Abstract

Excerpted From: Nina-Simone Edwards, Thinking Outside of the “White Box”: An Afrofuturistic Critique of Terry Stops, 15 Georgetown Journal of Law & Modern Critical Race Perspectives 157 (2023) (170 Footnotes) (Full Document)

Eric Killmonger, the antagonist in Black Panther, delivers this incredible line in such a penetrating way that it invokes a question of a potential future: what would the United States be if the enslaved had jumped from the ships? Commentary on such impossibilities may seem futile, but Afrofuturism invites such wonderings about our past to inform possible futures. In fact, Afrofuturism requires simultaneously thinking about the past, present, and future in order to fully grasp race and power dynamics.

For many, Afrofuturism begins and ends with Black Panther. Wakanda is the epitome of a reimagined future for Black lives, with technology and systems so otherworldly that Wakanda surpasses all other nations. However, Afrofuturism is more than just a comic book series; Afrofuturism is “an attempt to explore the perceived possibilities of what may be in futures where Black people are alive, thrive, and in power.” It is a fusion of imagination and technology that stretches “beyond the conventions of our time and the horizons of expectation, and kicks the box of normalcy ... out of our solar system.” Afrofuturistic imaginings guide an enlightened view of the past in order to envision a liberated future. Afrofuturism is not only a paradigm but, for many, it can be a way of being.

Artistic expressions of Afrofuturism span literature, music, visual art, and other creative forms, from Octavia Butler to Basquiat to Sun Ra. With an eye towards imagining Black lives outside of the hierarchies that exist today, Black people can instead be presented as powerful, enlightened beings unburdened by the heavy chains of race, a concept invented to label anyone who was not white as “other.” Legal scholars such as Ngozi Okidegebe and Bennett Capers were conscious of these chains, and brought Afrofuturistic ideals to the law regarding criminal legal algorithms and citizen-police interactions. Other scholars have joined Afrofuturistic concepts with the law as it pertains to time and housing. Central to all Afrofuturistic conceptions, although not always explicitly mentioned, is the idea of privacy. Privacy is something that has been just out of reach for Black Americans since their forced arrival in the United States. Frederick Douglass describes the suffocating lack of privacy that enslaved people in the United States experienced: “At every gate through which we were to pass, we saw a watchman - at every ferry a guard - on every bridge a sentinel - and in every wood a patrol. We were hemmed in upon every side.” Enslaved people experienced this stifling encroachment that Douglass describes and it continued even when they were “freed.” Even after the end of slavery, this hierarchy, built on Black Americans' perceived inferiority, was cemented with the idea of Black Americans as “other.” “Prototypical whiteness” became the measuring stick that Black Americans were held against. When they inevitably fell short, their privacy was violated.

This Note explores the privacy violations that Black Americans experience, from an Afrofuturist perspective. Privacy is deeply connected to the concept of space, which is a constant theme in Afrofuturistic works. Some Afrofuturist works focus on outer space, whether this takes the form of images of Black people on spaceships, apocalyptic fantasies with Black people as the protagonists, or even the idea that Black people originated from Saturn. Other Afrofuturist works focus on cyberspace and how technology could offer alternative futures. Others address physical space; as stated by Ytasha Womack, Afrofuturism “tends to invoke freedom from walled-in spaces.” This Note explores this latter conception of space. American slavery and its legacy forced Black Americans into walled-in spaces that surveilled rather than enhanced privacy, assembled from built-to-last hierarchies that persisted beyond 1865. This Note traces this theme, detailing how this legacy of slavery has continued through vagrancy laws and is currently upheld through Terry stops.

This Note's emphasis on American slavery and its impact on Black-American privacy further embodies one of Afrofuturism's central tenets: reclamation, or Sankofa. Sankofa, defined as going “back to the past” to “bring forward that which is useful,” is a concept that “teaches us that we must go back to our roots in order to move forward.” Using an Afrofuturist perspective, this Note reaches back to the roots of those who were enslaved and reclaims “identities and perspectives that were lost as a result of the slave trade and colonialism.” This Note argues that the right to privacy was lost to Black Americans. In response to this loss, this Note hopes to bring forward an Afrofuturistic perspective of space and privacy, as well as a reclamation of that right.

Another element of Afrofuturism this Note draws on is the use of a visual representation to conceptualize social and racial hierarchies. In order to facilitate a visual representation of social and racial norms and hierarchies, all forms of prototypical whiteness will be placed inside a box, which will be called the “white box.” Sara Ahmed, a feminist writer and independent scholar, understood whiteness as a “straight line” or a “straightening device” from which who does or does not belong is established. Cheryl Harris, Critical Race Theorist and scholar, also envisioned a racial line between Black and white people: “Because whites could not be enslaved or held as slaves, the racial line ... was extremely critical; it became a line of protection and demarcation ....” Instead of thinking about whiteness as a straightening device or line, whiteness can also be seen as a box that one may step in or out of. The more “white” one is, the more they fit in the box.

A Black American may not immediately fit inside the box, given the color of their skin. However, characteristics, such as speech patterns, clothing, location, socioeconomic status, or education, may allow this person to place one foot or an arm in the box, which can possibly afford them some privacy. Following the Emancipation Proclamation, laws, such as the Black Codes and Jim Crow laws, embodied the idea of this “white box.” They specified activity that would render anyone outside of the “white box” a criminal. This led to “[B]lackness meet[ing] surveillance” any time police officers encountered Black Americans.

The idea of this “white box” stems from Afrofuturistic principles. Not only does it allow for easy visualization, but Afrofuturism encourages thinking “outside of the box.” The colloquial phrase epitomizes Afrofuturism in that Afrofuturism forces thought and creativity outside of current norms and hierarchies. This Note thinks outside of the “white box” as it pertains to privacy, and, with an Afrofuturistic perspective, looks to the past to understand current policies that violate Black-American privacy. Even more, Afrofuturism, beyond identifying harms and hierarchies, seeks to disrupt those hierarchies. This Note looks at the potential disruption to the privacy violations that are identified.

[. . .]

Afrofuturism, as a paradigm, guides speculation about the future. In the context of this Note, what would the law look like if the privacy invasions of Black Americans were not so normalized? This is only one specific example of how an investigation of the past forms realizations about the present to help navigate toward a changed future. Afrofuturistic imaginings can begin with the genesis of the United States-if Killmonger's idea of freedom were realized, what would be of the Black American? Perhaps then they would have had the right to be let alone, although only in the sense that, as Killmonger proposed, they drowned at sea.

Afrofuturistic conceptions can also begin in the present, with, as this Note suggests, the idea of the “white box” that permeates the structures, culture, and norms of the United States. The “white box” affords white Americans an invisibility cloak unless they are obviously committing a crime. Unambiguous Black Americans are automatically seen as outside of the “white box,” making them more visible to police officers and more likely to be labeled criminals. This labeling subjects Black Americans to privacy violations that white Americans are not privy to. Black Codeera vagrancy laws were the explicitly racist way to perpetuate the “white box.” Now Terry stops allow police officers to use the “white box” as a way to label all others reasonably suspicious. Just as vagrancy laws were deemed so vague that they allowed police officers to violate privacy virtually whenever they pleased, Terry stops should be discontinued due to the same vagueness.

The past is not just the past. Afrofuturistic analyses of the past shine a light on the hierarchies that laws were written to perpetuate. In a perfect world, these analyses can guide the application of an Afrofuturistic paradigm to future legislation and policies.

Georgetown University Law Center, J.D. 2024; University of Tennessee at Chattanooga, B.S. 2019; Senior Communications and Technology Editor, Georgetown Law Journal, Volume 112; Managing Editor, Georgetown Law Technology Review, Volume 8. © 2024, Nina-Simone Edwards.