The Value of Whiteness

A lawsuit is being waged against the “wrongful birth” of a black child.

Patricia J. Williams November 12, 2014 | This article appeared in the December 1-8, 2014 edition of The Nation.

In a recent encounter between Fox’s Bill O’Reilly and Comedy Central’s Jon Stewart, the two men discussed “white privilege.” O’Reilly maintained that his accomplishments had nothing to do with race and everything to do with hard work. Stewart pointed out that O’Reilly had grown up in Levittown, New York, a planned community to which the federal and local governments transferred tremendous mortgage subsidies and other public benefits—while barring black people from living there—in the post–World War II period. O’Reilly thereby reaped the benefits of a massive, racially exclusive government wealth transfer. As legal scholar Cheryl Harris observed in a 1993 Harvard Law Review article, “the law has established and protected an actual property interest in whiteness”—its value dependent on the full faith and credit placed in it, ephemeral but with material consequences.

A recent lawsuit brought by Jennifer Cramblett pursues the stolen property of whiteness in unusually literal terms. Cramblett is suing an Ohio sperm bank for mistakenly inseminating her with the sperm of an African-American donor, “a fact that she said has made it difficult for her and her same-sex partner to raise their now 2-year-old daughter [Payton] in an all-white community,” according to the Chicago Tribune. Cramblett is suing for breach of warranty and negligence in mishandling the vials of sperm with which she was inseminated, as well as emotional and economic loss as a result of “wrongful birth,” which deprived her of the whiteness she thought she was purchasing.

The story was hot news for about twenty-four hours and included an interview with Cramblett on NBC. “We love her,” she said of Payton. “She’s made us the people that we are.” Cramblett then burst into tears. “But,” she continued through clenched teeth, “I’m not going to sit back and let this ever happen to anyone ever again.”

That disjunctive, the “but” clause of her despair, was reiterated throughout Cramblett’s court papers. Despite being “beautiful,” Payton was “obviously mixed-race.” While Cramblett purportedly bonded “easily” with the little girl, she “lives each day with fears, anxieties and uncertainty.” Her community is “racially intolerant,” plus Cramblett suffers from “limited cultural competency relative to African Americans,” having never even met one till she got to college. Then there’s Cramblett’s “all white” family, who can barely stand that she is gay…and dear lord, now this? While Cramblett felt “compelled to repress” her sexual identity among family members, “Payton’s differences are irrepressible,” the lawsuit states. “Jennifer’s stress and anxiety intensify when she envisions Payton entering an all-white school.”

But the infant Payton did not make Cramblett and her partner “who we are.” They lived a confined and reprehensibly oppressive life before she was born, and it was only because of her birth that they were forced to confront it. The real question is why or how they could have been happy with their lives before.

When Cramblett asserted that her town was “all-white”—in a state, in a nation, in a world that is absolutely not—one has to wonder how on earth that can be. The sad history of housing segregation in the United States is not a long-ago tale. Bill O’Reilly’s Levittown was racially restrictive not only by the developer’s private choice; racial segregation was underwritten by federal banking policies and guidelines in the administration of the GI Bill. In the postwar era, not only Levittown but the entire United States became a land divided between “inner cities” and white suburbs because of loan practices that red-lined certain neighborhoods if blacks lived there. Ninety-eight percent of home loans issued under the GI Bill went to whites, and only 2 percent to people of color.

Levittown remains one of the best-documented examples of the long-term distortion that discriminatory mortgage underwriting had in configuring the wealth gap between blacks and whites. Black people became renters in a land of homeowners because of public policy that denied them access to the same opportunities to accumulate equity in real estate. And for those who were able to afford a home, the very fact of one’s skin color lowered its value by virtue of the big red line that would instantly pop up around it. Today, Levittown remains 89 percent white.

Cramblett has exhibited no more awareness of this political history than Bill O’Reilly. Imagine if she and her partner cared about the racism that pervades their environment, instead of suing for the cost of dealing with their “private” distress. Reframed as a civil rights agenda, it might help them to see that they face no more or less than what any black family faces in the United States. They might begin to consider their claim of individual economic damages more in terms of a civil rights claim for affirmative action and a pushback against racial stigma. Perhaps they’d find renewed community and succor by working for fair housing, or by joining the demonstrations in Ferguson, Missouri, or by pushing for same-sex marriage laws in their home state of Ohio.

Instead, Cramblett seems engulfed by the same race panic that has put the bodies of other children at risk. Little Payton dispossesses her mother by being born, taking the space of a more qualified, more desired white candidate, erupting into the world as damaged goods—a neighborhood defiled as well as a family disappointed. “God’s punishment,” according to the online hate. “Mistake,” according to the court papers. That geography of mistrust confines us all, whether trapped inside carceral walls at one extreme or gated communities at the other. We are left with a segmented society that does not know itself as whole, our reflection lost in the narrowest shards of a broken mirror.

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Dangerous Children

Will Your Child Grow Up to Be Victim or Torturer?
While 90 percent of teens break the law, only some enter a violent system.

Patricia J. Williams October 15, 2014 | This article appeared in the November 3, 2014 edition of The Nation.

I took myself out for an early supper a few days ago. A little family-run Japanese restaurant on the Upper West Side of Manhattan, filled with neighborhood parents too tired to cook, kids with their homework spread out amid the platters of sushi.

Midway through my meal, the place was robbed. Two skinny kids, no more than 15 years old, had come in and, while the waitress’s back was turned, seized the cash box and fled, with five of the staff pounding after them, to no avail.

It was very quick, very unnerving. The speed with which it happened gave it a surreal quality, like a Disney cartoon where naughty boys steal pies while the baker chases in vain, throwing hot cross buns. Fists were shaken, but no weapons deployed. No one was injured. The police weren’t even called because, as the maître d’ explained with a shrug, there wasn’t a lot of cash; it’s a mostly credit-card business.

So life continued, shaken but not substantially stirred. People returned to their meals, children settled back to their homework, and the place resumed its soft murmured conversations amid the tinkling of spoons, glassware, crockery.

Still, there was a restless current of adrenaline that lingered for a while. An understandably distressed mother at the table next to mine described the thieves to her son as “those horrible people.” But as she went on, her indictment of “those people” became an infinitely expanding universe of horribleness, extending far beyond the two who ran off with the till.

Her handsome boy of only 5 or 6 began to muse aloud about what he’d do if he ever caught a robber. His piping little-kid voice carried well as he cheerfully imagined the pain he’d inflict. He’d clearly thought this through, and when he mused about boiling entrails and how you have to drain the blood before you put the severed head on a pike, I was impressed. The detail seemed delivered across centuries, evoking the great English jurist William Blackstone’s eloquence upon the punishment for high treason:

“(1) That the offender be drawn to the gallows, and not be carried or walk…. (2) That he be hanged by the neck, and then cut down alive. (3) That his entrails be taken out, and burned, while he is yet alive. (4) That his head be cut off. (5) That his body be divided into four parts. (6) That his head and quarters be at the king’s disposal.”

As much as the robbery itself, it was the little boy’s gothic soliloquy, delivered in the present tense, that unsettled me.

The unease stayed with me while I finished my soup, then paid for my meal, then walked a few blocks north to drop in on a book party.

The affair was to mark the publication of Nell Bernstein’s Burning Down the House, a comprehensive examination of juvenile detention in the United States. The lack of drawing and quartering notwithstanding, the little boy in the restaurant had been otherwise spot-on about the sort of violence visited on juvenile wards by adult guards and staffers.

Forty-two out of fifty states have extensive, documented records of systemwide maltreatment of minors. From New York to Mississippi to California to Illinois, kids are not just beaten up, not just chained or hog-tied or strip-searched, but subjected to bizarre tortures: in Mississippi, forced to eat their own vomit; in California, to kneel for two weeks, hands cuffed behind their backs without toilet breaks and with only three of every twenty-four hours allotted for sleeping and eating. All over the country, children spend weeks and months in solitary confinement. They suffer concussions at the hands of staff, broken bones, ruptured organs, burst eardrums. And they die—as when a 300-pound guard in Florida decided to sit on a sixty-five-pound child. One in ten incarcerated minors will be sexually assaulted by a staff member.

Up to 90 percent of teens admit to doing something that’s against the law, whether smoking a joint or being truant from school. But only certain kinds of kids are punished. In New York City, 94 percent of children in state custody are kids of color. The majority of these children are behind bars for nonviolent behavior, like running away or drinking alcohol. Yet this disparity remains nearly invisible to those who haven’t experienced it. Fifty-one percent of whites believe that white and black citizens are treated with equal fairness by law enforcement, while 70 percent of blacks sincerely beg to differ.

So there I sat at the party, listening to Nell Bernstein show that the little boy’s plottings in the restaurant were less fanciful than they sounded. Who are “those people” in Bernstein’s account? Sometimes the children involved have been shunted among too many foster homes or have emotional problems. They include abandoned and abused kids, or kids who have been raped and trafficked. Sometimes they haven’t done much of anything wrong, but come from high-crime areas where the police have concentrated their stop-and-frisk superpowers on small “quality of life” infractions. They might have unpaid warrants, issued for riding their bike on the sidewalk or having a dusting of marijuana on their person. Sometimes they are just… nothing more than children, whose scuffles and back talk led not to being scolded or benched from the team, but to being punched in the face by public servants.

There is a vast gap between the dangerous white child, whose lawyerly loquacity elaborates the violent punishment he would mete out to “those people,” and the dangerous black child for whom there is no sufficient language with which to make a claim for his existence. Back at the book party, an astonished guest asked, “Isn’t this illegal?” Bernstein responded, “Of course. And when those kids who are in for having a joint get beaten and raped by their keepers, they learn that it isn’t about what they’ve done. It is all about who they are.”

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Ferguson is about the vivid yet deadly hallucinations that have led us into full-blown war with ourselves

 By Patricia J. Williams 

 Posted on November 1, 2014 in Legal Affairs (, Media (, Politics (

I was in Paris when news broke of mass demonstrations following the killing of Michael Brown  in Ferguson, Missouri. Images filled the media of police dressed in helmets and camouflage, wielding heavy artillery, riding in tanks, tear gas and smoke bombs exploding among crowds, huge dogs snapping and snarling and straining their leads. I sat in my small room, just off the Place de la Bastille, watching TV, anxiously reading the papers. I felt an odd sense of distance, immersed in a French vision of my homeland reconfigured as a not-entirely-fictional geography of exotic brutality and existential woe.

Adding to the surrealism of the moment, there were actual American tanks rolling through the streets beneath my window. That week was the 70th anniversary of the liberation of Paris, and there were re-enactments on every corner. Actors dressed as GI’s paraded through the streets while fireworks, light shows and tableaux vivants lit up the night. My heart struggled to reconcile the confetti-strewn celebration of liberatory military might with grim shots of domestic storm troopers “clamping down” in a time of purported peace.

A few days later, I was in London and happened upon a copy of the British magazine, The Week ( There was a short summary of the second-degree murder conviction of one Theodore Wafer, a resident of Dearborn Heights, Michigan, for fatally shooting an unarmed teenaged girl who’d knocked on his door after she got lost. With just those deracinated facts, the preposterousness of Wafer’s paranoia seemed apparent: He heard a knock on the door in the middle of the night; in response he grabbed a rifle and just started shooting through walls and a locked door. “It was them or me,” Wafer testified, explaining that he was “terrified.” As described in The Week, he sounded like a mental patient to me, someone caught in a netherworld of imaginary voices—the multitudinous them! That darkly looming plural!

In the U.S., of course, Wafer’s conviction has been more commonly cast as the story of Renisha McBride, his victim. Her death is never recited without her African-American-ness at the forefront, the story driven almost uniquely by racial insinuation: White man shoots dark figure. Dark figure was drunk, disoriented and beyond the limits of her “own” neighborhood. The encroaching blackness of her didn’t knock, but “pounded” on the door. If that weren’t “terrifying” enough, Wafer’s house in Dearborn Heights was, as The New York Times described it, “just across the city line from Detroit.”

Wafer was sentenced to 17 years in prison for his rashness. But whether punished or unpunished, the impulse to shoot first and ask questions later claims lives with great frequency in United States. Watching from beyond our borders made starkly clear for me the literal insanity of our collective structures of belief: the deeply flawed normative distortions embodied in them, that always-encroaching phantom plural.

There has been much social science documenting the degree to which perception is affected by attributions of race: when audiences see pictures of a white man with a straight razor confronting a black man, viewers remember the razor as being in the hand of the black man. Stereotypes of the imagined black super-predator inhabit our culture so completely that we do not appreciate the degree to which this is a form of magical thinking, one that dwarfs any statistical or empirical reality.

August also brought us John Crawford, Jr.  Crawford was shopping at a Walmart in Beavercreek, Ohio, when he picked from a shelf an air-soft rifle that was for sale. He continued shopping, ambling through the aisles while talking with his wife on a cell phone. Someone called the police to say a man was waving a gun at women and babies. Police arrived and quickly shot Crawford in the back. A grand jury found his death a justified use of force, although video cameras recorded Crawford’s motions, showing definitively that he never waved the gun around, never pointed it at anyone, never moved sharply or hastily, and that other shoppers seemed to be calmly pursuing their business all around him with no fear or aversion. It was, according to prosecutor Mark Piepmeyer, just “a perfect storm of circumstances,” a tragic case with “no bad guys.”

I suppose it is too easy to note that Crawford was black. Surely there are other observations, such as: it is insane that toy guns are made to look like real ones; or, it is insane that Walmart sells real guns as well as toy ones, both ever so casually located somewhere between bedding and paper towels; or, it is insane that after a 9-year-old girl killed her instructor while trying to operate an Uzi —an Uzi!—at an event in Colorado, neither her parents nor the gun range were held criminally responsible.

I do not posit these reflections to underscore the power of racial stereotypes. Ferguson, from France, is also about the vivid yet deadly hallucinations that have led us into full-blown war with ourselves.

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Putting Down The Gun

Charles M. Blow’s ‘Fire Shut Up in My Bones’ 

SUNDAY BOOK REVIEW, 04/10/2014 21:18

reviewed by PATRICIA J. WILLIAMS OCT. 3, 2014

Charles Blow was only 24 when he was asked by The New York Times to direct its graphics department — apparently the youngest department head in the paper’s history. His elegant charts, distillations of political and social complexity, jolted readers with their logic, lucidity and sheer beauty. Before long, he ascended yet again, reinventing himself — and configuring a new genre of journalism — as the paper’s “visual Op-Ed columnist.”

Now Blow has written a complex bildungsroman of a memoir. “Fire Shut Up in My Bones” begins with the author’s childhood as the youngest son within a turbulent yet essentially loving household in the small, segregated town of Gibs​land, La. It ends shortly after he graduates from college, deposited at the start of what most of us know to be a meteoric career — yet a career that, at least in this context, feels like a resting place after the roller coaster of his maturation.

Blow’s memoir borrows heavily from the rhetorical structure of a jeremiad, as its title implies. The line is from the Book of Jeremiah: “If I say, ‘I will not remember him / Or speak anymore in his name,’ / Then in my heart it becomes like a burning fire / Shut up in my bones; / And I am weary of holding it in, / And I cannot endure it.” In the American context, the jeremiad is a sermon practiced by generations of political orators, from the Puritans to Martin Luther King Jr. Its elements include a lengthy lamentation, cresting in a battle of polarities — classically between spirit and flesh — and ending with the triumph of one over the other.

True to that tradition, “Fire” opens with a crisis of opposites: a brief but powerful prologue in which Blow picks up a gun with the intention of killing someone. He follows this up with as succinct a setup as ever there was: “The first memory I have in the world is of death and tears. That is how I would mark the beginning of my life: the way people mark the end of one.” For the next 200 pages, we are left on the precipice of that murderous rage, trembling yet confident it will be overcome somehow — this is a story of self-discovery after all, and we have faith. If it is clear that the object of his rage will live, the real drama lies in not knowing how Blow himself will survive. That moment with the gun remains frozen in the reader, hovering over the narrative retreat into the events leading up to that terrible edge. This is a story that builds and overwhelms; it’s filled with a gathering roar, like an oncoming hurricane. By the last chapter, the tension explodes — like a bubble, not a gun — and drops into a quiet sea of inner peace.

Indeed, there is a surprising placidity at Blow’s core; he seems to find the eye of each storm in which to stand. Amid tensely negotiated extremes of life and death, love and hate, poverty and excess, violence and restraint, Blow exhibits a remarkably disciplined mind, and an early talent for art. Even as a very young child, he designed alternate universes instead of yielding to despair. There are none of Blow’s signature illustrations in this book, yet somehow it is still a visually graphic text. The ideas are rendered first in compact little packets that magically unfold, popping into being as vivid and distinct as origami flowers.

The trajectories of Blow’s life are littered with less fortunate possibilities — there were many easier, more dangerous ways to go. He grows up amid mean if not absolute poverty; he is molested both by a cousin and by an uncle; his father is distant, an alcoholic; and his parents separate under circumstances that involve his mother waving a gun about on more than one occasion. At the same time, there is a well of unconditional sustenance. His grandparents adore him. If life is chaotic, he is consistently fed. His pistol-packing mother is fiercely curious and educates herself over decades, like the tortoise that wins the race: While raising five children, she earns her bachelor’s degree; she later gets her master’s, runs for the school board and wins. In primary school, Blow is such an unusually quiet child that he is tossed by a careless teacher into the “slow” class, and his determined mother fishes him out. Given an I.Q. test, he is recognized as so gifted that a special teacher, provided by the district, is dispatched to his school once a week to instruct him. He marches onward to college.

Blow’s life is remarkable not just for such pendular experiences, but for the chasmic distances between one pole and another. He is even, at one point, recruited by the C.I.A. After he is flown to Virginia for an interview and the requisite lie detector test, the powerful contradictions he holds within himself erupt: “Have you ever had sex with a man?” the interrogator demands. Blow recalls, in an excruciating flash, the assault by his cousin. A tortured pause. “No,” he responds. The machine insists otherwise. Blow asks the agent to repeat the question and answers “Yes” this time. Again, the machine insists otherwise. “I thought in that moment, I will never be free,” he writes. “It took a machine designed to catch liars to help me see that I didn’t yet know my own truth.”

For all the betrayals by others, the greater tension revolves around his own betrayal of his best principles. After enduring a vicious series of beatings-qua- fraternity-hazing in his freshman year of college, Blow submits to and joins the culture of brotherly cruelty for a while. Then, during one night of “testing,” he chases a terrified fraternity pledge down a road that turns out to be an airstrip. An airplane passes overhead, “the deep roaring whistle of the engines like a breath blown across the mouth of a Coke bottle. The plane was flying so low I was sure a sharp-eyed passenger could see us. . . . Seeing the plane and imagining its passengers and the folks milling about in the terminals — just those images of humanity — stopped me long enough to ask myself, What am I doing?. . . I had gone from the bottom of the male hierarchy to the top of it, and all it had required was the complete suffocation of my soul.”

This reflection leads to the most intriguing of the splits in this book: the confrontation with his sexuality. In some ways, he suffers from an almost classically Freudian angst in the wake of molestation as a 7-year-old, as well as the searing betrayal by an admired older role model. Blow was also positioned as an easy target for all sorts of violation. He was left on his own much of the time, and his longing for affection was aggressively bounded by Scriptural threats about hellfire and the irrevocability of ​transgression.

But Blow’s crisis is also an existential one, about cultures of masculinity. He marries. He divorces. He entertains the possibility that he is bisexual, an issue that refuses neat resolution. More clearly, however, his confusion about his sexuality operates as a symbolic middle ground between all the other dualities presented in this book: murder and suicide, mind and matter, right and wrong, traumatized silence and voluble confession.

Irreducible opposites may shape the world of his youth, but his pilgrimage, his progress, is neither that of the Puritan nor that of the fundamentalist churches in which he was raised. Blow’s memoir is an unconventional jeremiad, in that it resists the exclusions of “either-or.” The conflicts central to humanity are reconfigured here as fields of simple possibility: of compromise, of forgiveness, of eternal incompletion, of the fire unleashed at long last from our bones.


A Memoir

By Charles M. Blow

228 pp. Houghton Mifflin Harcourt. $27.

Patricia J. Williams is a professor at Columbia Law School, a columnist for The Nation and the author of “The Alchemy of Race and Rights.”

A version of this review appears in print on October 5, 2014, on page BR14 of the Sunday Book Review with the headline: Putting Down the Gun.

© 2014 The New York Times Company

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The Guardian: ‘Shondaland is the most integrated and interesting geography in America’

After ABC debuted its three-hour block of Shonda Rhimes programming on Thursday, including Grey’s Anatomy, Scandal and How To Get Away with Murder, we asked four black women to explain the significance of this TV event.

American professional women around my age, like Hillary Clinton or Elizabeth Warren, have been pretty much able to track their careers in high places by the trail of epithets: bossy, strident, pushy, overbearing. Add in the woo-hoo factor of race, and the monickers of ball-busting masculinization crystallize into the scary, rock-hard trope of “the angry black woman.” Being demeaned by decades’ worth of those terms wears you down, and many women of a certain age remain distinguished by a tendency to apologize all the time. I see it in myself: if I trip over a chair, I say I’m sorry.

All this is to say that that’s why I brought a very large bowl of popcorn and a bucket of champagne to last night’s epic enterprise, three hours of total immersion in the cluster of soap operas produced by Shonda Rhimes, where absolutely everyone misbehaves and absolutely no one ever apologizes.

By everyone, I do mean everyone.  Shondaland is the most integrated and interesting geography in America: it’s a field inhabited by blacks, whites, women with power and vulnerable men, veterans with PTSD, queer folk, Asians without accents, Republicans, autistic savants, southerners, assassins, Hispanics, and interracial siblings. They all stab each other in the back; they all have make-up sex.

It’s fast, it’s funny, but the diversity for which Rhimes’ dramas are so heralded is more than her merely having added more women or people of color. The casting is more fluid, more plastic, and head-spinningly playful than that. If her plots are often thinly disguised reworkings of old scripts, it is the transgendered, transracial mashing-up of familiar characters that is the most fun, what with black James Bonds, male Monica Lewinskis, female Professor Kingsfields, and Portia di Rossi as a gimlet-eyed version of Condoleeza Rice.  This makes for wonderfully thought-provoking confusions of category as well as great throwaway lines.

As the lesbian Latina osteopath on Grey’s Anatomy put it in one tidy nutshell: “I don’t want my daughter to have my father for a mother.” Television just doesn’t get better than that.

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The Right to Be Forgotten

Published on The Nation (
Patricia J. Williams | September 17, 2014

A debate erupted in the comment section of Dave Zirin’s Nation blog after he wrote that “showing and reshowing [the elevator video of then-fiancée, now wife, Janay Palmer] just because we can is an act of harm.” He argued that “just as we would protect the name of an alleged rape victim, just as we would not show a video of Ray Rice committing a sexual assault, we should not be showing this video like it’s another episode of Rich People Behaving Badly.”

Yet it’s not necessarily against the law to publish the identities of rape victims. And there are thousands of online “we’s” who post everything from the rape of drunken classmates to the torture of kittens to human beheadings. But Zirin’s point is an important one, reminding us of the purpose behind America’s best traditions of journalistic integrity. Many millions of people have now seen Janay Palmer knocked to the floor, her limp body sprawled facedown, her dress crumpled above her waist, a portrait of one woman’s degradation. For those who believe that “we,” “the public,” “need” to see this, or even have some kind of “right” to see it—well, let’s think carefully about all which that implies.

Hearst and Murdoch notwithstanding, FCC oversight and clear ethical standards have made US journalism generally fairer and more accurate than elsewhere—Britain’s Fleet Street, for example. But the digital-age trend toward “it’s all out there anyway” punditry trades values of privacy, fairness and relevance for a standard of pure transparency, no matter who is exposed. Fox News has done much to break apart the old conventions. It is, after all, a subsidiary of Fox Entertainment; its only outer limit seems to be child pornography or physical threat. TMZ, too, deserves scrutiny, as publisher not merely of the Ray Rice footage but of much with which we’ve been obsessed recently: the hundreds of pictures of nude celebrities stolen from their cloud storage systems, as well as the film of Solange Knowles kicking Jay-Z, purchased from a hotel employee for $250,000. TMZ practices what is called “checkbook journalism,” encouraging legions of Little-if-not-Big Brothers eager to contribute to a culture of surveillance that has consequences for all of us.

A major tenet of the women’s movement over the past thirty years has been that rape trials, for example, frequently retraumatize victims by forcing them to relive the experience through the presentation of evidence in court. Now, with social media, that evidence can be posted anywhere or sold to anyone. As Julia Angwin notes in her book Dragnet Nation, the very attempt to shield yourself online, as with encrypted e-mails, is likely to place you “on some kind of red-flag list at the NSA.” In the United States, corporate and marketing lobbyists are quick to denounce any and all attempts to protect privacy as “censorship.” But there do exist basic legal as well as ethical limits we may wish to propose as starting points for a more robust discussion about our changing world.

A recent ruling by the European Court recognizes a “right to be forgotten.” This is derived from a right, originally accorded to criminals who had served their time, to have their records expunged so that they’re able to start life over. It is a right premised on the possibility of rehabilitation—not popular in America’s highly punitive culture. But in Europe, the right to be forgotten has become a cause that extends beyond criminal history to a more general concern that in cyberspace, we never grow past the moment of our greatest humiliation, and that in the long run this record will make us a less mobile society. We risk becoming serfs to our surfing history, as well as pawns to be experimented on by companies, like Facebook, whose business is data. The European Court found that search engines like Google must remove information that is “inadequate, irrelevant or no longer relevant” when a member of the public so requests. The ruling seems broad enough to apply to resolved debts, revenge porn, indeed any information that affects people’s honor, dignity or privacy.

In Europe, Google is currently fighting any such obligation. In the United States, the Supreme Court has ruled that free-speech concerns allow publication even of embarrassing material as long as it was legally obtained. Of course, in the face of near-zero regulation, little can be categorized as illegally obtained. But we could make tougher sanctions against government and private surveillance if we wanted to. We could create higher standards for encryption of our stored information. That would hobble the use of cookies by advertisers and other collectors of data, who make billions of dollars from our purchasing histories and viewing habits. This is a technological quandary to some degree, but the balancing of privacy, surveillance, freedom of information and censorship is not new or irremediable.

Meanwhile, it’s hard to imagine that Ray Rice will ever work again. No matter how much therapy and soul-searching he undertakes, it’s going to be hard for him to find a job doing so much as raking leaves. Unless, of course, he sells his story to the perpetual shaming machine known as reality TV. It’s not hard to imagine him locked on an island with Dr. Phil and Richie Incognito and Adrian Peterson and Bristol Palin (who, according to reports about a recent melee at her father’s birthday party, “has a particularly strong right hook”). Rehab With Ray Rice, they’ll call it. Poor Janay Palmer Rice will be forced to make ends meet by spending her days in some spin-off of Mob Wives, titled something like Ex-Wives (one can hope!) of the NFL. An entertaining thought, no? Feels not just possible but likely? My commission, please, Fox Channel! Yet this is an outcome that degrades not only the Rices, but all of us as citizens and as vulnerable human beings. If we capitulate to the idea that pornographic reiteration is our only future, all sentences become life sentences.

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Obama’s message of hope and change is all but lost amid the chaos of Ferguson

The president is being pressed to take sides in a personal, political and structural tragedy in a divided nation
by Patricia J. Williams
an edited version of this essay was published at, Friday 22 August 2014 11.03 EDT

In 2008, the year that Barack Obama became president of the United States, the New York-based artist Carrie Mae Weems created a video installation in which Obama’s face melts from one thing to another: model citizen, communist infiltrator, immigrant, foreigner, friend, black Jesus, brown Hitler, American dream, chicken, monkey, zebra, joker, minstrel. As Weems’s voiceover describes it: “A reason to hope, a reason to change, a reason to reason …”

Of course, Obama has always been somewhat shape-shifting in his symbolism – it’s probably what got him elected to begin with. The “hope and change” that became his trademark was more than mere slogan; the very idea of a first black president became a mirror for whatever people wanted to see in him.

Now we come to a situation all too familiar in America with the death of Michael Brown at the hands of a police officer in Ferguson, Missouri. Obama is being pressed to take one of two sides in a layered personal, political, and structural tragedy for which carelessly drawn lines in the sand could not be more unhelpful. The last two weeks of anguish in Ferguson cap a difficult season for Obama. Already besieged by the situations in Ukraine, Iraq, Gaza, Libya, Afghanistan and Pakistan, he has had to manoeuvre his way through attacks at home from every side. From Congressional Republicans threatening to sue him for trying to implement healthcare reform to the snarkily undermining comments of Hillary Clinton – this summer has been a season of confrontation. Is Obama too aggressive in his exercise of executive power? Or too chicken to invade? Is he passive on immigration? Too intemperate with Congress? Rarely has a president been so buffeted by such a variety of inconsistently projected personality traits.

According to a Pew Research Poll, 80% of African Americans think race is an important component of the discussion about Michael Brown’s shooting, while 47% of whites in America think race is getting too much attention. Two thirds of black Americans believe that the police response has been excessively forceful, but only a third of whites. And while 68% of Democrats believe race is an important consideration in this case, only 21% of Republicans do.

With a nation so divided, Obama wades into the debate not so much as president or as constitutional law professor or as chief executive of the Justice Department. In many people’s minds, he is fixed as exclusively African American rather than “really” American. That symbolism puts him in something of a no-win situation: anything he says or does will be heard as siding. While the crowds of protesters in Ferguson and other cities around the country are actually quite diverse, they have become singularly monolithic in many media representations. Except for the journalists who have been assaulted and a 90-year-old Holocaust survivor who was arrested, protesters have been portrayed as representing all African Americans everywhere – noisy “agitators” who make police and honest white citizens “fear for their lives” and who “reflect badly” on the greatness of our republic.

And as for Obama, his restraint becomes reconfigured as ineffectual, alien, and remote. The dilemma makes me think of a recent exhibit by another contemporary New York artist, Dread Scott—his pseudonym a play on the name of an 1857 landmark Supreme Court case, Dred Scott v. Sanford, which ruled that blacks could not be citizens. His show Wanted “is a series of police wanted posters featuring a ‘police sketch’ of youth with a description listing a non-illegal activity for which they are ‘wanted’.” Public discussions accompany the exhibit, illuminating the pervasive fear and criminalization of young black men. A popular Twitter hashtag made the point even more poignantly: #IfTheyGunnedMeDown, where thousands of young men posted two very different possible photographic depictions of themselves: first, a carelessly taken selfie, perhaps frowning or showing a tattoo or wearing a hoodie, and then a second formal pose, as the upright citizen, the graduation picture in three-piece suit, the beloved mother’s child. Which image captures a life–by what is our existence honored or memorialized? The response captures the atmosphere of accusation and apprehension that surrounds every black person in the US, even the president.

Indeed, even the metaphors employed to prod Obama to “do something” resonate with oppositional connotations beyond his control. Consider just one expression, used to the point of cliche, that of “stepping up to the plate”: this is a sports metaphor used in team play. I suppose, by some measure, separate teams might be the nicest way of putting it.

Republican v Democratic, anti-abortion v choice, Tea Party v traditional conservative, climate change denial v ecological activism, immigration reform v walls on the border, gun nuts v the world. American discourse is inflamed well before one gets around to racialising it all. The message of hope and change, which originated as a means of contrasting the Bush administration’s handling of nearly everything – Katrina, Rumsfeld, Cheney, Iraq! – is so out of context as to be quite long-forgotten.

Against the backdrop of Ferguson’s tumult, pundits of all political stripes have been urging the president to “get angry” and be “forceful”. No less than Sean “P Diddy” Combs was quoted as saying: “Obama, for real, get on a plane. It’s serious.” And Duke University professor Michael Eric Dyson urged him to use his “bully pulpit” to render justice. But how the president can use his “pulpit” without being seen as “bully” is precisely the challenge.

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