By: Ian Taylor, Jr. † & Haaris Pasha††

 

We are in a moment that demands a new breed of legal advocate. The world is confronting a disease that has forced us to quarantine and limited our social engagement.^[1] This global pandemic has also exposed some of the deepest inequities within American society.^[2] The prospect for social mobility in the United States has narrowed as the gap of wealth inequality expands and with it the opportunities for low-wealth individuals to build a better life.^[3] Further, Americans have been cynical about their options for president in the middle of an election year.^[4]

George Floyd’s death has transformed much of America to a moment where cynicism about our system has led to demands to change the system and the law. On May 25, 2020, four Minneapolis police officers held Floyd down as he pleaded for air and for his mother.^[5] It was captured on cell phone video and shared around the world: a police officer with his visible hand in his pocket, nonchalantly pressing his knee into a man’s neck as he begged for air.^[6] It was the perfect symbol for the various forms of abuse of power that oppressed persons face daily. Like a volcano, Floyd’s death caused an eruption of pain and anger. Uprisings, fierce and swelling like lava, rolled through the Twin Cities, the nation, and the world.^[7] Now that the lava has cooled into solid rock, will law creation begin? As legal advocates, we must consider how we construct systems together with our community that can bring justice for folks like George Floyd who are still breathing. We must answer the question: what is the role of the solidaristic-lawyer in this moment?

The traditional avenues for legal redress are failing to sufficiently meet this moment. Historically, those tools have been the legislative process and litigation. Passing a bill on police reform today appears unlikely.^[8] With respect to litigation, legal victories as it relates to civil rights and racial justice have been either under-enforced or diluted by the U.S. Supreme Court and conservative federal courts over the past few decades.^[9] The Court has also created the standard of qualified immunity for police officers that stymies the ability to punish abusive and deadly policing.^[10] As such, without a substantive connection to social movements, legal challenges lack the necessary force to change society.

For example, after Brown v. Board of Education was decided, states in the south largely ignored its mandate.^[11] In the absence of widespread public support, the principles laid out in Brown remained largely symbolic.  The paradigmatic shift that forced the state to act came through mass mobilization efforts and organizing.  Specifically, through the efforts from civil rights and advocacy organizations like the Southern Christian Leadership Conference (SCLC), and through the leadership of organizers like A. Philip Randolph and Dr. Martin Luther King Jr., who together organized sit-ins and marches – a strategy King called “creative confrontation” – public opinion began to shift.^[12]  This shift in public opinion was capitalized in the form of legislative victories, including the passage of the Civil Rights Act of 1964.^[13]

Our role as legal advocates must be to address this nexus between the public and the legal process to support the energy of social movements. We can do this by using our legal training to equip movements and defend them from the vicious efforts that are deployed to undermine them.

As lawyers committed to fundamental transformation, we saw an opportunity to answer this call after George Floyd’s killing. We initially engaged with the movement in Minneapolis by providing arrestee support and legal guidance to movement organizers. Simultaneously, our family and friends asked us to demystify the legal events and actions around the case. As a consequence, we started to consider whether sharing our legal insights with others on a larger scale could bridge a deeper connection with the movement promoting justice for George Floyd.

As we contemplated how to accomplish this goal, we found Professor Cornel West’s seminal essay, The Role of Law in Progressive Politics, to be instructive.^[14] He views the role of  progressive lawyers as “politically engaged narrators who tell analytically illuminating stories about how the law has impeded or impelled struggles for justice and freedom.” West connects our role to the best of the hip hop tradition: “[l]ike rap artists of the best sort, progressive lawyers can reach out to a demoralized citizenry to energize them with insights about the historical origins and present causes of social misery in light of visions, analyses and practices to change the world.” Because of the often unwarranted import, prestige, and deference accorded to lawyers in American society, we are uniquely positioned to play this role.^[15] Thus, as navigators of the law, legal advocates can help provide the socio-legal context for movements, by narrating the historical legacy and present predicament of the law to inform movement strategy.

In keeping with the best of the hip hop tradition, we seek not only to energize the current movement with insights and analysis about historic and present causes of misery, but also to identify tools that could connect with people on a massive scale. Whereas hip hop, particularly in its golden era, relied on the treasured records of the artists’ parents, the live stage, and the recording studio, we use our computers, recording software, and beats that emulated the sampled digital audio sound from the past, providing a textured presentation we believe will enable us to connect with a broader audience.^[16] We chose the medium of podcasting to blend a sound that captures the energy of hip hop with the conversational venue for elucidating the legal events, actions, and personalities surrounding the trial and the movement for change, and serving the central purpose of edifying our communities and the movement.

Podcasts are a rapidly rising dynamic medium of internet audio narratives.^[17] We chose this medium as our venue to break down the law and Minnesota’s social context because it allows us to engage with people at any time and any place with an internet connection. The digital infrastructure of the twenty-first century offers incredible power for sharing knowledge and information. Knowledge liberates people.

Podcasts, through their incorporation of audio production, also provide an avenue for artistic expression that connects with audiences in special ways. We intentionally utilize that energy as well in the tradition of musical artists who imbue their expression with thoughtful reflections of political and economic realities of the communities they come from. ^[18] This medium, though non-traditional, still allows us to share legal knowledge with the same rigor and sourcing as a legal journal. However, it goes further than the typical legal journal because its reach extends beyond the academy, allowing us to connect with the average citizen who is informed on current events, but lacks the legal education to understand the legalese prevalent in academic discourse.

Podcasts are not the only form of dynamic media available today. The ways to connect with movements through different mediums is constantly evolving in the digital world, and with that evolution, brings the chance for legal advocates to build relationships in innovative and edifying ways. As lawyers, particularly those engaged in supporting movements for systemic change, we must go beyond the courtroom and use our legal education to advance the cause of freedom and justice. This approach will bust through the silos of a narrow professionalism and can fortify a symbiotic approach towards building a more perfect union.

 

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† J.D., 2019, University of Minnesota Law School; Host and Writer of “Breathless”: a podcast on the George Floyd Murder Case, available on Spotify, https://open.spotify.com/show/0JFJ2Jnvr1lSliUpDwV8a9?si=brVEIA1gTLW9I8cyDG_3zg.

†† J.D., 2019, University of Minnesota Law School; Producer of “Breathless”: a podcast on the George Floyd Murder Case, available on Spotify, https://open.spotify.com/show/0JFJ2Jnvr1lSliUpDwV8a9?si=brVEIA1gTLW9I8cyDG_3zg.

^[1] Linda Lacina, Nearly 3 billion people around the globe under COVID-19 lockdowns – Today’s coronavirus update, World Econ. Forum (March 26, 2020), http://www.weforum.org/agenda/2020/03/todays-coronavirus-updates.

^[2] The African American community in particular has suffered disproportionate infection and death rates from COVID-19. See Jean Marbella & Naomi Harris, Maryland’s Prince George’s County is among nation’s wealthiest Black communities, but it leads state in coronavirus cases, Baltimore Sun (July 9, 2020), https://www.baltimoresun.com/coronavirus/bs-md-prince-georges-coronavirus-20200709-pawnopbtgngx7kh6cmq6ugldni-story.html (explaining that lack of clinical access and primary care physicians in black communities contributes to novel coronavirus deaths); see also Corrinne Hess, ‘3 Times More Likely To Die’: Coronavirus Ravages Milwaukee’s African American Community, Wis. Pub. Radio (May 12, 2020), https://www.wpr.org/3-times-more-likely-die-coronavirus-ravages-milwaukees-african-american-community (“[A]n African American person is nearly three times more likely to die of COVID19 in Milwaukee County than a white person”).

^[3] Juliana Menasce Horowitz, Ruth Igielnik, & Rakesh Kochar, Trends in income and Wealth Inequality, Pew, https://www.pewsocialtrends.org/2020/01/09/trends-in-income-and-wealth-inequality/ (last visited July 18, 2020) (indicating that the wealth divide between upper-income families and middle-to-lower income families is sharply rising).

^[4] Sofi Sinozich, Biden consolidates support, but trails badly in enthusiasm: Poll, ABC News (March 28, 2020), http://abcnews.go.com/Politics/biden-consolidates-support-trails-badly-enthusiasm-poll/story?id=69812092; Carlo Invernizzi-Accetti, Joe Biden is a boring candidate. That’s why he is doing well, The Guardian (Aug. 19, 2020), http://www.theguardian.com/commentisfree/2019/aug/19/joe-biden-exciting-candidate.

^[5] Chris Graves, The killing of George Floyd: What we know, MPRNews (June 1, 2020), https://www.mprnews.org/story/2020/06/01/the-killing-of-george-floyd-what-we-know.

^[6] Id.

^[7] Vice News, George Floyd Protests Around the World Are Calling for Racial Justice, YouTube (July 10, 2020), https://www.youtube.com/watch?v=jlYnQXheup4 (showing footage from George Floyd protests that took place in London, Dublin, Berlin, Montreal, Toronto, Paris, Belgium, Australia, New Zealand, Brazil, Israel, and Iran).

^[8] At the national-level, the Senate Republicans and Democrats, as of this writing, have failed to pass a police reform bill.See Claudia Grisales, Kelsey Snell, and Susan Davis, Senate Democrats Block GOP Police Reform Bill, NPR (June 24, 2020), https://www.npr.org/2020/06/24/882530458/democrats-vow-to-block-gop-police-reform-bill-unless-republicans-agree-to-negoti. In Minnesota, the state where Floyd was killed, Senate Republicans and Democrats only passed a bill after significant partisan gridlock. See All Things Considered, Minnesota Police Reforms Stumble in Legislature, MPRNews (June 22, 2020), https://www.npr.org/2020/06/22/881826909/minnesota-police-reforms-stumble-in-legislature; See also, House, Senate agree to compromise police reform package https://www.house.leg.state.mn.us/sessiondaily/Story/15394

^[9] For example, over time, the Court has dramatically narrowed the scope of protections against racial discrimination under the Equal Protection Clause.  See, e.g., Washington v. Davis, 426 U.S. 229 (1976) (holding that racial discrimination violative of the Equal Protection Clause can only exist where there is a proven discriminatory purpose; discriminatory impact alone is not sufficient); see also Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (holding that state sponsored racial classification will not be held to violate the Equal Protection Clause, unless the classification was motivated by a discriminatory purpose and has a discriminatory impact).

^[10] Pierson v. Ray, 386 U.S. 547 (1967) (establishing a good faith defense for police officers who had a subjective belief that their actions were reasonable).

^[11] Brown v. Board of Education, 347 U.S. 483 (1954).

^[12] King’s strategic organizing played a vital role in the passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968.  See generally Gary Orfield, The Civil Rights Act and American Education, in Legacies of the 1964 Civil Rights Act 89–95 (Bernard Grofman ed., 2000); David Garrow, Protest at Selma: Martin Luther King Jr., and the Voting Rights Act of 1965 (1978); Jean Eberhart Dubofsky, Fair Housing: A Legislative History and a Perspective, 8 Washburn L.J. 149, 166 (1969).

^[13] The passage of the Civil Rights Act of 1964 was a watershed moment for school integration as it compelled states to act through its fund withholding provisions. See generally Myron Orfield, Milliken, Meredith, and Metropolitan Segregation, 62 UCLA L. Rev. 364, 375 (2015) (noting that the regulations under Title VI of the Act withheld federal funds to those schools that did not affirmatively further Brown’s mandate.).

^[14] Cornel West, The Role of Law in Progressive Politics, in The Cornel West Reader 269, 274 (1999). Dr. Cornel West is a Professor of the Practice of Public Philosophy at Harvard University and holds the title of Professor Emeritus at Princeton University. His critical insights on movement formation, race, and social change are indispensable for movement lawyers.

^[15] Id. See also Alexis De Tocqueville, The Temper of the Legal Profession in the United States, and How It Serves as a Counterpoise to Democracy, in Democracy in America 272, 273 (Vintage Books ed., 1990) (describing lawyers as an elite and respected class in American society).

^[16] Ben Duniker & Denis Martin, In Search of the Golden Age Hip Hop Sound (1986-1996), 12 Empirical Musicology Rev. 80, 85 (2017) (describing the prevalence and importance of sampling as a style of music production during the golden age of hip hop).

^[17] Jacyln Peiser, Podcast Growth Is Popping in U.S., Survey Shows, N.Y. Times (March 6, 2019), https://www.nytimes.com/2019/03/06/business/media/podcast-growth.html.

^[18] Artistry can be a powerful method of describing social challenges. Eartha Kitt says that artists, particularly live performers are in a unique space to express the desires of the people. “I believe that we as entertainers are very sensitive towards people because we deal with them practically every day of our lives. We are in front of their eyes. We can see and we can feel the vibrations of people of every race, creed, color, social positions…we are very sensitive…so if anybody will have an opinion on the desires of people who is better than an entertainer?”

Rahmaiya Lewis, Eartha Kitt interview 1968, YouTube (April 4, 2017), http://www.youtube.com/watch?v=2WFL6QZeqRg. See also Lauryn Hill, Final Hour, on The Miseducation of Lauryn Hill (Ruffhouse Columbia 1998) (discussing housing reform in the context of cautioning the listener against financial pursuits that sacrifice integrity: “For a minute, then run for senate/ Make a slum lord be the tenant give his money to kids to spend it/ And then amend it, every law that ever prevented/ Our survival since our arrival.”)