Critical Theory Archives - Columbia Law Review

Introduction[footnote]Karl Llewellyn Lecture, Columbia L. Rev., https://www.columbialawreview.org/karl-llewellyn-lecture/ (last visited Feb. 16, 2025).[/footnote] The thing about jail is there is nothing to do. The novelty wears off after about five minutes. My cell was maybe 10-feet long and 8-feet wide, with a toilet, a faucet, and a sink. On the right was a metal bunk bed, and on the left was a third bed. Everything was made of cold metal. The mattress was thin and hard and worn and musky.

I’d been arrested earlier that day at a Walmart in Maplewood, Missouri, about 10 miles outside of Ferguson. I was there as part of Ferguson October, a historic, inspiring, and exhausting weekend of protests against the killing of Mike Brown and the pattern of racialized police violence that spawned it. I had been engaged in this struggle for months. At this particular moment, though, I wasn’t a protester or participant—I was a legal observer.[footnote]Justin Hansford, I Went to Ferguson to Protect the Protesters. I Got Arrested Instead., Vox (Oct. 24, 2014), https://www.vox.com/2014/10/24/7033567/ferguson-protest-arrested-michael-brown [https://perma.cc/W8JZ-9NP2].[/footnote]

I was ostensibly a neutral party who had been arrested and thrown into jail. Any liberal pretensions to neutrality that I had convinced myself of that day perished when confronted with the material reality of police officers who, in the face of five legal observers—three Asian, one Black, and one white—arrested only the one Black legal observer that day—myself.

But just like the nationally recognized journalists who ha[d] been arrested in Ferguson while fulfilling their professional duties, I found that no tradition of professional courtesy could save me from the urge to squelch political dissent.

I had until then never even seen the inside of a jail cell, not even for a field trip.[footnote]Id.[/footnote]

Now, a decade later, we have witnessed horrific events in Gaza that compel many of us to confront our own conscience. The UN Special Committee has recently identified these events as genocide,[footnote]Press Release, Off. of the UN High Comm’r for Hum. Rts., UN Special Committee Finds Israel’s Warfare Methods in Gaza Consistent With Genocide, Including Use of Starvation as Weapon of War (Nov. 14, 2024), https://www.ohchr.org/en/press-releases/2024/11/un-special-committee-finds-israels-warfare-methods-gaza-consistent-genocide [https://perma.cc/Y4DT-WEHP].[/footnote] prompting many to consider whether they should heighten their level of protest, prompting some to consider whether their university’s or workplace’s stance on the issue reflects that institution’s stated values, and prompting me to consider the implications of this historical moment through a critical reading of the First Amendment and the law of protest. Although First Amendment jurisprudence is complex and often obscure,[footnote]See Steven J. Heyman, The Dark Side of the Force: The Legacy of Justice Holmes for First Amendment Jurisprudence, 19 Wm. & Mary Bill Rts. J. 661, 663 (2011) (“[O]ur free speech jurisprudence seems highly conflicted: in some cases, courts interpret the First Amendment to promote its core values, while in others they insist that speech is entitled to protection despite the harm that it may cause to those values.”); John Inazu, First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests, 89 Brook. L. Rev. 1, 2 (2023) (“First Amendment jurisprudence . . . relies on a dizzying array of standards of review, including strict, exacting, intermediate, and rational basis review. And it creates confusing and sometimes contradictory triggers for those standards . . . further complicated by the Court’s normative parsing of different kinds of . . . First Amendment expression and action.”).[/footnote] we can clarify our understanding by framing our reading of protest law with fundamental critical race theory concepts. This will help us make informed assessments of how institutions of power will respond to our activism in the years to come.

Two critical race theory concepts in particular illuminate our understanding of protest law: interest convergence[footnote]See Derrick A. Bell, Jr., Comment, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518, 528 (1980) (“Further progress to fulfill the mandate of Brown is possible to the extent that the divergence of racial interests can be avoided or minimized. . . . [O]ver time, all will reap the benefits from a concerted effort towards achieving racial equality.”).[/footnote] and the critique of liberal notions of colorblindness.[footnote]See Neil Gotanda, A Critique of “Our Constitution Is Color-Blind”, 44 Stan. L. Rev. 1, 7–8 (1991) (describing the liberal practice of “color-blind constitutionalism,” wherein “public officials exercising state powers [must] operate according to the rule that race is not to be considered”).[/footnote] When applied together, these ideas provide us a framework for effectively analyzing the past, present, and future of First Amendment law regarding protests as we enter the era of Project 2025.[footnote]See Heritage Found., Project 2025 Presidential Transition Project, https://www.project2025.org/ [https://perma.cc/34W5-RBVA] [hereinafter Project 2025 Website] (last visited Feb. 17, 2025) (outlining a plan authored by hundreds of conservative scholars and policy experts to “offer[] a menu of policy suggestions to meet our country’s deepest challenges and put America back on track”).[/footnote]

Critical Theory

THE SANKOFA PRINCIPLE IN PROTEST LAW

FAMILY SEPARATION AS SLOW DEATH