Earlier this week, the Supreme Court heard oral arguments in Elonis v. United States, a case that deals with the interplay of speech, threats, intent and domestic violence, among a tangle of other things. It also comes after the news that a grand jury in New York declined to indict the white police officer responsible for the death of Eric Garner, a black father of six from Staten Island.
I reached out to Kimberlé Crenshaw, a professor of law at Columbia University and the theorist who first coined intersectionality as a political framework, to talk about Elonis and free speech, about Garner and Broken Windows and how the two cases each illuminate different paradoxes within our justice system. Our conversation has been condensed and lightly edited for clarity.
I had initially reached out to you to talk about the speech and harassment case that’s before the Supreme Court right now, but the decision in the Eric Garner grand jury hearing came down last night. I wonder if we can talk about both, because the two feel related to me. Each raises questions about how our system is designed to protect some people and harm others, seemingly regardless of what the letter of the law might say.
Let’s first talk broadly about intent. Some part of this debate in the Elonis case is the question of what level of intent the accused must have to have in order to be culpable for an action that he has created. Let’s say that action is homicide. Let’s say that I’m driving my car and I’m in a hurry. I want to get to the airport. My specific intent is to get to the airport. But there is a person crossing the crosswalk, and if I miss this light, I will miss my plane.
I could decide to put my foot on the accelerator and go through the crosswalk even though the person is there. Now whether I am guilty or not depends on which level of intentionality applies to my act. And there is one level that would make me potentially not guilty, which is specific intent. [This is also called “subjective intent” in the court case.]
I know that by going through the crosswalk I am likely to cause serious bodily injury to this person, perhaps killing them. I am aware of the likelihood that my going through that crosswalk means I will hit him and cause serious bodily injury. Or I could be negligent about it: I should have known, a reasonable person would know, that going through this crosswalk would harm this person and kill them. The question is, which of those levels of culpability would the state want to argue and which would I likely want to argue?
I’m going to want to argue that none of those other levels should count, that the only thing that should count would be specific intent. When I put that pedal to the metal, did I want to kill this person? And of course, I am going to say, “No, I didn’t really give a shit about that person.”
So specific intent, as a standard, says that if you didn’t want to kill the person, if you were intending to do something else, specific intent crimes require you to want to do that specific thing. To harm that person. Because you don’t like them, because you’re making a statement.
So what does this look like in practice?
In discrimination cases against groups of people, although the courts have said that it’s not specific intent, you just basically have to have knowledge that you’re doing something to harm a group. They still require you to want to harm that group.
Many of our social justice protections require a quasi-specific intent. It’s not enough that you know that using a particular kind of test, a particular kind of policy or a particular kind of policing policy is more likely to bring you into contact with African-Americans and that contact is going to more likely lead to Eric Garner situations than a different policy.
We might say that should count as discrimination because you know, given the institution that you’re operating under, that anything that brings police into greater contact with people on minor things is likely to cause certain kinds of harms that might not be caused if their interactions with people were minimized to serious felonies or crimes.
Yet, conventional doctrine would say that unless that policy was adopted with the intent to actually harm people on the basis of race, then it’s not a constitutional problem. Some part of all of what I’m saying is that how people play around with what level of intent is has everything to do with how serious they think the social harm is that’s being created and what they consider to be the countervailing values that they want to protect against.
So with police, the system doesn’t want to put high obstacles on police decisions so in turn they make it that much harder to show that the police have done something wrong institutionally.
And how about in the Elonis case? He is arguing that the threats he made against his wife were artistic and therapeutic. But his wife interpreted them as threats, and a jury in Pennsylvania interpreted his comments about putting her head on a stick as threats. They said that a reasonable person could interpret these things as threats.
Once you see how intent standards work, you can see where the different parties are in that case. Elonis wants to push the level of intent higher. If you push it higher, more actions don’t come under the statute. Obviously, the reason why is there is more concern about if you have a lower standard, more legitimate speech won’t be able to be expressed without a chilling effect.
And those who recognize that the higher the standard of intent is the more harmful actions, or, to put it another way, those who carry the burden of that high intent, are folks who won’t be able to say, Look, this guy posted a threat, which I think is credible. Everybody I know thinks it’s credible. The fact that he didn’t really subjectively mean it, or knew it but didn’t mean it, shouldn’t be enough for me. Because I am ducking and dodging and running because I’m worried about [the threat].
So there should be some kind of protection against the ordinary kinds of things that might happen when the culpability level is placed at such a high level that more actions become non-criminalizable than if you had a lower standard.
In a case like this, the lower standard of intent is going to help this woman escape harassment by a man who is threatening and intimidating her. What do you make of the argument that this lower standard -- in a system that is unjust, which is to say our system -- could be weaponized against people who are already marginalized and who are harmed more regularly when they come into contact with the system?
This is, as you know, not at all a new conundrum. It’s the same set of concerns that have been expressed about hate speech. About racial terror. About violence against women. Anti-discrimination law more broadly.
I don’t think, really, there’s a conceptual or a fully politicized way to resolve this at a higher level of abstraction. It’s too hard to resolve it at that level. The space that you have to think about it is, first of all, the actual data. Is it actually the case that hate crimes and other efforts to protect against reasonable threats are more likely to be used against marginalized people than used to protect marginalized people?
That’s something that people have fairly different perspectives about. And it sometimes depends on what precisely are we talking about. In domestic violence order of protection situations, is having a lower standard there more likely to protect women, particularly women of color, who don’t actually enjoy much solicitude from the police? Or does it make them more vulnerable because their entire communities are vulnerable so any kind of state intervention carries the risk that once the police show up, all bets are off and everybody has to worry?
There is some evidence that suggests that mandatory arrest in domestic violence situations has actually increased the number of women of color who have been arrested. And in fact one of the cases from three weeks ago, a shooting in Ann Arbor [of Aura Rosser], a domestic violence situation where the police were called in and they ended up killing her.
There are reasons that are not completely hyperbolic to worry about. How many ways the state gets to come in and say something about social discourse. On the other hand, that has to be measured against a very long history of majoritarian threat and terror, which, for the longest period of time, wasn’t taken seriously.
Some would say that in this new period of the Internet we are in another period of the Wild West, effectively. The same level of oppression and threat is being played out in another arena and law enforcement has been slow to take seriously that these threats are experienced as serious threats, often by the very same people who, as we were talking about a minute ago, are otherwise not protected in their lives.
It is a paradox that the very people who are not generally safe also have to worry about whether efforts to make them safe open up another arena through which they might be subject to consequences of state involvement.
So this is the thing, right? Not to be overly blunt about it, but what is a potential outcome from this Supreme Court case that you view as most tilted toward social justice?
I don’t know if it’s fully answerable, but I think there are ways that, once the distinction between the two is understood, of mediating those two. I definitely think that the specific intent standard that Elonis was framed as having -- though they actually backed down from that at the Supreme Court level -- I think it’s unlikely that this notion of what is the level of culpability for issuing a threat will be at the level of what Elonis is arguing. That he had to know it, that he had to intend it. That it’s a threat because he means it to be a threat, means to harm with it.
So the highest level of specific intent, I don’t think is going to be a reality. But at the second level, most of the debate in the Supreme Court was about the contextual features that allow a jury to determine whether a threat was reasonably interpreted to be a real threat. So these are context-specific evaluations.
That becomes like almost any other rule in the sense that whether there’s risk or not really depends on who is doing the interpreting. So if it is Eminem onstage in front of 20,000 people rapping about putting his wife in the bottom of the lake, it’s contextually obvious that this is entertainment. A reasonable person would freely interpret it in that way.
But if it’s after a protection order has been had, if it’s in the face of a history of other kinds of violence, if there are other contemporary pieces of evidence that suggest this is part of a campaign of intimidation, then that’s more specific. That’s more contextual. That is not a blanket invitation to the prosecutor to go through Facebook and find anything that looks suspicious and subject that person to possible prosecution.
Between the poles, the thematic and political poles, there is really what happens on a day-to-day basis. And that -- where community norms, how people read certain things, what the actual surrounding circumstances are -- has more to do with how this statute gets interpreted.
This may lead us to Eric Garner. We have the letter of the law that explicitly states that chokeholds are illegal. We have Eric Garner telling the officers that he could not breathe. We have the death ruled a homicide. It seems that we have what we need to line up an indictment. But the system doesn’t work that way, and we know the system doesn’t work that way. Because the community standard represented by that grand jury and that prosecutor is that police make reasonable decisions in the application of force. That any use of force by the police is a legitimate use of force.
And I’ll add to that and raise you one! It’s both the community standards and the realpolitik of justice. When justice is meted out based on, effectively, electoral politics -- everything we know and we hate about Congress, that our representatives are beholden to those who give them money, that it is a brokered democracy through marketplaces rather than electing people based on interests and ideals -- we tend to forget that that is also what is happening with respect to criminal justice as well.
So elected officials, like prosecutors, are responsible for seeking justice in such cases, are responsible for seeking justice against people who any other day of the week they have to rely on -- and often rely on knowing that their reliability is tainted. Alan Dershowitz called it the process of “testilying.” On one day out of the year, they have to switch horses and act as if they’re riding for the other team.
There are just no incentives for them to do that effectively when they’re prosecuting cops, other than whatever cost they might have to encounter for creating a process in which it is highly unlikely that the police will be true billed, much less convicted. So these are the realities not just of social or rhetorical culture but the very political mechanisms that amplify that social culture.
Just to make a point: If the prosecutors were specially appointed or if there were some way in which the political connection between what the prosecutor does on an ordinary basis and what they do in these cases is severed, you would still have a social and cultural meaning that would be problematic. But it would be attenuated somewhat because the prosecutor would be answering to different people, would have a different matrix of inputs, outputs and concerns. So you have to think about schemes that are possible to work around or negotiate the social cultural dimensions that would ordinarily apply.
So in a way, what I think Garner reminds us is this whole business about “the rule of law.” It kills me. When the president says it, it just kills me. The whole thing of, We are a nation of laws. I mean, what are we talking about? Some of the worst racist tragedies in history have been perfectly legal. We’ve been perfectly able to use these processes to create kangaroo courts, legal lynchings.
There’s nothing new about that at all. The only thing that might be new is that some of us have forgotten that history, so they may be shocked in addition to being disappointed. The question, in my view, always is: What are the political levers available for us to break these moments when the systemic dimension of this just reproduces itself, that amplifies the anti-blackness that’s in the culture?
Are we stuck with this all through the system, or are there ways to build dams into this that redirect racial power in a different direction? Whether it’s episodic in cases that are more high-profile, or more systemic. We figure out ways that the institution of policing had dams put in them so that the reproduction of this kind of culture has some kind of cost associated with it and some possibility to divert some of these energies in a different direction.
These questions are kind of superficially legal. We’ve got this great decision that the court made against stop-and-frisk that really did reveal the extent to which this stuff is institutionally reproduced. How the bad officers are the ones with power. They get promoted. How there are no disincentives to [stop police from] doing this stuff. There are no incentives for good officers to say no or testify against others. As long as we have a system like that and no real avenues to disrupt that, it’s going to continue in this way.
New York City Mayor Bill de Blasio swapped out stop-and-frisk for Broken Windows and told us it was progress. But what we see so clearly in the killing of Eric Garner and other cases across the city is that the overpolicing of communities of color through Broken Windows is deadly and results in the same kind of criminalization.
This is another historical moment where we forgot that stop-and-frisk in many ways came out of Broken Windows. So to basically say, We are going to give you policing 101. We were stuck with 201 before, but now we’re going back to 101. But 101 caused 201!
That wasn’t giving us anything. It’s quote unquote community policing that created differential triggers for police encounters with citizens -- and that’s exactly what Broken Windows is all about, a show of force and authority triggered around conditions that are conditions particular to communities that are socially and economically marginalized. Occupying and policing communities. I mean, selling loosies on the street end up becoming a capital crime [under this policy].
That’s something that grows out of a geographic and racialized frame of what police do in this particular community as opposed to what they would do anywhere else. So it’s part of the same problem.
You talked before about levers and dams. How do you envision those right now, as we’re thinking about Eric Garner, as we’re thinking about Mike Brown?
In the Garner case, the most effective dam I can think of is the establishment of special prosecutors who are not beholden to the existing infrastructure. Who are not beholden to the blue brass, how the blue wall will affect them in the future because they are selected for this particular case. Not only at the city and county level, but reproducing this across the country.
Other kinds of dams, the court in the stop-and-frisk case found that, like any other institution, we all know that to get the behavior you want, you have to incentivize that behavior and deeply, deeply disincentivize counter behavior. The way it’s set up now, it’s exactly the opposite.
As it is now, if a cop tells a story or supports a complainant, not only do they not get promoted, many of them find themselves no longer employed. It’s not just enough to say, We have changed this particular policy. They need to change the internal institutional mechanisms that reward certain behaviors and attitudes and disincentivize others.
One of the things that’s happening now, particularly with the turnover at the top levels of the police, supposedly there is new training in the aftermath of the Eric Garner case. So what’s that training going to be? Is the training going to be, When you put your arm around someone’s throat and cause it to collapse -- it is an illegal chokehold!
That wouldn’t get to the heart of anything, the encounter the police had with him. With all the serious things going on we’re really going to expend the resources of five to seven officers to take down someone who was selling loosies?
We look at that video [of Eric Garner] and we can look at what’s happening in Ferguson and see that what was going on was not about policing against particular harms or injuries, it was policing against certain bodies and attitudes that those bodies have. It was about Eric talking back, and not throwing himself, basically, on the ground in a “yes master” kind of position.
It’s about the imposition of authority and control. And that is the highway through which racial power is colliding with these bodies. So when I think of a dam, I think about shutting down that highway altogether and redirecting that energy.
The idea of all power and control [in policing] is the same as the underlying way the military thinks of itself -- we shock and awe with our power and control. In community policing, that means an officer tackles people, puts a chokehold on someone or shoots someone during an encounter about selling loose cigarettes or walking in the middle of the street.
Being able to cut off that highway, make it absolutely stigmatized for the police to think that their primary objective is to control people through fear and intimidation … When I think about training, I think about the people who can model police and community interaction outside the need to create total control and domination.
Those are dams, I think, that cut off or reduce traditional ways while building up reservoirs of trust and effective community relationships from which a different kind of police officer can be populated.
How does the force of communities organizing become a lever of its own?
I think I am with a lot of people who are saying, Hell if I know!
As long as the disruption precludes us from going back to business as usual, that can only be a good thing. A couple of days ago was the anniversary of the Montgomery bus boycott. That was framed as something that was totally spontaneous and ad hoc until it eventually became a broader civil rights movement and here we are today with Barack Obama in the White House.
What might be useful to bring forward here is the Women’s Auxiliary League that, basically as soon as Rosa Parks got arrested, starting churning out thousands and thousands of mimeographs to say, Don’t ride the bus. It was an infrastructure already in place and had a plan about mobilizing the community.
So the idea that it was totally spontaneous and that you can get there by feeling your way out is a nice story, is a democratic story, but misses that there were always some people on the ground with the infrastructure at a moment when the energies were high and possibilities were really ripe.
At this period of time, I think it behooves folks to look for those infrastructures that are on the ground that are able to continuously mobilize people. But, of course, at the same time, what Martin Luther King and the other visionaries brought to it was frames that could mobilize people and keep them moving forward.
I think some of that is happening with Black Lives Matter and making the links between anti-black racism, other forms of racism, other bodies that are controlled by the state, including women and LGB and trans people. I think the challenge now is coming up with a capacious enough frame that lines up people who are marching in the street with the people who are negotiating with the elected officials. With the folks who have other regulatory power who can say, Doing nothing is no longer an option. This level of social unrest will not go away.
That also radiates out to the media in ways that don’t reproduce this as a typical Democratic/Republican divide. What makes an important moment is when frames turn around and line up in ways that we haven’t really seen them line up before.
I can’t tell whether or not yet this has enough legs for that to happen. It seems as though there’s a new generation of people who are coming of age in this moment so that even if this particular three months isn’t the time, it may be that three years from now this group of people whose consciousness has been shaped by these things will have a completely different frame of reference and be the ones who are active.
A lot of people think that the Freedom Riders who were the same age as Emmett Till when he was killed experienced that as a mobilizing, consciousness-raising moment. So as they grew, that deep sense of what racism looks like on a very personal level was sufficient to drive them into activism. We might be looking at something similar at this particular moment, or a few years down the line.