An Artistic Expression of Critical Race Theory

By: Stephanie Turcios

A picture is truly worth a thousand words. Many of us have seen Jonathan Harris’ painting entitled Critical Race Theory (see the artwork here on Mr. Harris’ website) while scrolling on social media this year. The image is sending shock waves through the art world and is impressing the importance of Black history upon the global consciousness. While it often takes legal scholars pages of rhetoric to explain, Harris has captured the significance of Critical Race Theory (CRT) in a single painting. The image depicts a blond person painting over prominent Black American leaders – Martin Luther King Jr., Harriet Tubman, and Malcolm X with white paint. 

Salient to Black History Month, Harris’ work depicts the danger of whitewashing history. Harris, like many black people in the U.S., assumed that Harriet Tubman was a well-known historical figure. However, during one of his shows at the Irwin House Gallery, a white woman noted that the painting was “a powerful piece” but asked why Harris chose to include Aunt Jemima with Malcolm X and Martin Luther King Jr. It was a serious question and an eye-opener to Harris. He questioned that if this woman doesn’t know who Harriet Tubman is, does she really understand the history of slavery and oppression that Harriet Tubman fought against. 

Further, when asked why he painted Critical Race Theory, Harris told Artnet News that “Black people [are] questioning if our history [is] in jeopardy …[w]e only know what we are taught. My mind went to, ‘how far can this actually go?” His inquiry is in response to the recent backlash against CRT as an academic discipline. Since January 2021, 37 states, including Washington, have proposed legislation to restrict or outright ban teaching CRT in public schools. Harris further opined that “[i]f we don’t push back as these bills are getting passed, this painting could be the future.” To many black people, erasing our history threatens the understanding of our experiences in this country. Our history explains the issues of today and is critical to undoing the harm that persists. 

But what is critical race theory? 

Earlier this year, the American Bar Association published an article by Janel George, a professor at Georgetown University Law Center, explaining CRT. CRT emerged as a subdiscipline of Critical Legal Studies (CLS) in the 1970s. CLS theorists departed from the traditional understanding that the law was a neutral force devoid of political or social considerations and instead posited that law was neither objective nor apolitical. Likewise, CRT theorists agree that the law is neither objective nor politically or socially neutral and that our legal system is instrumental in furthering racial inequality. 

Founding theorists such as Derrick Bell, Kimberlé Crenshaw, Cheryl Harris, and many others ultimately reject the theory of color-blindness, the idea that racism stems from “a few bad apples,” and instead raise structural questions as to why racism persists despite decades of reform efforts. Professor Crenshaw notes that CRT is not a noun but a verb because it is an evolving theory that recognizes that race is a socially constructed concept that is structurally and systematically embedded in many of our institutions, including our legal system. CRT argues that systemic racism perpetuates racial inequality, evidenced by the lived experiences of people of color and other marginalized identities. 

Conversely, opponents of CRT characterize the discipline as divisive. Christopher F. Rufo, an activist against CRT, argues that the discipline is nothing more than a reframing of identity-based Marxism that spreads anti-American ideology. Rufo, and opponents like him, fear that CRT will destabilize our institutions, which they see as “neutral, technocratic, and oriented towards broadly-held perceptions of the public good.” But is this a fair characterization of the theory? Is CRT teaching children to hate their country, or is it challenging us to think about the institutions that have perpetuated harm to people for centuries? 

Why CRT matters. 

The discipline of CRT does not share in the notion that destabilizing the law will stop racial injustice. As Professor George notes, CRT recognizes that although the legal system has historically been used to deepen racial inequality, it also has significant potential to help secure racial equality. We must shift our focus from reform of our institutions to examining the root causes of racial disparity and dismantling those causes through structural change.  

In the New York Times, Mari Matsuda, a CRT founder and law professor at the University of Hawaii, explains the significance of the theory as follows: “I see it like global warming…[w]e have a serious problem that requires big, structural changes; otherwise, we are dooming future generations to catastrophe. Our inability to think structurally, with a sense of mutual care, is dooming us — whether the problem is racism, or climate disaster, or world peace.”

The beauty of art. 

We live in a time where people are quick to speak and slow to listen, where nuances in arguments are lost, and the “all or nothing” mentality prevails. But the beauty of art is that in order to appreciate it, you must sit and reflect on it. You must pause, take a moment, and ask yourself: is Harris’ depiction of our future what we really want?

Stratton Oakmont v. Prodigy Services: The Case that Spawned Section 230

By: Mark Stepanyuk

The United States led the world in internet usage throughout the 1990s and “[a]t the time of the Dot-com-crash less than 7% of the world was online.” Traversing this previously uncharted territory en masse necessitated a promulgation of rules that would govern the new frontier. Naturally, those rules emerged to conform with existing legal standards. Wrapped up in this context is a story about how the firm started by “The Wolf of Wall Street”, also known as Jordan Belfort, would have a hand in bringing about the existence of arguably the most influential legal rule shaping the internet to this day. 

Enter Stratton Oakmont v. Prodigy Services

Jordan Belfort founded Stratton Oakmont in 1986 as a brokerage firm specializing in trading “over-the-counter” securities. The world became familiar with this story when Leonardo DiCaprio portrayed a lecherous and drug-addled Belfort in the 2013 academy-award nominated film The Wolf of Wall Street

Prodigy Services was an early online service network that provided its subscribers access to various information services such as bulletin boards where third parties exchanged information. In the early-to-mid-1990s, Prodigy was considered one of the major players in the  information services space providers alongside CompuServe

Prodigy, unlike CompuServe, had “held itself out” as exercising editorial control over the content of its computer bulletin boards. One of Prodigy’s bulletin boards was called Money Talk, a popular forum where members would post and discuss financial matters. Prodigy contracted with Board Leaders (or moderators or mods in today’s parlance) to, among other things, oversee and participate in board discussions.

On October 23rd and 25th in 1994, an unidentified individual posted to the Money Talk bulletin board claiming that Stratton Oakmont committed criminal and fraudulent acts in connection with an IPO that it was involved in. The anonymous poster made statements claiming that the offering was “major criminal fraud” and “100% criminal fraud.” The individual also posted that Stratton Oakmont was a “cult of brokers who either lie for a living or get fired.” 

Stratton Oakmont and Daniel Porush—the individual that Jonah Hill’s character in The Wolf of Wall Street film was loosely based on—filed suit against Prodigy in the New York Supreme Court, the state trial court, alleging libel, among other things.

On a partial summary judgment motion brought by Stratton, the court considered Prodigy’s own statements and went through the classical libel analysis to determine whether Prodigy was a “publisher” or “distributor,” where if Prodigy was deemed a ‘publisher,’ then it would be as if they themselves had posted the allegedly libelous statements. By the way, those statements later turned out to be true

The court concluded that Prodigy was indeed a “publisher.” Reasoning that Prodigy “held itself out to the public and its members as controlling the content of [Money Talk] …,” and, by contracting with the mods, “actively utilize[ed] technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and ‘bad taste[.]’” 

The court distinguished this holding from a 1991 case involving CompuServe four years earlier. There, the United States District Court for the Southern District of New York dismissed a libel case on the basis that CompuServe was a “distributor” (where they would only be liable if they knew or had reason to know of the libel) Unlike Prodigy, CompuServe did not review any content before it was posted to its bulletin boards. The court reasoned that, without knowledge of the libel, CompuServe would not be liable. 

Legislative Reaction to the Stratton Oakmont Case

Some legislators thought the results in Stratton Oakmont and the CompuServe case were backwards. Chris Cox (R-CA) stated that the “[t]he perverse incentive this case created was clear: any provider of interactive computer services should avoid even modest efforts to moderate the content on its site.” After seeing a Wall Street Journal article about the case, Cox reached out to Ron Wyden (D-OR) to work on the bill that would later become Section 230 in an effort to address these “perverse incentives.” This effort initially culminated in the Internet Freedom and Family Empowerment Act. The bill was enacted as part of the “Communications Decency Act,” (CDA) but when the rest of the CDA was struck down on first amendment grounds, section 230 survived. It can be found here

What does Stratton Oakmont Teach Us About Section 230 today?

Section 230 was passed largely to address those “perverse incentives” regarding moderation by online service providers. In 1990, Prodigy’s Director of Market Programs and Communications stated that “[Prodigy] make[s] no apology for pursuing a value system that reflects the culture of millions of American families we aspire to serve.” In the same NYT article, “social responsibility” was given as a reason to exercise editorial discretion—does that sound familiar? These seemingly recurring themes lead experts to opine that the current discourse about Section 230 is a bit phony—that it’s really a proxy for a conversation about the first amendment. The legal differences between a publisher and distributor are First Amendment distinctions, and since the enactment of Section 230, “that’s not really been an issue for the internet.” So functionally, those underlying First Amendment issues haven’t mattered as much in light of Section 230.

In the United States, we are still figuring out the rules of this relatively new frontier. Some folks argue that Section 230 helped make the digital economy what it is in the United States. Globally, the United States comes third in the total number of internet users with around 250 million, behind China (over 750 million) and India (over 390 million). Though here in the U.S., we will continue to arbitrate what speech should and should not be protected in light of the first amendment, it’s likely that the reasonability of how we approach an equilibrium will be a function of global influence and time. The internet rules of the future are certain to be impacted by technology (even more new frontiers) and the continued influence of globalization (i.e., different value systems, standards, and interpretations). 

Lawmakers Set Their Sights on Restricting Targeted Advertising

By: Laura Ames

Anyone who spends time online has encountered “surveillance advertising.” You enter something into your search engine, and immediately encounter ads for related products on other sites. Targeted advertising shows individual consumers certain ads based on inferences drawn from their interests, demographics, or other characteristics. This notion itself might not seem particularly harmful, but these data are accrued by tracking users’ activities online. Ad tech companies identify the internet-connected devices that consumers use to search, make purchases, use social media, watch videos, and otherwise interact with the digital world. Such companies then compile these data into user profiles, match the profiles with ads, and then place the ads where consumers will view them. In addition to basic privacy concerns, the Consumer Federation of America (CFA) points to the potential for companies to hide personalized pricing from consumers or to promote unhealthy products and perpetuate fraud. Perhaps the largest concern is that the large stores of personal data that these companies maintain put consumers at risk of having their privacy invaded, identity theft, and malicious tracking.   

In response to these concerns, Democratic lawmakers unveiled the Banning Surveillance Advertising Act (BSSA) in an attempt to restrict the practice and under a general consensus that surveillance advertising is a threat to individual users as well as society at large. This move prompted opponents to argue that the BSSA is overly broad and will harm users, small businesses, and large tech companies alike.

What Does the BSSA Do? 

The BSSA is sponsored by Senator Cory Booker and Representatives Jan Schakowsky and Anna Eshoo. The bill bars digital advertisers from targeting their ads to users and also prohibits advertisers from targeting ads based on protected information like race, gender, religion, or other personal data purchased from data brokers. According to Senator Booker, surveillance advertising is “a predatory and invasive practice,” and the resulting hoarding of data not only “abuses privacy, but also drives the spread of misinformation, domestic extremism, racial division, and violence.”

The BSSA is broad, but it does provide several exceptions. Notably, it allows location-based targeting and context advertising, which occurs when companies match ads to the content of a particular site. The bill suggests delegating power to the FCC and state attorneys general to enforce violations. It also allows private citizens to bring civil actions against companies that violate the ban with monetary penalties up to $1,000 for negligent violations and up to $5,000 for “reckless, knowing, willful, or intentional” violations. The BSSA has support from many public organizations and a number of professors and academicians. Among several tech companies supporting the BSSA is the privacy-focused search engine DuckDuckGo. Its CEO, Gabriel Weinberg, opined that targeted ads are “dangerous to society” and pointed to DuckDuckGo as evidence that “you can run a successful and profitable ad-based business without building profiles on people.” 

The BSSA as Part of a Larger Legislative Agenda 

The BSSA is just one bill among a number of pieces of legislation aiming to restrict the power of large tech companies. Lawmakers have grown increasingly focused on bills regulating social media companies since Facebook whistleblower Frances Haugen testified before Congress in 2021. These bills target a wide variety of topics including antitrust, privacy, child protection, misinformation, and cryptocurrency regulation. Most of these bills appear to be rather long shots, however, because although the Biden administration supports tech industry reform, so many other issues are high priorities for it. Despite this hurdle, lawmakers are currently making a concerted push with these tech bills because the legislature’s attention will soon turn to the 2022 midterms. Additionally, Democrats, who have broader support for tech regulations, worry they could lose control of Congress. Senator Amy Klobuchar argued that once fall comes, “it will be very difficult to get things done because everything is about the election.” 

Tech and Marketing Companies Push Back

In general, tech companies tend to argue that targeted advertising benefits consumers and businesses alike. First, companies argue that this method allows users to see ads that are directly relevant to their needs or interests. Experts rebut this theory with the fact that in order to provide these relevant ads, tech companies must collect and store a great deal of data on users, which can put that data at risk of interference by third parties. Companies also argue that this legislation would drastically change their business models. Marketing and global media platform The Drum predicted that the BSSA “could have a massive impact on the ad industry as well as harm small businesses.” The Interactive Advertising Bureau (IAB), which includes over 700 brands, agencies, media firms, and tech companies, issued a statement strongly condemning the BSSA.  IAB CEO David Cohen argued that the BSSA would “effectively eliminate internet advertising… jeopardizing an estimated 17 million jobs primarily at small- and medium-sized businesses.” The IAB and others argue that targeted advertising is a cost-effective way to precisely advertise to particular users. However, the CFA points to evidence that contextual advertising, which is allowed under the BSSA, is more cost-effective for advertisers and provides greater revenue for publishers. 

Likelihood of the BSSA’s Success

In the past several years, there has been growing bipartisan support for bills addressing the increasing power of tech companies. This support would seem to suggest that these pieces of tech legislation have a better chance of advancing than other more controversial legislation. However, even with this broader support, dozens of bills addressing tech industry power have failed recently, leaving America behind a number of other countries in this area. One of the major problems impeding bipartisan progress is that while both parties tend to agree that Congress needs to address the tremendous power that tech companies have, they do not align on the methods the government should use to address the problem. For example, Democrats have called for measures that would compel companies to remove misinformation and other harmful content while Republicans are largely concerned with laws barring companies from censoring or removing content. According to Rebecca Allensworth, a professor at Vanderbilt Law School, the larger issue is that ultimately, “regulation is regulation, so you will have a hard time bringing a lot of Republicans on board for a bill viewed as a heavy-handed aggressive takedown of Big Tech.” Given Congress’ recent track record in moving major pieces of legislation, and powerful opposition from the ad tech industry, the BSSA might be abandoned along with other recent technology legislation.