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Excerpted from: Katheryn Russell-Brown, Critical Black Protectionism, Blacklivesmatter, and Social Media: Building a Bridge to Social Justice, 60 Howard Law Journal 367 (Winter, 2017) (189 Footnotes) (Full Document)

katheryn russell brownThe O.J. Simpson murder trial exposed America's deep racial divide. In 1994, Simpson, a popular and beloved retired football player, was charged with killing his former wife, Nicole Brown Simpson and her friend Ronald Goldman. The murders were grisly. People across the nation were fascinated by the case. The trial was shown on television and the legal twists and turns were reported on the morning and nightly news. The lawyers, witnesses, and family members of the victims and the defendant became household names. Polls indicated that the country was deeply split along racial lines, with two-thirds of all Whites believing that Simpson was guilty and two-thirds of all African Americans believing that Simpson was not guilty. Following a four-hour deliberation, the jury returned a verdict of not guilty. The aftermath of the acquittal was telling. While most Whites were stunned and angry, most African Americans cheered and celebrated the outcome. Many Blacks viewed the not-guilty verdict as a kind of racial vindication for decades of cases wherein Whites were not held criminally responsible for violent crimes committed against Blacks. The long list of cases includes the 1955 murder of Emmett Till, the 1964 murders of three civil rights workers, Michael Schwerner, Andrew Goodman, and James Chaney, and the 1991 beating of Rodney King.

The Simpson case offers a textbook example of how Black protectionism works. Black protectionism describes the Black community's support for and group embrace of targeted members of the community. This communal protection is triggered when well-known African Americans are placed in the cross hairs of the criminal justice system. Specifically, the Black community pushes back en masse, when one of its elite members has been accused of criminal or ethical wrongdoing. The phenomenon of Black protectionism developed as a group survival strategy. It operates to protect the most successful members of the community and thereby buffer and protect the larger Black community. Black protectionism exemplifies what sociologist Michael Dawson labels “linked fate.” That is, although African Americans are a diverse group, they remain connected in their political attitudes and perceptions of society at large. This is because even with the advancement and success of some members of the group, Blacks still face myriad forms of subordination (e.g., economic, social, educational, and political). The concept of linked fate highlights the connection between self-interest and group interest--as individual African Americans go, so go African Americans as a group.

As noted, in Simpson's case, African Americans were supportive and protective of him. Many believed that there were a number of reasons that he might have been targeted by the justice system, including his race, the fact that his wife was White, or that he was a successful African American. According to these rationales, the charges against Simpson represented an attempt to bring “another Black man down.” Black protectionism was used to pushback against a justice system viewed by many African Americans as racially biased. In this way, O.J. Simpson's acquittal was a “win” for the African American community in that the verdict shed light on systematic racial injustices.

The practice of Black protectionism is a noteworthy sociological phenomenon. It reflects the low levels of trust and faith that African Americans as a group have in the U.S. justice system. Studies consistently indicate that African Americans are the racial group that has the least trust in law enforcement. An analysis of Black protectionism--how it works and its evolution--offers a window into how African Americans perceive and interact with the criminal justice system. It is an effort by African Americans to intervene against what is widely perceived to be a racially-biased justice system. In this way, Black protectionism has been used as a kind of civil rights strategy attempt to interrupt and reject the representation of Black as criminal by the police, by the courts, and by the correctional system. Thus, an understanding of how Black protectionism works, its history and its evolution, provides an incisive barometer of how the African American community views its overall progress and its status within the U.S. justice system. Americans continue to debate whether race relations are improving or growing more divided. Further, an evaluation of the workings of Black protectionism may shed light on what steps are necessary to reduce or temper its use for maximum community effectiveness. At the same time, this discussion considers the likely socioracial impact if these steps are not heeded.

Black protectionism has consistently been available in instances where well-known Blacks have been accused of wrongdoing. However, it appears that something new is afoot. In recent years, there have been several cases indicating that Black protectionism is operating under new rules. It is this “something new” that serves as the focal point for this Article. This analysis of how Black protectionism currently works is framed within a discussion of how Black protectionism has operated in the past. As the discussion makes clear, Black protectionism is now applied more critically, cautiously, and more directly with the goal of improving social conditions for African Americans. This new Black protectionism both gives protection to a larger group of Blacks who need the community's protective cloak and denies it to those who have little to offer the community.

This Article provides a detailed, contemporary examination and critique of the practice of Black protectionism. The discussion focuses on how Black protectionism has evolved over the decades, and whether the changes make it a more useful tool for community empowerment than its applications in previous eras. Its latest iteration, herein labeled Critical Black Protectionism, is assessed and evaluated in light of the increasing use of social media. The analysis is concerned with how the application of Black protectionism has been shaped by the widespread use of social media. In particular, it considers how Critical Black Protectionism determines who counts as Black crime victims in need of the community's voice.

This Article is divided into five parts.

Part I provides an overview of Black protectionism, its roots and evolution. As well, this Part examines how African Americans have used protectionism. This discussion offers a base for analyzing contemporary iterations of Black protectionism.

Part II sets out the step-by-step process of Black protectionism. It details who is eligible for protectionism and the “trigger questions” used to determine whether it is merited in a particular case.

Part III assesses and critiques how Black protectionism has been applied in contemporary cases where African Americans have been accused of criminal or ethical wrongdoing. This section begins with a look at the sexual assault allegations against Bill Cosby and the criminal cases involving Ray Rice, Adrian Peterson, Jameis Winston, Chris Brown, and Michael Vick. Following an overview of these contemporary cases, there is an assessment of whether and how Black protectionism was used in these cases, compared with its availability in previous cases.

Part IV discusses the Black Lives Matter movement and its push and impact in reshaping and reimagining Black crime victims. It also considers how this reimagining has encouraged a revamping of Black protectionism. This Part also examines the emergence of social media and the role it has played in the refining of Black protectionism. This Part concludes by identifying the shift to a new, updated form of protectionism: Critical Black Protectionism. The discussion addresses how Critical Black Protectionism refines and expands previous applications of Black protectionism.

Part V addresses outstanding questions about Critical Black Protectionism, including its future iterations and its ability to impact and alter how the justice system works for African Americans.

. . .

Over the last decade, the practice of Black protectionism has changed. Today, the Black community is less likely to make it available to well-known African Americans facing legal trouble. Instead, it is readily available for Black victims of crime, particularly in cases involving police assaults. Black protectionism is no longer viewed as an automatic response by the Black community--a racial allegiance required by African Americans to “protect their own.” The rise in social media has enabled alternative and dissenting voices to be heard. These new voices have upended the way that Black protectionism works. Specifically, that using and focusing Black protectionism on high-profile Blacks is ineffective because it ignores the majority of Black crime victims and it does not provide the community with a return benefit.

This new protectionism that has emerged is Critical Black Protectionism. It is a departure from the Black protectionism of old. The value of this new and measured form of Black protectionism is that it hews closest to raising awareness about the failings of the criminal justice system, including racial profiling, selective prosecution, and other race-related issues (e.g., victim blaming). Prior to these recent developments, Black protectionism was stuck in an interminable feedback loop, because the Black community appeared to speak with one voice. That voice protected and defended well-known Black men accused of crime, regardless of the circumstances. However, Critical Black Protections requires that the community engage in a more discerning two-part assessment. This includes an assessment of the circumstances of the allegation or charge. Also, if the person is well-known, this assessment includes a look at their connection with the Black community. It also requires an assessment of how and whether a community cloak of protection will benefit African Americans as a whole. This shift in thinking about how Black protectionism is distributed indicates that there has been a near 180-degree shift in who matters for purposes of Black protectionism.

The ascendance of Black Lives Matter combined with the growth and development of social media, has prompted the changes in Black protectionism. In effect, the Black Lives Matter movement may have helped to remove--or at least call into question the prior requirement that the person receiving it was a well-known member of the Black community who had been accused of a crime. The new scheme encourages Black protectionism for both alleged offenders and victims of crime. It also alters the trigger questions by adding questions that provoke a consideration of whether an exercise of protectionism will embolden the Black community. In summary, the Black Lives Matter movement has focused the community's protective gaze on Black victims of state violence and away from elite individuals. Under this revised structure, Black protectionism is available for all African Americans, not just high-status Blacks.

Overall, the practice of Black protectionism has been used to subvert the dominant narrative. It rejects the long-standing link between Blackness and criminality. It also rejects mainstream society's questioning of African American humanity. As noted throughout this Article, the Black community's use of protectionism is a community resource, one that will work best when used in ways that benefit the community. In this way, Black protectionism can be used to gauge how African Americans perceive their place in society and in particular within the criminal justice system-to determine whether the law is friend or foe. Critical Black Protectionism requires that the community benefit from its racial embrace: “We have to know the difference between Trayvon Martin and Bill Cosby.” Indeed, the recent evolution from standard Black protectionism to Critical Black Protectionism is a hopeful sign of movement in the right direction.

Chesterfield Smith Professor of Law & Director, Center for the Study of Race and Race Relations, University of Florida, Levin College of Law, Gainesville, Florida.