racism remains in spite of its shifting form.74 74.Omi & Winant, supra note 72, at 39­–46.Show More Current oppression may not tie directly to slavery or genocide, but manifests in the form of violent hate crimes and xenophobic dehumanizing immigration policies. History will always provide significant context for contemporary racism, but it should not define (in name or otherwise) current racial challenges or acts of racial resistance.

B. When BIPOC Misses the Mark, in Practice

In addition to the broad strokes outlined above illustrating the theoretical limitations of BIPOC, the term also distorts the realities of communities of color in practice. In various instances, using the term BIPOC as a synonym for people of color is not just incomplete or imperfect, but also substantively, empirically, and historically incorrect as well as detrimental. This Part introduces a series of contemporary racial contexts where the name BIPOC, if used, would do more harm than good.75 75.The contexts included in this Section are clear examples drawing from contemporary racial issues in the U.S. where the BIPOC term is not the most useful; future work should apply this thesis to more complex situations that are less clear-cut to determine whether the argument holds. See, e.g., Deo, supra note 9.Show More Under these examples, the term itself does not fit the data/community/conclusion under discussion. In these instances, it is better to use the term people of color, or in other cases to draw attention to the community of women of color, or in still other situations to name the particular race or even raceXgender groups most affected rather than foist them inappropriately under a BIPOC umbrella. Clear examples of how BIPOC can be misleading, confusing, or otherwise damaging are explored next.

1. Managing COVID-19

Discussing the effects of COVID-19 “on BIPOC communities” pretends that we have statistics on Native Americans, when in truth it centers the group in name while ignoring their omission from the data. Communities of color as a whole, and Black and Brown communities in particular, have been unduly impacted by the effects of COVID-19.76 76.Harald Schmidt, Lawrence O. Gostin & Michelle A. Williams, Is It Lawful and Ethical to Prioritize Racial Minorities for COVID-19 Vaccines?, 324 JAMA 2023, 2023 (2020) (“[T]he mortality rate relative to population size is 3.4-fold higher among Black individuals . . ., 3.3-fold higher among Indigenous and Latino communities . . ., 2.9-fold higher among Pacific Islander individuals . . ., and 1.3 higher among Asian [American] populations . . . .”); Harmeet Kaur, The Coronavirus Pandemic Is Hitting Black and Brown Americans Especially Hard on All Fronts, CNN (May 8, 2020, 8:43 PM), https://www.cnn.com/2020/05/08/us/‌coronavirus-pandemic-race-impact-trnd/index.html [https://perma.cc/ZZN4-NLVA].Show More The intersection of race and class is especially salient here as people of color communities with fewer economic resources have had a disproportionate share of infections, hospitalizations, and deaths.77 77.Schmidt, Gostin & Williams, supra note 76, at 2023 (discussing priority vaccines for communities of color because COVID-19 “has disproportionately affected racial minorities in the United States resulting in higher rates of infection, hospitalization, and death”).Show More While those in the Black and Latinx communities have suffered grievous harm, the pandemic may be wreaking even greater devastation on Native American populations, although we do not have reliable data to confirm this conclusion.78 78.Lizzie Wade, COVID-19 Data on Native Americans is ‘A National Disgrace.’ This Scientist Is Fighting to Be Counted, Science (Sept. 24, 2020, 12:20PM), https://www.sciencemag.org/news/2020/09/covid-19-data-native-americans-national-disgrace-scientist-fighting-be-counted [https://perma.cc/AXL2-YVQN].Show More Current research suggests that “Native Americans and Alaskan Natives are four times more likely to be hospitalized from COVID-19.”79 79.Sarah Blake Morgan, Native Americans Embrace Vaccine, Virus Containment Measures, AP News (February 17, 2021), https://apnews.com/article/native-americans-coronavirus-vaccine-9b3101d306442fbc5198333017b4737d.Show More In the past few months, the media has highlighted how some Native American communities have successfully vaccinated virtually all members,80 80.See Nora Mabie, Tribes’ Vaccination Effort Proving To Be a Big Success by Emphasizing Elders and Community, Great Falls Tribune (March 23, 2021, 6:00AM), https://www.greatfallstribune.com/story/news/2021/03/23/montana-native-american-tribes-see-successful-covid-19-vaccine-rollout/4801837001/ [https://perma.cc/KX8E-S94U], (“The Blackfeet Nation has successfully vaccinated more than 95% of its eligible population.”); Harmeet Kaur, Tribal Health Providers Have Figured Out the Key to Covid-19 Vaccine Success. Here’s Their Secret, CNN (February 26, 2021, 8:16AM), https://www.cnn.com/‌2021/02/09/us/tribal-health-providers-covid-vaccine-trnd/index.html [https://perma.cc/JP94-KX4N].Show More while others struggle to reach the undecided.81 81.Jack Healy, Plenty of Vaccines, but Not Enough Arms: A Warning Sign in Cherokee Nation, N.Y. Times (March 16, 2021), https://www.nytimes.com/2021/03/16/us/vaccines-covid-cherokee-native-americans.html [https://perma.cc/EB2A-6F8F].Show More There is significant misinformation and missing information.

Researchers do know that COVID-19 “has taken a disproportionate toll on many Indigenous communities in the United States,” yet the “full impact” of the disease on Native Americans remains unclear based on “racial misclassification and the exclusion of Indigenous communities from data sets and analyses used to make health policy decisions.”82 82.Wade, supra note 78.Show More Using BIPOC would not only be incorrect but also intentionally misleading, as the language implies that Native Americans are central to the data, when in fact they are missing. Ideally, public officials would collect that data and report it along with data on other racial/ethnic groups, but in the absence of data on Native Americans, it is clearly better to acknowledge that the group is not included rather than pretend they are by foregrounding them in name only. The data and information we do have suggest that culture, tradition, following the example of elders, and linguistic reasons are driving vaccine uptake; none of these seem critical for efforts to gain vaccine trust in the Black community, negating the need to group these communities together.83 83.Caroline Radnofsky, Matteo Moschella & Corky Siemaszko, Native Americans Use Culture and Community to Gain Tribes’ Trust in Covid Vaccine, NBC News (Feb. 3, 2021, 6:32PM), https://www.nbcnews.com/news/us-news/native-americans-use-culture-comm‌unity-gain-tribes-trust-covid-vaccine-n1256647 [https://perma.cc/M2TX-LQWA]; Kaur, supra note 80.Show More

Another group disproportionately affected by the coronavirus is Filipino nurses—not nurses as a whole, not people of color generally, not even Filipinos as a group, but Filipino nurses specifically.84 84.National Nurses United, Sins of Omission 12 (2020), https://www.nationalnursesunited.‌org/sites/default/files/nnu/graphics/documents/0920_Covid19_SinsOfOmission_Data_Report.pdf [https://perma.cc/YZ3W-MLXV]. There is likely a raceXgender effect here too, with greater numbers of Filipinas dying of COVID-19 than even their male counterparts.Show More As of September 2020, thirty-two percent of the registered nurses (RNs) who had died of COVID-19 were Filipino, although Filipinos comprise just four percent of RNs in the U.S.85 85.Id. at 5.Show More Centering Black and Indigenous populations in this conversation—when even a majority (fifty-four percent) of RNs of color who have died of COVID-19 are Filipino—does a disservice to Filipinos by rendering them invisible, lumping them into “other people of color,” while highlighting Black and Indigenous people who are neither the most relevant nor the most impacted in this scenario.86 86.Id.Show More

Pretending that these unique intersectional and historically-based experiences affect Black and Indigenous people in a deeper way than other people of color is disingenuous. COVID-19 has affected Black people differently than it has the Indigenous people—though both communities have suffered terrible consequences due to various structural constraints and limitations. However, grouping them together as BIPOC implies that the Black experience is similar to the Indigenous one, when in fact they are quite different; it also ignores the ways in which Filipinos and others carry a disproportionate share of the burden of deaths among nurses. Instead, journalists, advocates, and others should specify the individual groups involved and impacted in order to honestly report on the experiences of those affected by the pandemic within communities of color.

2. Health Disparities

Before COVID-19, decades of research have documented health disparities between whites and non-whites, especially focused on negative health outcomes for Black patients.87 87.John F. Dovidio and Samuel L. Gaertner, Aversive Racism, in Advances in Experimental Social Psychology 2 (M.P. Zanna ed., 2004); Louis A. Penner, et al., The Experience of Discrimination and Black-White Health Disparities in Medical Care, 35 J. Black Psych. 180, 181 (2009).Show More In comparison, there is little research documenting health effects of Native Americans who are engaged in similar healthcare settings and experiences as non-Native groups—again rendering the BIPOC term inappropriate in this context.88 88.Mary Smith, Native Americans: A Crisis in Health Equity, American Bar Association, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-state-of-healthcare-in-the-united-states/native-american-crisis-in-health-equity [https://perma.cc/UJ2S-BF23].Show More Furthermore, this year under COVID-19, researchers have documented specific negative health outcomes for Black and Latina pregnant women in certain populations.89 89.Leila Goldstein, Latina and Black Pregnant Women Show High Rates of COVID-19 in Southwest Ohio, WOSU Public Media (Jul. 14, 2020), https://radio.wosu.org/post/latina-and-black-pregnant-women-show-high-rates-covid-19-southwest-ohio#stream/0 [https://perma.cc/D3FM-T8EU].Show More The documented populations with increased COVID-19 exposure are limited to two particular raceXgender groups: Black women and Latinas. It would be incorrect to call this a problem affecting the healthcare of Black people generally or the Latinx community as a whole, as men are not pregnant and thus not affected. Similarly, research does not suggest that Asian American women or others beyond the two groups studied have endured similar negative health effects—meaning that even women of color would not be as precise a term, let alone people of color. As with health disparities generally, the little data available on Native Americans means that centering them by name using BIPOC would actually do a disservice to the community, representing purely symbolic inclusion through virtue signaling without actual knowledge of effects on the Indigenous community.

3. Contemporary Hate Crimes

Beyond health effects, COVID-19 and political responses to the coronavirus caused increases in hate crimes against particular populations throughout the U.S. in 2020 and 2021.90 90.Stop AAPI Hate released a report in August 2020 showing increases in hate crimes against Asian Americans and Pacific Islanders since March 19, 2020. Stop AAPI Hate, Stop AAPI Hate National Report 3.19.20 – 2.28.21, https://secureservercdn.net/104.238.69.231/a1w.90d. ‌myftpupload.com/wp-content/uploads/2021/03/210312-Stop-AAPI-Hate-National-Report-.pdf [https://perma.cc/W3TJ-FAAU]; Kimmy Yam, Anti-Asian Hate Crimes Increased by Nearly 150% in 2020, Mostly in N.Y. and L.A., New Report Says, NBC News (March 9, 2021, 3:37PM), https://www.nbcnews.com/news/asian-america/anti-asian-hate-crimes-increased-nearly-150-2020-mostly-n-n1260264 [https://perma.cc/738D-D9ML]; Seashia Vang, US Government Should Better Combat Anti-Asian Racism, More than 1,000 COVID-19 Related Incidents Reported, Human Rights Watch Dispatches (Apr. 17, 2020, 10:00AM), https://www.hrw.org/news/2020/04/17/us-government-should-better-combat-anti-asian-racism# [https://perma.cc/TF9C-BUDV].Show More Specifically targeted—through acid attacks, beatings, racial slurs, and workplace discrimination—were people who are Chinese, Chinese American, or those who were mistaken by their assailants as having Chinese ancestry.91 91.Stop AAPI Hate reports that 40% of survivors had Chinese ancestry, the largest ethnic group affected. As these attacks depend on external identification, the “Asian” label based on phenotype was likely used as a proxy for “Chinese” and resulted in victimization. Stop AAPI Hate, supra note 90 at 1; Vang, supra note 90.Show More The recent killing of Asian American women specifically foregrounds violence based specifically on raceXgender identity, not about people of color, women of color, and definitely not Black and Indigenous people.92 92.Yam, supra note 90 (revealing that “while [hate] crimes in 2020 decreased overall by 7 percent, those targeting Asian people rose by nearly 150 percent”).Show More Many news articles made a direct connection between high profile politicians calling COVID-19 the “Chinese virus,” “Kung flu,” or other racialized terms and heightened animosity against Asian Americans, especially from whites.93 93.Vang, supra note 90; Hannah Miao, Lawmakers Call for Change in Covid Rhetoric Amid Rise in Violence Against Asian Americans, CNBC (March 18, 2021, 5:36PM), https://www.cnbc.com/2021/03/18/lawmakers-call-for-change-in-covid-rhetoric-amid-violence-against-asian-americans.html [https://perma.cc/9886-4S9S].Show More These attacks are not stand-alone acts of violence but are tied to a long history of Chinese exclusion and the hyper-sexualization of Asian and Asian American women.94 94.Harmeet Kaur, Fetishized, Sexualized and Marginalized, Asian Women Are Uniquely Vulnerable to Violence, CNN (March 17, 2021, 8:22PM), https://www.cnn.com/2021/‌03/17/us/asian-women-misogyny-spa-shootings-trnd/index.html [https://perma.cc/MH2B-XMK5].Show More They also draw from the racial triangulation inherent in perceptions of Asian Americans as the “model minority” but nevertheless perpetually foreign.95 95.Kim, supra note 70, at 107–08.Show More

Black and Indigenous people did not experience a rise in hate crimes against them in 2020 because they were not targeted for spreading the coronavirus in the U.S.96 96.In fact, hate crimes decreased for most groups in 2020. Yam, supra note 90.Show More Speaking about this increase in hate crimes against Asian Americans as a BIPOC issue would be incorrect. It would be devastating as well as inaccurate to center Black and Indigenous communities in this conversation, which is not about them or their suffering. Furthermore, using the BIPOC term in this instance would do a disservice to the very Asian Americans who are most affected by these attacks by erasing them from the narrative—relegating them to one of the many invisible remnant people of color groups within BIPOC rather than singling them out as the primary targets of these crimes. Instead, these crimes tie directly to the perception of Asian Americans as forever foreign, un-American, outsiders.97 97.Angelo N. Ancheta, Race, Rights, and the Asian American Experience 16 (1998).Show More

Similarly, increases in hate crimes against Arab Americans and South Asian Americans in the immediate aftermath of the terrorist attacks of September 11 should not now be remembered as a broad BIPOC problem; clearly, particular groups within the umbrella of people of color were targeted and none are highlighted by using the BIPOC moniker.98 98.See Bryan D. Byers & James A. Jones, The Impact of the Terrorist Attacks of 9/11 on Anti-Islamic Hate Crime, 5 J. of Ethnicity in Crim. Just. 43, 43 (2007) (“A statistically significant increase in anti-Islamic hate crime occurred after 9/11 . . . .”); Post 9-11 Backlash, SAALT, https://saalt.org/policy-change/post-9-11-backlash [https://perma.cc/L9SR-XWFB] (“Since Sep­tem­ber 11th, [2001,] South Asian, Sikh, Mus­lim, and Arab Amer­i­cans have been the tar­gets of numer­ous hate crimes, as well as employ­ment dis­crim­i­na­tion, bul­ly­ing, harass­ment, and pro­fil­ing.”).Show More The increase in hate crimes from two decades ago affected neither the Black nor the Indigenous communities in the way in which it terrorized South Asian, Arab American, and Muslim groups.99 99.Cynthia Lee, Hate Crimes and the War on Terror (2008) (“In the days, weeks, and months immediately following the 9/11 attacks, Arab-Americans, South Asian-Americans, Muslim-Americans, and Sikh-Americans were the targets of widespread hate violence”); Elly Belle, Yes, 9/11 Did Cause an Increase in Islamophobia, Refinery 29 (Sept. 11, 2020, 2:39PM), https://www.refinery29.com/en-us/2020/09/10019797/islamophobia-after-911-september-11-hate-crimes [https://perma.cc/C8F5-DWFW] (noting hate crimes against Muslims jumped from 28 in 2000 to 481 in 2001).Show More Utilizing BIPOC terminology when discussing these hate crimes would further marginalize the very victims most impacted by those acts of violence by purposefully centering two groups (Black and Indigenous people) whose experiences are not actually central to the hate incidents or ongoing harms.

4. Police Violence

Black men are more likely than any other raceXgender group to experience violence at the hands of the police.100 100.Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 Boston U. L. Rev. 951, 1007-08 (2020).Show More They are “more than twice as likely to be killed by police than are persons of other racial or ethnic groups . . . .”101 101.Id. at 951.Show More As such, police violence is not a BIPOC problem.

While there are a number of issues involving Native Americans and law enforcement—involving tribal sovereignty, jurisdictional concerns, discretionary measures, and enforcement—the experiences of Indigenous people interacting with police are not the same as or even similar to those of Black men.102 102.See Addie C. Rolnick, Recentering Tribal Criminal Jurisdiction, 63 UCLA L. Rev. 1638, 1647 n.29 (2016) (discussing various “grey areas” between criminal law and tribal jurisdiction “neither Congress nor the Supreme Court has directly addressed”); Jeffery T. Ulmer & Mindy S. Bradley, Criminal Justice in Indian Country: A Theoretical and Empirical Agenda, 2 Ann. Rev. Criminology 337, 337 (2019) (discussing “the complexities of criminal jurisdiction in Indian Country”).Show More Black women also are targets of police violence, as we know from the state-sanctioned killings of Breonna Taylor, Sandra Bland, Attatiana Jefferson, and dozens of others.103 103.Brianna Scott, Author: Black Women’s Experiences with Police Brutality Must Be ‘Invisible No More’, NPR (July 16, 2020, 5:37PM), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/16/892015743/author-black-womens-experiences-with-police-brutality-must-be-invisible-no-more [https://perma.cc/UN3P-5ND7]Show More Yet the crisis that is police violence against Black men is not only racial but involves raceXgender biases, stereotypes, and life ending outcomes. No other group has suffered as much targeting of state-sanctioned violence as Black men.104 104.Tia Sherée Gaynor, Seong C. Kang, & Brian N. Williams, Segregated Spaces and Separated Races: The Relationship Between State-Sanctioned Violence, Place, and Black Identity, 7 The Russell Sage Found. J. of the Soc. Sci. 50 (2021).Show More Rather than group them with Black women and Indigenous men and women—as would be the case if we centered them through BIPOC terminology—advocates supporting Black Lives Matter and other efforts for police reform should continue to raise awareness that this should be a concern for all people though it affects, first and foremost, Black men.105 105.Williams, Mezey & Singh, supra note 18.Show More Using BIPOC here, as elsewhere, would be both incorrect and inappropriate. Continuing to center Black Lives Matter, which recognizes the challenges facing both Black men and Black women in police interactions, is critical to the effort. Changing the narrative to BIPOC Lives Matter would clearly be counterproductive as well as improper in dealings with this and other state-sanctioned violence.

5. Mass Incarceration

Over the past two decades, advocates have drawn significant attention to the mass incarceration and resulting disenfranchisement of Black men—not men of color, not people of color, not even Black women to the same degree.106 106.See Michelle Alexander, The New Jim Crow 19 (2020).Show More “Black men are six times as likely to be incarcerated as white men,” a disparity larger than any other raceXgender group.107 107.The Sentencing Project, Criminal Justice Facts (2020), https://www.sentencingproject.‌org/criminal-justice-facts [https://perma.cc/4Y2H-4VZY].Show More

As with police violence, it would be disingenuous to talk about mass incarceration as an issue affecting those in the BIPOC community. Doing so would center one group (Black people) appropriately and another group (Indigenous people) inappropriately, since the little data we have on Indigenous incarceration rates suggest that while over-incarceration is a problem, the causes and context involving the Indigenous population are very different from those facing Black men.108 108.Roxanne Daniel, Since You Asked: What Data Exists about Native American People in the Criminal Justice System?, Prison Policy Initiative (Apr. 22, 2020) (“While Census data reveals that Native populations are overrepresented in the criminal justice system, other information that could shed more light on the issue is sparse”), available at: https://www.prisonpolicy.org/blog/2020/04/22/native [https://perma.cc/S57V-HGUB].Show More Latino men, who are twice as likely to be incarcerated as white men, are facing a crisis as well though it is different from what their Black male counterparts endure.109 109.The Sentencing Project, supra note 107.Show More Instead, because the raceXgender group targeted by criminal justice policies is Black men, that is the community that should specifically be named by allies, advocates, and academics who seek to draw attention to the problem.

6. Current Immigration Policies

The immigration context as a whole is one that cannot draw in a straightforward fashion from BIPOC terminology and still do justice to the groups most affected. A majority of recent immigrants to the U.S. are from Asia and Latin America, neither of which are foregrounded in BIPOC language. Why then would advocates for immigration reform or racial justice in the immigration context talk about the experiences of people from the BIPOC community? Instead, Latinx and Asian Americans should be highlighted in most discussions related to historical or contemporary U.S. immigration policy.110 110.While migration from the African continent to the U.S. has increased significantly in the past few decades, it is a comparatively small fraction of overall immigration; Black immigrants represent about 3% of the U.S. foreign-born population. See Randy Capps, Kristen McCabe & Michael Fix, Diverse Streams: African Migration to the United States, 2 Migration Policy Institute (2012), https://www.migrationpolicy.org/pubs/CBI-AfricanMigration.pdf [https://perma.cc/DRA9-FLF4].Show More

There are of course specific contexts even within the immigration arena where it is even more critical that we carefully name the groups affected and center their experiences over all others. Family separation—the policy whereby children were separated from parents applying for asylum or seeking immigration at the U.S.-Mexico border—is a prime example.111 111.Teo Armus & Maria Sacchetti, The Parents of 545 Children Separated at the Border Still Haven’t Been Found. The Pandemic Isn’t Helping, Wash. Post (Oct. 21, 2020, 6:28PM), https://www.washingtonpost.com/nation/2020/10/21/family-separation-parents-border-covid [https://perma.cc/3NNU-AQJW].Show More Of the 545 children who were taken from their families as early as July 2017 and whose parents cannot now be found, over two-thirds are from Central America; many are currently living with sponsors or extended family members in the U.S., most of whom are likely Latinx as well.112 112.Some of these children may also have Indigenous roots, though in a very different context, history, and environment than Native Americans.Show More Clearly this is an issue that directly affects the Latinx community (a group with significant intra-racial diversity even with regard to ethnicity, language, culture, and other characteristics) over all others, even other immigrants; family separation is not an issue or experience that should center Black or Indigenous Americans over the community that is currently suffering the greatest harm and has the most to gain from a current reckoning and potential reformation.113 113.BIPOC would also be misleading in the immigration context when referencing how U.S. foreign policy prevented people from many predominantly Muslim nations from lawfully entering the country between 2017 and 2021. Shoba Sivaprasad Wadhia, National Security, Immigration and the Muslim Bans, 75 Wash. & Lee L. Rev. 1475 (2018); Proclamation No. 10141, 86 Fed. Reg. 7005 (Jan 20, 2021).Show More

Conclusion

In 2020, we witnessed a racial reckoning in the wake of thousands in the streets protesting police violence against the Black community. It remains to be seen whether there will be a resulting reformation, and, if so, whether it will manifest as small but meaningful steps in line with past anti-subordination principles or a long overdue restructuring of the racial hierarchy on the path toward antiracism. Any reformation must pay careful attention to the language we use—including changes in terms involving race, racism, and resistance. There must be opportunities for communities—people of color collectively and separately—to navigate new terms and advocate for how they themselves prefer to be identified.114 114.This Essay lays a foundation for how advocates, academics, and allies should use racial language; it does not prescribe how individuals identify themselves.Show More How we name things is a powerful marker of our priorities and preferences. For instance, while efforts to advance diversity remain, they are now increasingly supplemented with meaningful attention to promote antiracist action. Those who previously pushed for people from diverse backgrounds to have a seat at the table are now demanding their voices be heard and included in decision making.115 115.Deo, supra note 10.Show More

Yet we must safeguard against modifications in language that take hold without advancing real progress. Change may not mean evolution or forward progress. New terms are not always better, especially without grassroots efforts or meaningful reflection among community members. When considering language that groups people from different backgrounds together, the term BIPOC is not better than those previously in use. Using the name people of color gives non-whites from all backgrounds an opportunity to band together when considering issues involving them all, and especially differences between them as a group as compared to whites. Similarly, allies, advocates, and academics who seek to incorporate the critical intersection of raceXgender in particular instances should continue to utilize the term women of color. When individual groups should be highlighted in particular contexts, those should be named specifically instead of using people of color, women of color, or BIPOC.

Using the term BIPOC, however, creates a hierarchy within people of color preferring two groups that, while foundational to U.S. race relations, may not be foundational to every contemporary project or discussion involving race. Furthermore, although the term centers Black and Indigenous people in name, these groups may nevertheless remain at the periphery of power and inclusion—for instance, as continuously occurs when Native Americans are excluded from the data on empirical projects that then seek to reach sweeping generalized conclusions. Virtue signaling—making changes only in name and for the express purpose of highlighting one’s morality—does not indicate progress.

Instead of blindly using the term BIPOC, allies, academics, and advocates should think critically about the issue they seek to promote, consider the data or arguments they have to support their efforts or conclusions, and utilize the term that best fits their needs. Sometimes this will be people of color, when considering how the experiences of people of color as a whole differ from those of whites. Other instances call for the use of women of color, especially when highlighting differences by raceXgender and drawing attention to the experiences of women (as distinct from men of color) from a variety of non-white backgrounds (as distinct from white women).

This Essay has demonstrated instances where BIPOC clearly fails. It can be misleading, overly simplistic, and even incorrect when centering the experiences of Black and Indigenous communities over others within the people of color umbrella. This belittles those who are virtually erased, ignores the realities of the issue under review, and harms the communities it purports to highlight by centering them in name only. It is critical that academics, advocates, and allies utilize language that is better than BIPOC, as is evident after applying the thesis to the clear examples outlined earlier where particular groups, besides Black and Indigenous, must be foregrounded.

The next step in future work is to apply the main thesis presented here—that individual groups should be named and highlighted depending on the context, data, or argument, rather than using the BIPOC term for every racialized situation—to more complex and complicated circumstances. It is easy to see how BIPOC should not be used when discussing immigration policy or hate crimes against Asian Americans during the coronavirus pandemic, but what about the more challenging context of legal education, considering how students from different backgrounds perceive issues of diversity, or how raceXgender background affects law faculty experiences?116 116.The thesis that using the BIPOC term does not work in particular situations is applied to the more complicated context of legal education in Deo, supra note 9.Show More Analyzing this thesis through these and other more nuanced examples will illustrate its broader reach and application.

In both simple and complex cases, grouping disparate peoples together can serve to increase power and political clout; yet it can also erase those who are minorities within the groups. To avoid that risk in particular circumstances, it is sometimes best to disaggregate data and separate groups. The most effective use of language is when allies, advocates, and academics use the names of the groups actually included and centered in the arguments themselves, paying close attention to the context and the communities involved and utilizing matching terms. Although BIPOC fails, there are other paths forward that will lead to more meaningful change.

  1. * JD, PhD, Professor of Law, Thomas Jefferson School of Law; William H. Neukom Fellows Research Chair in Diversity and Law, American Bar Foundation (ABF); Director, Law School Survey of Student Engagement (LSSSE). This Essay benefitted from feedback from and conversations with Guy-Uriel Charles, Luis Fuentes-Rohwer, Anil Kalhan, Taleed El-Sabawi, Kevin Johnson, Fred Smith, Louise Melling, Raquel Muniz, Orin Kerr, Elizabeth Mertz, Gautam Hans, Kirsten Matoy Carlson, Efrén Pérez, Franita Tolson, and Shaun Ossei-Owusu. Finally, I am grateful to the Virginia Law Review editorial team, especially Allison Burns, Andrew Tynes, Rachel Slepoi, and Elizabeth Adler. All errors and opinions are my own.

  2. Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/‌2020/07/03/us/george-floyd-protests-crowd-size.html [https://perma.cc/2Q5H-978V].

  3. Daniel Wood, As Pandemic Deaths Add Up, Racial Disparities Persist—And in Some Cases Worsen, NPR (Sept. 23, 2020, 1:01 PM) (“People of color get sick and die of COVID-19 at rates higher than whites and higher than their share of the population.”), https://www.npr.org/sections/health-shots/2020/09/23/914427907/as-pandemic-deaths-add-up-racial-disparities-persist-and-in-some-cases-worsen [https://perma.cc/TZT9-HHZ2].

  4. Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 B.U. L. Rev. 951, 957–58 (2020).

  5. Buchanan, Bui & Patel, supra note 1.

  6. Corporations that donated to antiracist causes include Home Depot, Ubisoft, Apple, Facebook, Intel, and Peloton. Isabel Togoh, Corporate Donations Tracker: Here Are the Companies Giving Millions to Anti-Racism Efforts, Forbes (June 1, 2020, 12:10 PM), https://www.forbes.com/sites/isabeltogoh/2020/06/01/corporate-donations-tracker-here-are-the-companies-giving-millions-to-anti-racism-efforts/?sh=3160129d37dc [https://perma.cc/TL8R-FPXT].

  7. Taking a Knee: Athletes Protest Against Racism Around the World—in Pictures, The Guardian (Aug. 27, 2020, 4:35 PM) (“[A]thletes around the world have been kneeling in support of Black Lives Matter and wearing the phrase on jerseys and T-shirts while NBA players boycotted game five of their playoff series in protest of the police shooting against Jacob Blake”), https://www.theguardian.com/sport/gallery/2020/aug/27/nba-strike-athletes-kneeling-black-lives-matter-protest [https://perma.cc/D8PH-ULBT].

  8. Joey Hadden, How the Top 25 Colleges and Universities in the US Are Responding to the Black Lives Matter Protests, Bus. Insider (June 25, 2020, 12:56 PM), https://www.businessinsider.com/college-top-us-universities-respond-black-lives-matter-protests-2020-6 [https://perma.cc/692G-PJR6].

  9. Jen Kirby, “Black Lives Matter” Has Become a Global Rallying Cry Against Racism and Police Brutality, Vox (June 12, 2020, 7:30 AM) (noting that “[t]he police killing of George Floyd has sparked a worldwide reckoning”), https://www.vox.com/2020/6/12/21285244/‌black-lives-matter-global-protests-george-floyd-uk-belgium.

  10. This Essay introduces these concepts and questions. For more on usage of various terms, limitations of BIPOC, and application to the particular context of legal education, see Meera E. Deo, Beyond BIPOC (in progress 2021) (unpublished manuscript) (on file with author).

  11. See generally Meera E. Deo, The End of Affirmative Action, 100 N. Carolina L. Rev. (forthcoming 2021) (proposing an overhaul of affirmative action policies and suggesting broader inclusion of minority groups by differentiating the experiences of each group and the addition of diversity, equity, and inclusion to existing policies).

  12. Granted, institutions of higher learning have relied on educational diversity as a justification for affirmative action because no other compelling state interests have been deemed constitutional. Meera E. Deo, The Promise of Grutter: Diverse Interactions at the University of Michigan Law School, 17 Mich. J. Race & L. 63, 68–69 (2011).

  13. For more on this project, including the five suggested phases schools should engage with on the path to becoming antiracist, see Danielle M. Conway, Danielle Holley-Walker, Kimberly Mutcherson, Angela Onwuachi-Willig & Carla D. Pratt, Law Deans Antiracist Clearinghouse Project, Ass’n Am. Law Schs., https://www.aals.org/antiracist-clearinghouse/ (last visited Mar. 5, 2021) [https://perma.cc/X3Z5-JHQX].

  14. Sandra E. Garcia, Where Did BIPOC Come From?, N.Y. Times (June 17, 2020), https://www.nytimes.com/article/what-is-bipoc.html [https://perma.cc/H978-PFGG]. The exact origins and sudden popular usage of BIPOC remain unclear, though they are traced in more detail in Beyond BIPOC. Deo, supra note 9, at 18-20.

  15. Who Does the Acronym “BIPOC” Actually Serve?, The Takeaway (June 25, 2020), https://www.wnycstudios.org/podcasts/takeaway/segments/acronym-bipoc-race-language?tab=summary [https://perma.cc/K3UY-ZJQ5]; If podcast: Who Does The Acronym BIPOC Actually Serve?, The Takeaway (June 25, 2020). Both race and ethnicity are fluid (rather than fixed) concepts that change over time and in varying contexts. See, e.g., Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 Harv. C.R.–C.L.L. Rev. 1, 8, 10 (1994).

  16. The discussion on limitations of BIPOC continues in Deo, supra note 9, at 20-22.

  17. Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 9 (2003); see Adrien Katherine Wing, Introduction to Critical Race Feminism: A Reader 1, 7 (Adrien Katherine Wing ed., 2d ed. 2003); 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; Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107, 151 (1976).

  18. Balkin & Siegel, supra note 16.

  19. See Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 12–14 (2011); Jamillah Williams, Naomi Mezey & Lisa Singh, #BlackLivesMatter—Getting from Contemporary Social Movements to Legal Change, 12 Calif. L. Rev. Online 1 ( 2021).

  20. See generally Jonathan Rosa & Nelson Flores, Unsettling Race and Language: Toward a Raciolinguistic Perspective, 46 Language in Soc’y 621 (2017); Jonathan Rosa, Looking Like a Language, Sounding Like a Race: Raciolingustic Ideologies and the Learning of Latinidad (2019).

  21. Gregory Coles, Emerging Voices: The Exorcism of Language: Reclaimed Derogatory Terms and their Limits, 78 C. Eng. 424, 424–25 (2016).

  22. For more on boundaries between groups, including distinctions between “us” vs. “them,” see Fredrik Barth, Introduction to Ethnic Groups and Boundaries 9, 15–16 (Fredrik Barth ed. 1969).

  23. See Carrie Sandahl, Queering the Crip or Cripping the Queer? Intersections of Queer and Crip Identities in Solo Autobiographical Performance, 9 GLQ 25, 26–27 (2003); Robert McRuer, Crip Theory: Cultural Signs of Queerness and Disability 40–41 (2006); Jasmine E. Harris, Reckoning with Race and Disability, 130 Yale L.J.F. (forthcoming 2021).

  24. H. Samy Alim, Introducing Raciolinguistics: Racing Language and Languaging Race in Hyperracial Times, in Raciolinguistics: How Language Shapes Our Ideas about Race 1, 5 (H. Samy Alim, John R. Rickford & Arnetha F. Ball eds., 2016); Alison Crump, Introducing LangCrit: Critical Language and Race Theory, 11 Critical Inquiry in Language Stud. 207, 207 (2014).

  25. Alex Shashkevich, Stanford Experts Highlight Link Between Language and Race in New Book, Stan. News (Dec. 27, 2016), https://news.stanford.edu/2016/12/27/link-language-race-new-book/ [https://perma.cc/YDP7-PJBW].

  26. Id.

  27. See Ben L. Martin, From Negro to Black to African American: The Power of Names and Naming, 106 Pol. Sci. Q. 83, 83 (1991).

  28. Jacquelyn Rahman, The N Word: Its History and Use in the African American Community, 40 J. Eng. Linguistics 137, 137 (2012).

  29. See Crenshaw, supra note 16, at 140 (coining the term).

  30. Wing, supra note 16, at 1, 7.

  31. See Crenshaw, supra note 16; Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1244 (1991). See generally Wing, supra note 16; Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment

    23

    (2d ed. 2000); Evelyn Nakano Glenn, Unequal Freedom: How Race and Gender Shaped American Citizenship and Labor 6–7 (2002).

  32. Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction 58–63 (3d ed. 2017).

  33. Previous scholarship has highlighted how “utilizing the raceXgender nomenclature emphasizes the multifactorial effects of race ‘times’ gender for women of color.” Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia 8 (2019); Meera E. Deo, The Culture of “raceXgender” Bias in Legal Academia, in Power, Legal Education, and Law School Cultures 240, 241 (Meera E. Deo, Mindie Lazarus-Black & Elizabeth Mertz eds., 2019).

  34. Sandahl, supra note 22.

  35. Grutter v. Bollinger, 539 U.S. 306, 328 (2003); Gratz v. Bollinger, 539 U.S. 244, 267 (2003); Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 310 (2013); Fisher v. Univ. of Tex. at Austin (Fisher II), 136 S. Ct. 2198, 2208 (2016); Deo, supra note 10, at 68–72. The defendants in Bakke also argued there were other reasons to support affirmative action—including to increase minority representation among doctors, reduce societal discrimination, and increase service to disadvantaged communities—though none of these were sanctioned by the Court. Meera E. Deo, Affirmative Action Assumptions, 52 UC Davis L. Rev. 2407, 2412-15 (2019).

  36. Sundiatu Dixon-Fyle, Vivian Hunt, Kevin Dolan & Sara Prince, McKinsey & Co., Diversity Wins: How Inclusion Matters 13 (2020), https://www.mckinsey.com/~/‌media/McKinsey/Featured%20Insights/Diversity%20and%20Inclusion/Diversity%20wins%20How%20inclusion%20matters/Diversity-wins-How-inclusion-matters-vF.pdf [https://perma.cc/L7RA-3DT9].

  37. Deo, supra note 10, at 65 n.4 (citing and quoting Grutter, 539 U.S. at 331) (“high-ranking retired officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle [sic] mission to provide national security.’”).

  38. Elizabeth Bodamer, Belonging in Law School (2021) (Ph.D. dissertation, Indiana University) (on file with author).

  39. See Meera E. Deo, Faculty Insights on Educational Diversity, 83 Fordham L. Rev. 3115, 3117 (2015); Deo, supra note 10, at 3.

  40. See, e.g., Meera E. Deo & Chad Christensen, Ind. Univ. Ctr. for Postsecondary Research, 2020 Annual Survey Results: Diversity & Exclusion 6 (2020), https://lssse.indiana.edu/wp-content/uploads/2020/09/Diversity-and-Exclusion-Final-9.29.20.pdf [https://perma.cc/3P3A-FK26].

  41. Ella Washington & Camille Patrick, 3 Requirements for a Diverse and Inclusive Culture, GALLUP (Sept. 17, 2018), https://www.gallup.com/workplace/242138/requirements-diverse-inclusive-culture.aspx [https://perma.cc/A82S-U2MV].

  42. Deo, supra note 10.

  43. Ibram X. Kendi, How to Be an Antiracist 9 (2019).

  44. Chandra L. Ford & Collins O. Airhihenbuwa, Critical Race Theory, Race Equity, and Public Health: Toward Antiracism Praxis, 100 Am. J. Pub. Health S30, S31 (2010).

  45. Kendi, supra note 42, at 23.

  46. Id. at 46–47. See also Michele Goodwin, Complicit Bias: Sexual Harassment and the Communities that Sustain It, Huffington Post (Dec. 11, 2017, 2:18AM) (using a new term “complicit bias” to describe community complicity in sustaining institutional bias and harassment in the workplace), https://www.huffpost.com/entry/complicit-bias-sexual-harassment-and-communities-that_b_5a2e238de4b0d7c3f262244f [https://perma.cc/LLB5-Q7DJ].

  47. Constance Grady, Why the Term “BIPOC” Is So Complicated, Explained by Linguists, Vox (June 30, 2020, 9:10 AM) (“In the 1960s and ’70s, . . . groups like the Black Panther Party for Self Defense and the Brown Berets came together in solidarity as people of color, which was a new instantiation of the idea of people having color.”) (internal quotations omitted), https://www.vox.com/2020/6/30/21300294/bipoc-what-does-it-mean-critical-race-linguistics-jonathan-rosa-deandra-miles-hercules.

  48. Efrén Pérez, (Mis)Calculations, Psychological Mechanisms, and the Future Politics of People of Color, 6 J. Race, Ethnicity & Pol. 33, 36–37 (2021); Efrén O. Pérez, Diversity’s Child: People of Color and the Politics of Identity (manuscript, 3-5) (forthcoming July 2021).

  49. The origin, evolution, benefits, and limitations of the terms “people of color” and “women of color” are covered in greater detail in Deo, supra note 9.

  50. Pérez, supra note 47 (manuscript at 1-4). The term “Latinx” itself has come under scrutiny in this ongoing conversation about preferred language for communities, advocates, and allies. Jonathan Rosa, Looking Like a Language, Sounding Like a Race: Raciolinguistic Ideologies and the Learning of Latinidad (2019); Luis Noe-Bustamante, Lauren Mora & Mark Hugo Lopez, About One-in-Four U.S. Hispanics Have Heard of Latinx, but Just 3% Use It, Pew Research Center (Aug. 11, 2020), https://www.pewresearch.org/hispanic/2020/08/11/about-one-in-four-u-s-hispanics-have-heard-of-latinx-but-just-3-use-it [https://perma.cc/24FX-D9LP] (explaining the origins and uses of the term “Latinx”).

  51. See Yen Le Espiritu, Asian American Panethnicity 19–20 (1992).

  52. Wing, supra note 29, at 7.

  53. See Michele Wallace, A Black Feminist’s Search for Sisterhood, in All the Women Are White, All the Black Are Men, But Some of Us Are Brave: Black Women’s Studies 7, 10 (Gloria T. Hull, Patricia Bell Scott, & Barbara Smith eds., 1982); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 585 (1990); but see Catharine A. MacKinnon, From Practice to Theory, or What Is a White Woman Anyway?, 4 Yale J. L. & Feminism 13, 18 (1991).

  54. Garcia, supra note 13; The BIPOC Project, https://www.thebipocproject.org/ [https://perma.cc/GS4R-YQWY] (last visited March 19, 2021) (showing the efforts by activists to center the voices of the Black and Indigenous communities by turning to the term “BIPOC”); Grady, supra note 46.

  55. Garcia, supra note 13.

  56. Id.

  57. The BIPOC Project, supra note 53; Chevaz Clarke, BIPOC: What Does It Mean and Where Does It Come From?, CBS News (July 2, 2020, 10:04 AM), https://www.cbsnews.com/news/bipoc-meaning-where-does-it-come-from-2020-04-02 [https://perma.cc/P2NW-5ZW7].

  58. Clarke, supra note 56.

  59. See generally Anthony Christian Ocampo, The Latinos of Asia: How Filipino Americans Break the Rules of Race (2016) (exploring how Filipinos understand their racial identity).

  60. Wing, supra note 16, at 7; Harris, supra note 52, at 585.

  61. See, e.g., Victoria Sutton, Guest Post: Native American Exclusion as a Form of Paper Genocide, LSSSE (July 17, 2020), https://lssse.indiana.edu/blog/guest-post-native-american-exclusion-as-a-form-of-paper-genocide [https://perma.cc/SWH3-NUBQ].

  62. Garcia, supra note 13.

  63. The BIPOC Project, supra note 53.

  64. The nascent term is also confusing as many, even progressive voices on race/racism, do not know what it means. As a term that has been used largely by educated elites, others have been clueless about it; apparently, many thought it referenced bisexual people of color. NPR Codeswitch, Is It Time To Say R.I.P. to ‘POC’? (Sept. 30, 2020, 12:22AM), https://www.npr.org/2020/09/29/‌918418825/is-it-time-to-say-r-i-p-to-p-o-c [https://perma.cc/8XYN-K78N].

  65. See Derrick Bell, Faces at the Bottom of the Well: the Permanence of Racism 19 (1992) (arguing that symbolic progress simply provides oppressed groups with the illusion of change without ceding real power, thus further entrenching racial hierarchies).

  66. Cambridge Dictionary notes that virtue signaling “is the popular modern habit of indicating that one has virtue merely by expressing disgust or favour for certain political ideas or cultural happenings.” Cambridge English Dictionary, Virtual Signaling Definition, [https://perma.cc/F2SX-YWVX]. This definition from Urban Dictionary is even more direct: “To take a conspicuous but essentially useless action ostensibly to support a good cause but actually to show off how much more moral you are than everybody else.” Urban Dictionary, Virtual Signalling Definition, https://www.urbandictionary.com/define.php?term=Virtue%‌20Signalling [https://perma.cc/85A6-GQWT]; see also Deo, supra note 9, at 20.

  67. Sutton, supra note 60.

  68. See Garcia, supra note 13; The BIPOC Project, supra note 53; Clarke, supra note 56.

  69. Ange-Marie Hancock, Solidarity Politics for Millennials: A Guide to Ending the Oppression Olympics 4 (2011).

  70. Half a dozen clear examples of race and racism that are not centered on Black and Indigenous communities are presented infra in Part III.B.

  71. Claire Jean Kim, The Racial Triangulation of Asian Americans, 27 Politics and Society 105, 107 (1999).

  72. Id.; Hancock, supra note 68, at 4.

  73. Michael Omi & Howard Winant, Racial Formation in the United States (3rd ed. 2015).

  74. The history of legal support for white privilege is explored in greater depth in Deo, supra note 9, manuscript at 6-9 (in progress).

  75. Omi & Winant, supra note 72, at 39­–46.

  76. The contexts included in this Section are clear examples drawing from contemporary racial issues in the U.S. where the BIPOC term is not the most useful; future work should apply this thesis to more complex situations that are less clear-cut to determine whether the argument holds. See, e.g., Deo, supra note 9.

  77. Harald Schmidt, Lawrence O. Gostin & Michelle A. Williams, Is It Lawful and Ethical to Prioritize Racial Minorities for COVID-19 Vaccines?, 324 JAMA 2023, 2023 (2020) (“[T]he mortality rate relative to population size is 3.4-fold higher among Black individuals . . ., 3.3-fold higher among Indigenous and Latino communities . . ., 2.9-fold higher among Pacific Islander individuals . . ., and 1.3 higher among Asian [American] populations . . . .”); Harmeet Kaur, The Coronavirus Pandemic Is Hitting Black and Brown Americans Especially Hard on All Fronts, CNN (May 8, 2020, 8:43 PM), https://www.cnn.com/2020/05/08/us/‌coronavirus-pandemic-race-impact-trnd/index.html [https://perma.cc/ZZN4-NLVA].

  78. Schmidt, Gostin & Williams, supra note 76, at 2023 (discussing priority vaccines for communities of color because COVID-19 “has disproportionately affected racial minorities in the United States resulting in higher rates of infection, hospitalization, and death”).

  79. Lizzie Wade, COVID-19 Data on Native Americans is ‘A National Disgrace.’ This Scientist Is Fighting to Be Counted, Science (Sept. 24, 2020, 12:20PM), https://www.sciencemag.org/news/2020/09/covid-19-data-native-americans-national-disgrace-scientist-fighting-be-counted [https://perma.cc/AXL2-YVQN].

  80. Sarah Blake Morgan, Native Americans Embrace Vaccine, Virus Containment Measures, AP News (February 17, 2021), https://apnews.com/article/native-americans-coronavirus-vaccine-9b3101d306442fbc5198333017b4737d.

  81. See Nora Mabie, Tribes’ Vaccination Effort Proving To Be a Big Success by Emphasizing Elders and Community, Great Falls Tribune (March 23, 2021, 6:00AM), https://www.greatfallstribune.com/story/news/2021/03/23/montana-native-american-tribes-see-successful-covid-19-vaccine-rollout/4801837001/ [https://perma.cc/KX8E-S94U], (“The Blackfeet Nation has successfully vaccinated more than 95% of its eligible population.”); Harmeet Kaur, Tribal Health Providers Have Figured Out the Key to Covid-19 Vaccine Success. Here’s Their Secret, CNN (February 26, 2021, 8:16AM), https://www.cnn.com/‌2021/02/09/us/tribal-health-providers-covid-vaccine-trnd/index.html [https://perma.cc/JP94-KX4N].

  82. Jack Healy, Plenty of Vaccines, but Not Enough Arms: A Warning Sign in Cherokee Nation, N.Y. Times (March 16, 2021), https://www.nytimes.com/2021/03/16/us/vaccines-covid-cherokee-native-americans.html [https://perma.cc/EB2A-6F8F].

  83. Wade, supra note 78.

  84. Caroline Radnofsky, Matteo Moschella & Corky Siemaszko, Native Americans Use Culture and Community to Gain Tribes’ Trust in Covid Vaccine, NBC News (Feb. 3, 2021, 6:32PM), https://www.nbcnews.com/news/us-news/native-americans-use-culture-comm‌unity-gain-tribes-trust-covid-vaccine-n1256647 [https://perma.cc/M2TX-LQWA]; Kaur, supra note 80.

  85. National Nurses United, Sins of Omission 12 (2020), https://www.nationalnursesunited.‌org/sites/default/files/nnu/graphics/documents/0920_Covid19_SinsOfOmission_Data_Report.pdf [https://perma.cc/YZ3W-MLXV]. There is likely a raceXgender effect here too, with greater numbers of Filipinas dying of COVID-19 than even their male counterparts.

  86. Id. at 5.

  87. Id.

  88. John F. Dovidio and Samuel L. Gaertner, Aversive Racism, in Advances in Experimental Social Psychology 2 (M.P. Zanna ed., 2004); Louis A. Penner, et al., The Experience of Discrimination and Black-White Health Disparities in Medical Care, 35 J. Black Psych. 180, 181 (2009).

  89. Mary Smith, Native Americans: A Crisis in Health Equity, American Bar Association, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-state-of-healthcare-in-the-united-states/native-american-crisis-in-health-equity [https://perma.cc/UJ2S-BF23].

  90. Leila Goldstein, Latina and Black Pregnant Women Show High Rates of COVID-19 in Southwest Ohio, WOSU Public Media (Jul. 14, 2020), https://radio.wosu.org/post/latina-and-black-pregnant-women-show-high-rates-covid-19-southwest-ohio#stream/0 [https://perma.cc/D3FM-T8EU].

  91. Stop AAPI Hate released a report in August 2020 showing increases in hate crimes against Asian Americans and Pacific Islanders since March 19, 2020. Stop AAPI Hate, Stop AAPI Hate National Report 3.19.20 – 2.28.21, https://secureservercdn.net/104.238.69.231/a1w.90d. ‌myftpupload.com/wp-content/uploads/2021/03/210312-Stop-AAPI-Hate-National-Report-.pdf [https://perma.cc/W3TJ-FAAU]; Kimmy Yam, Anti-Asian Hate Crimes Increased by Nearly 150% in 2020, Mostly in N.Y. and L.A., New Report Says, NBC News (March 9, 2021, 3:37PM), https://www.nbcnews.com/news/asian-america/anti-asian-hate-crimes-increased-nearly-150-2020-mostly-n-n1260264 [https://perma.cc/738D-D9ML]; Seashia Vang, US Government Should Better Combat Anti-Asian Racism, More than 1,000 COVID-19 Related Incidents Reported, Human Rights Watch Dispatches (Apr. 17, 2020, 10:00AM), https://www.hrw.org/news/2020/04/17/us-government-should-better-combat-anti-asian-racism# [https://perma.cc/TF9C-BUDV].

  92. Stop AAPI Hate reports that 40% of survivors had Chinese ancestry, the largest ethnic group affected. As these attacks depend on external identification, the “Asian” label based on phenotype was likely used as a proxy for “Chinese” and resulted in victimization. Stop AAPI Hate, supra note 90 at 1; Vang, supra note 90.

  93. Yam, supra note 90 (revealing that “while [hate] crimes in 2020 decreased overall by 7 percent, those targeting Asian people rose by nearly 150 percent”).

  94. Vang, supra note 90; Hannah Miao, Lawmakers Call for Change in Covid Rhetoric Amid Rise in Violence Against Asian Americans, CNBC (March 18, 2021, 5:36PM), https://www.cnbc.com/2021/03/18/lawmakers-call-for-change-in-covid-rhetoric-amid-violence-against-asian-americans.html [https://perma.cc/9886-4S9S].

  95. Harmeet Kaur, Fetishized, Sexualized and Marginalized, Asian Women Are Uniquely Vulnerable to Violence, CNN (March 17, 2021, 8:22PM), https://www.cnn.com/2021/‌03/17/us/asian-women-misogyny-spa-shootings-trnd/index.html [https://perma.cc/MH2B-XMK5].

  96. Kim, supra note 70, at 107–08.

  97. In fact, hate crimes decreased for most groups in 2020. Yam, supra note 90.

  98. Angelo N. Ancheta, Race, Rights, and the Asian American Experience 16 (1998).

  99. See Bryan D. Byers & James A. Jones, The Impact of the Terrorist Attacks of 9/11 on Anti-Islamic Hate Crime, 5 J. of Ethnicity in Crim. Just. 43, 43 (2007) (“A statistically significant increase in anti-Islamic hate crime occurred after 9/11 . . . .”); Post 9-11 Backlash, SAALT, https://saalt.org/policy-change/post-9-11-backlash [https://perma.cc/L9SR-XWFB] (“Since Sep­tem­ber 11th, [2001,] South Asian, Sikh, Mus­lim, and Arab Amer­i­cans have been the tar­gets of numer­ous hate crimes, as well as employ­ment dis­crim­i­na­tion, bul­ly­ing, harass­ment, and pro­fil­ing.”).

  100. Cynthia Lee, Hate Crimes and the War on Terror (2008) (“In the days, weeks, and months immediately following the 9/11 attacks, Arab-Americans, South Asian-Americans, Muslim-Americans, and Sikh-Americans were the targets of widespread hate violence”); Elly Belle, Yes, 9/11 Did Cause an Increase in Islamophobia, Refinery 29 (Sept. 11, 2020, 2:39PM), https://www.refinery29.com/en-us/2020/09/10019797/islamophobia-after-911-september-11-hate-crimes [https://perma.cc/C8F5-DWFW] (noting hate crimes against Muslims jumped from 28 in 2000 to 481 in 2001).

  101. Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 Boston U. L. Rev. 951, 1007-08 (2020).

  102. Id. at 951.

  103. See Addie C. Rolnick, Recentering Tribal Criminal Jurisdiction, 63 UCLA L. Rev. 1638, 1647 n.29 (2016) (discussing various “grey areas” between criminal law and tribal jurisdiction “neither Congress nor the Supreme Court has directly addressed”); Jeffery T. Ulmer & Mindy S. Bradley, Criminal Justice in Indian Country: A Theoretical and Empirical Agenda, 2 Ann. Rev. Criminology 337, 337 (2019) (discussing “the complexities of criminal jurisdiction in Indian Country”).

  104. Brianna Scott, Author: Black Women’s Experiences with Police Brutality Must Be ‘Invisible No More’, NPR (July 16, 2020, 5:37PM), https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/07/16/892015743/author-black-womens-experiences-with-police-brutality-must-be-invisible-no-more [https://perma.cc/UN3P-5ND7]

  105. Tia Sherée Gaynor, Seong C. Kang, & Brian N. Williams, Segregated Spaces and Separated Races: The Relationship Between State-Sanctioned Violence, Place, and Black Identity, 7 The Russell Sage Found. J. of the Soc. Sci. 50 (2021).

  106. Williams, Mezey & Singh, supra note 18.

  107. See Michelle Alexander, The New Jim Crow 19 (2020).

  108. The Sentencing Project, Criminal Justice Facts (2020), https://www.sentencingproject.‌org/criminal-justice-facts [https://perma.cc/4Y2H-4VZY].

  109. Roxanne Daniel, Since You Asked: What Data Exists about Native American People in the Criminal Justice System?, Prison Policy Initiative (Apr. 22, 2020) (“While Census data reveals that Native populations are overrepresented in the criminal justice system, other information that could shed more light on the issue is sparse”), available at: https://www.prisonpolicy.org/blog/2020/04/22/native [https://perma.cc/S57V-HGUB].

  110. The Sentencing Project, supra note 107.

  111. While migration from the African continent to the U.S. has increased significantly in the past few decades, it is a comparatively small fraction of overall immigration; Black immigrants represent about 3% of the U.S. foreign-born population. See Randy Capps, Kristen McCabe & Michael Fix, Diverse Streams: African Migration to the United States, 2 Migration Policy Institute (2012), https://www.migrationpolicy.org/pubs/CBI-AfricanMigration.pdf [https://perma.cc/DRA9-FLF4].

  112. Teo Armus & Maria Sacchetti, The Parents of 545 Children Separated at the Border Still Haven’t Been Found. The Pandemic Isn’t Helping, Wash. Post (Oct. 21, 2020, 6:28PM), https://www.washingtonpost.com/nation/2020/10/21/family-separation-parents-border-covid [https://perma.cc/3NNU-AQJW].

  113. Some of these children may also have Indigenous roots, though in a very different context, history, and environment than Native Americans.

  114. BIPOC would also be misleading in the immigration context when referencing how U.S. foreign policy prevented people from many predominantly Muslim nations from lawfully entering the country between 2017 and 2021. Shoba Sivaprasad Wadhia, National Security, Immigration and the Muslim Bans, 75 Wash. & Lee L. Rev. 1475 (2018); Proclamation No. 10141, 86 Fed. Reg. 7005 (Jan 20, 2021).

  115. This Essay lays a foundation for how advocates, academics, and allies should use racial language; it does not prescribe how individuals identify themselves.

  116. Deo, supra note 10.

  117. The thesis that using the BIPOC term does not work in particular situations is applied to the more complicated context of legal education in Deo, supra note 9.