Malcolm X as Legal Bogeyman
Zamir Ben-Dan
Introduction
In a different piece, I argue that human rights activist Malcolm X is a legal scholar and a legal expert.[1] The article first valorizes what I call “community experiential expertise,” a form of legal expertise articulated by dynamic scholars like Rachel Lopez, Ngozi Okidegbe, and Jocelyn Simonson, and uses it to qualify Malcolm as a legal scholar and expert. It then utilizes his speeches, interviews, and writings to build out a nuanced theory of American law, establishing it as a vehicle of white supremacy incapable of long-term racial salvation but serviceable for short-term goals. The article validates his theory using two different sets of historical developments. It recognizes his influence within the legal space. Finally, it responds to both potential objections to the claim that Malcolm is an expert in American law and potential counterarguments to some of his more specific assertions. That article, in sum, is a detailed examination of Malcolm X’s view of American law.
This Article does the reverse: it examines American law’s historical and contemporary view of Malcolm X. I uncover that, far from seeing him as a legal expert, the American law community—lawmakers, law enforcers, the courts, attorneys, and legal academia—in the main sees Malcolm as a legal bogeyman. It hates Malcolm X. It fears Malcolm X. It disdains Malcolm X. It sees Malcolm X as a threat to established order, as an enemy of the project that is American democracy. Unsurprisingly, legal academia is by far the only space within the American law community that is somewhat welcoming of Malcolm. Yet even there, some academics have manifested “Malcolm-as-bogeyman” in their writings. I finally argue that Malcolm-as-bogeyman is representative of the ugliness of American law, which is its steadfast commitment to white supremacy and racialized domination.
Like its companion article, this Article is important because Malcolm X matters. He matters not only in legal academic discourse, but in nonlegal academic discourse and societal discourse at large. Society has recognized that Malcolm’s voice matters, for good or for bad; new works are produced about him constantly.[2] Brandon Terry accurately stated: “Nearly sixty years after his brutal assassination, Malcolm X remains a figure of enduring importance in Black political life, thought, and culture.”[3] In nonlegal academia, Malcolm is still the subject of intense scholarly interest.[4]Inside of legal academia, however, he remains largely ignored, with most works prominently discussing him having been written in the 20th century.[5]
This is deeply unfortunate, in no small part because it speaks to a disconnect between legal academia and the outside world. Kempis Songster, Rachel Lopez, and Gerald Torres argue that legal academia “has often compounded society's alienation from the law and its institutions, producing legal scholarship that is described as irrelevant and hardly read outside of the closely guarded gates of academia.”[6] The inverse of this charge is also true: legal academia has also often compounded such alienation by failing to produce scholarship that matters to the world outside of it. This is not to say that legal scholars should blow with the wind and only write about whatever happens to be the rage of the moment. However, there should be some relationship between the things legal academics talk about and what is happening in the world around them. Otherwise, as Songster, Lopez, and Torres argue, legal scholarship winds up being irrelevant.[7]
This Article is relevant. Like my other Malcolm piece, this note helps to “bridg[e] the divide between law and the society subject to it.”[8] It critically interrogates the utility of American law as a vehicle for social justice at a time when such interrogation is already underway in American society. Public confidence in American democracy has reached an all-time low.[9] Calls for abolition still resound. There are also growing calls to rewrite the Constitution.[10] Under the Trump administration, the law is being used more openly for racially nefarious purposes. Events like the recent rebellions in Los Angeles indicate a growing skepticism in American law’s goodness.[11] And with all this, there still remains a rich history and deep legacy of American law being used to subjugate politically disfavored groups in America. As Samuel Moyn observes: “Scholars and teachers are newly interested in how legal regimes reflect and shape social and state power, and in intersecting subordination based on gender, race, sexual orientation, disability, or indigeneity. And inspiringly and rightly so.”[12] This Article’s examination of the law’s perspective of Malcolm adds to the critique of American law and makes the case that radical change is needed to make the United States a substantively more just society.
This Article is also the first in legal academia to examine American law and law enforcement through the unique framework of “racial gaslighting.” Developed by Angelique Davis and Rose Ernst, racial gaslighting consists of “the political, social, economic, and cultural process that perpetuates and normalizes a white supremacist reality through pathologizing those who resist.”[13] Davis’s and Ernst’s article has received extensive coverage outside of legal academia and even won an award.[14] Within legal academia, however, the phrase “racial gaslighting” appears in exactly twelve articles. Of those twelve, only eight of them cite to their article,[15] and only one of them even briefly applies the framework—in a footnote.[16] Racial gaslighting, however, is useful for analyzing American law’s view of Malcolm. In conjunction with this framework, I utilize the historical “Black bogeyman” trope as a metaphor for how the American law community views Malcolm.
This Article proceeds in three parts. Part I sets the record straight on who and what Malcolm X was and wasn’t. In recent decades, Malcolm has been distorted and reinvented to fit various political narratives, and all those versions disassociate Malcolm from Black nationalism and radical politics. I briefly but properly identify who Malcolm X was, and I strongly critique the attempts to make Malcolm a defender of or an apologist for American democracy. This proper identification is necessary to explain Malcolm-as-bogeyman.
Part II examines the American law community’s view of Malcolm as legal bogeyman. It uses the historical “Black bogeyman trope,” the myth of the angry, violent, criminally bent Black person, along with the racial gaslighting theory to frame Malcolm-as-bogeyman. It discusses how the enforcers of American law—the FBI, the U.S. Justice Department, the CIA, the NYPD, and the Manhattan District Attorney’s Office—viewed Malcolm X as a bogeyman. It then analyzes Malcolm’s image in American jurisprudence, highlighting Malcolm-as-bogeyman in three specific areas of caselaw. It discusses the opinions of the jurists, but it also highlights the mindset of some of the attorneys. Finally, it surveys Malcolm in the writings of legal academics. Malcolm’s reception in these writings is mixed; many scholars have written about him positively, but some reinforce Malcolm-as-bogeyman in various ways.
Part III turns a mirror on the American law community, exploring what its depiction of Malcolm-as-bogeyman reveals about itself. Its continuing fear of Malcolm is symbolic of something greater: the American legal arena generally remains intolerant of a Black radical critique of American law. This explains why critical race theory, a radical philosophy that has deep roots in Malcolm’s ideas, is American law’s new doctrinal bogeyman. Yet the Black radical critique exists and endures despite the American law community’s efforts to kill it because it still resonates, and it still resonates because the American law community, along with white society as a whole, refuses to dismantle the mechanisms of racial domination. In short, Malcolm-as-bogeyman is a representation of American law’s ugliness.
I. Understanding Malcolm X
To examine Malcolm-as-bogeyman, it is important to identify who and what Malcolm X was. This Part attempts to separate fact from fiction about Malcolm X, because much has been written over the past few decades that distorts and misappropriates the late human rights activist. This Part first describes the real Malcolm X and then tackles the reinvented versions of him. I don’t discuss the mythology of Malcolm as violent here, since that mythology is central to Malcolm-as-bogeyman.
A. Who and What Malcolm Was
Understanding Malcolm’s life experiences and the world in which he existed is vital to appreciating who he was and what he stood for. Malcolm saw firsthand the racialized violence of the state, first upon watching the family court system break apart his family and then as an accused and convicted person in the criminal judicial system.[17] He gravitated towards the Nation of Islam’s racial separatism message because of both his own experiences with white people and his observations and studies of how white countries subjugated and colonized the dark world for decades.[18] Moreover, having grown up in poverty and having been involved in street life,[19] Malcolm related well to the poor and the working class. This explains how Malcolm was able to recruit thousands of members nationwide to join the Nation of Islam (NOI). Malcolm’s message of Black self-determination resonated among urban Black people both while he was alive and even more after his assassination.
Fitting Malcolm into sure boxes is not an easy task; Malcolm was constantly evolving, especially after his departure from the NOI. However, it can be safely said that Malcolm was: 1) a revolutionary Black nationalist; 2) an enemy of white supremacy; 3) a selfless leader; and 4) an imperfect being who was self-improving.
1. A Revolutionary Black Nationalist
While Malcolm eventually renounced the NOI’s racial separatism, he never wavered in his belief in revolutionary Black nationalism. The idea behind Black nationalism was—and is—that Black people should control their own political, social, and economic destinies. The draw of Black nationalism has always been America’s racial context; Black nationalists linked the plight of Black people to the country’s racism and critiqued white supremacy.[20] As a Pan-Africanist, Malcolm also linked the struggle of Black people in America to the struggle of Black people all across the world.[21] While Malcolm may have been “reappraising” Black nationalism during the last months of his life,[22] his focus remained steadfastly upon improving the plight of people of African ancestry in America. The Organization of Afro American Unity (OAAU), which post-NOI Malcolm founded, remained an independent, all-Black organization the entire time that he was alive.[23]
Malcolm never wavered in his belief that Black people should protect themselves and resist racial oppression “by any means necessary.”[24] Ali Khan explains that the phrase “by any means necessary” was a concept invoked “to confront the legal means which initiate, entrench, and prolong the oppressive system.”[25] It is a phrase that, among other things, “exposes the failure of the legal system to provide justice.”[26] While “by any means necessary” was inclusive of violent resistance, it was not an exclusive call for violence, especially violence without provocation.[27] Professor Khan further explains that the phrase “is not a theory of anarchy. Nor is it a license for unlimited and arbitrary violence. It is a moral concept of freedom, acceptable only when the oppressor is unwilling to dismantle oppressive structures.”[28] Malcolm expressly repudiated the idea of Black people initiating acts of violence against white Americans.[29]
2. An Enemy of White Supremacy
Malcolm’s call for Black self-sufficiency was always accompanied by a critique of white supremacy and structural racism. Malcolm chided the white establishment for criticizing the plight of African Americans when it was responsible for that plight; he primarily blamed white society for the conditions of Black people. Malcolm spoke out against police brutality,[30] the racist media,[31] and the hypocrisy of politicians on both sides of the aisle.[32] When he travelled abroad in 1964 and 1965, he spoke consistently about the systemic mistreatment of African Americans and the incessant racism of white society.[33] Malcolm was never an apostle for “personal responsibility” as right-wingers conceive of it; he demanded that African American do for themselves because white society was too racist to accept them as equal human beings.
Because of America’s longstanding commitment to white supremacy, Malcolm was deeply critical of the white American establishment. He spoke frequently about a “power structure,” which in the United States included powerful politicians at the federal level, the intelligence community, and the mainstream media serving as apologists for the nefarious actions of the power structure.[34] The white power structure was committed to ensuring the permanence of white supremacy, and Malcolm was committed to its destruction. Malcolm also threatened white political and business interests with his international activism as well as his endeavor to bring World Court charges against the United States.[35]
Malcolm rejected Eurocentric norms and impressed upon Black people the importance of having racial pride. In one of his more famous speeches, he challenged the audience to consider the white standard of beauty that Black people adopted through centuries of conditioning:
Who taught you to hate the texture of your hair? Who taught you to hate the color of your skin to such extent that you bleach to get like the white man? Who taught you to hate the shape of your nose and the shape of your lips? Who taught you to hate yourself from the top of your head to the soles of your feet? Who taught you to hate your own kind? Who taught you to hate the race that you belong to, so much so that you don't want to be around each other? You know, before you come asking Mr. Muhammed does he teach hate? You should ask yourself, who taught you to hate being what God gave you. We teach you to love the hair that God gave you.[36]
He argued that Black people should be proud to be Black and encouraged them to embrace their Africanity. He insisted that Black people could do for themselves and excel without regard for white opinion. He demanded that Black learn to think for themselves and not be bound by the standards set by white society.
3. A Selfless Leader
Malcolm was also a selfless leader, fully committed to the liberation of Black people. In the introduction to Malcolm’s autobiography, M.S. Handler, a white journalist writing for the New York Times, noted that Malcolm terrified white society “because in him the white man sensed an implacable foe who could not be had for any price—a man unreservedly committed to the cause of liberating the Black man in American society rather than integrating the Black man into that society.”[37] Even Malcolm’s enemies, such as the FBI, knew that Malcolm could not be bought.[38] As a testament to his unwavering dedication, Malcolm was offered government positions in both Ghana and Egypt in the last year of his life.[39] Yet at a time when Malcolm’s enemies both within the U.S. government and the NOI were trying to kill him, and despite Malcolm’s tenuous financial situation, he “politely declined both offers because, he said, the economic security of the African American people had to come before his personal financial security.”[40]
4. An Imperfect Being
Finally, Malcolm, like all of us, was an imperfect human being. His blind worship of Elijah Muhammad led Malcolm to engage in reprehensible behavior, like negotiating with the Ku Klux Klan to acquire land for the fulfillment of Mr. Muhammad’s separatist vision.[41] It also inhibited Malcolm’s ability for years to face the reality of Mr. Muhammad having behaved hypocritically, engaging in conduct for which he punished other NOI members.[42] Obviously, Malcolm’s dismissal of the entire white race as “devils” was problematic. William Strickland notes how post-NOI Malcolm relied too heavily on the media to organize and was “announcing his ideas before they were fully formed, supported, or even in place, thereby telegraphing his moves and leaving himself open for checkmate and/or subversion.”[43]
Yet even with his imperfections, Malcolm was a man who was not only constantly evolving, but he was receptive to constructive criticism. Elombe Brath, a Harlem activist who popularized the phrase, “Black is Beautiful,” made this observation: “What impressed me about Malcolm X was his attitude about criticism…constructive criticism. He sought it out, savored it, decided whether or not he could benefit by it…. Malcolm, I believe, did not have a big ego. Which is really saying something.”[44] Malcolm’s attitudes on the usefulness of women in the movement, for example, was one area in which he exhibited some growth over time. Malcolm exhibited sexist attitudes towards women as an NOI minister, opining that the nature of women was to be weak.[45] However, Malcolm began to have more appreciation for the contributions of women in the fight for racial justice.[46] Thus, as Rosemari Mealy points out, Malcolm was evolving on this point as well, being more cognizant of the important role Black women played and were needed to play in the Black freedom struggle.[47]
B. Who and What Malcolm Wasn’t
In recent decades, a disturbing trend has emerged both in education and public discourse about the history of the racial justice struggle. Jeanne Theoharis and other scholars have written about the prioritization of the dominant civil rights narrative, a narrative of continuing progress in which nonviolent resistance stirred America’s moral conscience and moved it to accept African Americans as full citizens.[48] This revisionist history eschews Black radical politics as farfetched and a striving after wind, blotting out the crucial role that Black radical dissent played in the racial justice struggle in American history generally and in the 1960s particularly.[49] This eschewal has led to a dishonest telling of America’s racial history, a history in which many Black radical activists have been ignored while other giants and entities in African America have been repackaged and branded as people and groups more acceptable to the white mainstream. The point of this historical rebranding, as Mary Schmitt asserts, is to “normalize claims of the egalitarian nature of U.S. capitalism” and to “serve as evidence for the rise of a colorblind logic (and, later, a postracial logic) that claims race is no longer a significant factor for one’s successes or failures in American society, while serving as a testament to the democratic functioning of U.S. political and economic institutions.”[50]
Malcolm X has fallen victim to this trend. Professor Schmitt explains the draw of liberal reinventions of the late human rights leader:
In many ways, the liberal rescripting of Malcolm X can serve the incentives of neoliberalism even more effectively than, say, a civil rights figure, while, simultaneously strengthening the dominant civil rights narrative. The range of counterrepresentations in a liberal rewriting of Malcolm X, from a “hardened criminal” to a champion for self-sufficiency, can actually deliver a more evidentiary accounting of neoliberal subjecthood, testifying to neoliberal ideologies of meritocracy and self-responsibility. Furthermore, the liberal rewriting of Malcolm X strengthens the dominant civil rights narrative, because he is redeemed from his “criminal” ideas of separation and transcends his “criminal” association with the Nation of Islam, appropriately moving toward the civil rights movement and finally becoming an acceptable civil rights figure. Simultaneously, these counterrepresentations of difference help to reinscribe overtly racist stereotypes while propagating neoliberalism’s hyper-individualism…. [T]he magnitude of redemption of a liberalized Malcolm is meant to deliver a deeply affective lesson in neoliberal subjecthood, while simultaneously erasing radical forms of resistance and justifying worsening conditions of racial inequality made inevitable under racial capitalism.[51]
Here, I critique three particularly flawed twenty-first century reinventions of Malcolm X: 1) Malcolm as reinvented by late author Manning Marable; 2) Malcolm as a forerunner to President Barack Obama; and 3) Malcolm as a rightwing figure, as envisioned by Professor Stephen Smith.
1. Manning Marable’s Malcolm X
No written work embodies the neoliberal repackaging of Malcolm more thoroughly than Manning Marable’s “magnus opus” on Malcolm.[52] Touted as a definitive account worthy of replacing Malcolm’s autobiography, the book is truly a political hit piece on Malcolm poorly disguised as a work of sound scholarship. It contains a plethora of speculative, unsubstantiated, and unfounded allegations, seemingly with an eye towards making the book more palatable to a wider (and whiter) audience.[53] It demonstrates both a clear misunderstanding of Black nationalism and a palpable disdain for anyone positively associated with it or Malcolm, including his father, his sister Ella Collins, his wife Betty Shabazz, and Elijah Muhammad. It relies significantly on Malcolm’s enemies, while Malcolm’s family—his siblings, his wife, his children—were never interviewed.[54] It offers no new significant information on Malcolm; as Karl Evanzz points out, the book is “largely ‘reinvented’ from previous works on the subject.”[55]
Perhaps most damagingly, Marable’s book distorts Malcolm’s political views and transmogrifies him into a race-neutral, nonviolent reformer.[56] It grossly distorts Malcolm’s The Ballot or the Bullet speech, misclassifying it as a call for a “bloodless revolution” through embrace of the electoral process.[57] From that point, the book continues to claim that Malcolm renounced revolutionary Black nationalism while ignoring or distorting every speech, quote, and indication by Malcolm reflecting the exact opposite. For example, Marable utilizes Malcolm’s speech at the Oxford Union to draw a contrast between Malcolm’s new views and the NOI and to allege Malcolm’s belief in some amorphous “multiracial approach” that eschews violence.[58] Yet lost on Marable was the very proposition Malcolm was defending in the debate: “Extremism in the defense of liberty is no vice; moderation in the pursuit of justice was no virtue.”[59] In that speech, Malcolm said this:
So my contention is, we are faced with a racialistic society, a society in which they are deceitful, deceptive, and the only way we can bring about a change is to speak the language that they understand. The racialist never understands a peaceful language, the racialist never understands the nonviolent language, the racialist has spoken his type of language to us for over four hundred years. We have been the victim of his brutality. We are the ones who face his dogs, who tear the flesh from our limbs, only because we want to enforce the Supreme Court decision. We are the ones who have our skulls crushed, not by the Ku Klux Klan, but by policeman, only because we want to enforce what they call the Supreme Court decision. We are the ones upon whom water hoses are turned on, with pressures so hard that it rips the clothes from our backs, not men, but the clothes from the backs of women and children, you’ve seen it yourself. Only because we want to enforce what they call the law. Well any time you live in a society supposedly based upon law, and it doesn’t enforce its own laws, because the color of a man’s skin happens to be wrong, then I say those people are justified to resort to any means necessary to bring about justice where the government can’t give them justice.[60]
Unsurprisingly, no part of this excerpt appears in Marable’s book. Nor can they, not if Marable is to succeed in reinventing Malcolm into an advocate for American democracy. Malcolm’s words must be distorted and ignored, and the context in which he exists must be bastardized. In his critique of Marable’s book, journalist Glen Ford explained: “Essential terms such as ‘self-determination,’ ‘Black nationalism,’ ‘revolutionary,’ and ‘empowerment’ lose their meaning, abused and misused for the purpose of portraying the great Black nationalist leader as inexorably evolving into a ‘race-neutral’ reformer on the road to Obamaland.”[61] The reality is that Malcolm never receded from his advocacy for armed self-defense as the preferred tool of resisting white supremacy. Malcolm embraced the ballot as one option; “by any means necessary” encompassed all means necessary to achieve Black liberation.[62]
2. Malcolm as a Forerunner to Barack Obama
Along this wavelength, other scholars have made spurious legacy connections between Malcolm and contemporary Black politicians. For example, several writers have endeavored to draw links between Malcolm’s legacy and the election of Barack Obama to the White House.[63] To suggest that Obama’s presidency was a fulfillment of Malcolm’s goals is utterly ahistorical. Malcolm was an opponent of capitalism and U.S. imperialism, especially in Africa; Obama was a defender of both and remains the only president in the 21st century to openly bomb an African nation.[64]
If anything, Barack Obama’s presidency exemplifies the “house negro” title of Malcolm’s “house-negro-field-negro” theory, which explains how the white establishment elevates a Black person to prominence as proof of racial progress.[65] In turn, the elevated Black person is an apologist for the system and has no allegiance to the racial justice struggle.[66] A credible argument can be made that President Obama qualified as Malcolm’s “house negro”: he was elevated by Wall Street and the white corporate elite before and during his presidential run; his election was cast as the dawning of a new, post-racial era, suggesting significant progress; and he served as a proud apologist of the system, talking down to Black Americans while refusing to critique or call out contemporary white supremacy and systemic racism.[67] Connecting Barack Obama to Malcolm requires leaps of logic combined with an appalling ignorance of history.
3. Malcolm as a Rightwing Figure
On the other side of the political aisle, Professor Stephen Smith creates an even more improbable connection between Malcolm and conservative Supreme Court justice Clarence Thomas.[68] He could only make such a tenuous link by perverting the essence of Black nationalism, divorcing the message of self-reliance and independence from the larger critique of structural racism and the cry for radical resistance.[69] Professor Smith claims that Black nationalism “has acquired a broader alternative meaning,”[70] then provides a description of Black nationalism that is actual narrower.[71] The idea of self-help and self-determination has always been a feature of Black nationalism; an equally important feature has been a consistent critique of white racism as well as the recognition that white racism will not disappear, at least not nonviolently.
Professor Smith labors to liken Clarence Thomas to Malcolm, but his argument is wholly unpersuasive. For example, Professor Smith tries to cast Justice Thomas’s reprehensible opinions on affirmative action and school desegregation as identical to Malcolm’s blasting of African American acceptance of token integration in place of actual freedom and justice.[72] Professor Smith claims that Thomas’s opinions “urge more radical solutions to the problems facing black America today.”[73] Yet the solution he claims Thomas urges is neither local control of the school system—a truly Black nationalist solution that Malcolm supported[74]—nor a government commitment to remedying failing school systems. Instead, Thomas offers the classic right-wing solution of providing Black children with school vouchers.[75] As another example, Professor Smith cherry-picks quotes from Malcolm to frame him as a proponent of the right-wing mantra of “personal responsibility,” which absolves white supremacy of blame for the current conditions of African Americans.[76] He must cherry-pick because any fair examination of Malcolm in full context easily reveals the holes in such a framing.
The fact is that Malcolm was a fundamental critic of systemic racism and always placed the primary blame for the plight of African Americans on the white power structure. By sharp contrast, Clarence Thomas has never decried contemporary structural racism in a single opinion he’s ever authored in the thirty-plus years he has sat on the Supreme Court.[77] Malcolm was an advocate of race consciousness; Clarence Thomas is a devout supporter of colorblindness. Malcolm was an advocate for the less fortunate and a terror to the rich white elite; Clarence Thomas is a firm opponent of the downtrodden and a fan favorite of the rich white elite.[78] There is a mile-long chasm between Malcolm and Clarence Thomas, notwithstanding Professor Smith’s attempt to bridge the two.
In sum, some literary works have sought to bend and fit Malcolm X into the mainstream box as proof of some “redemptive quality” of American democracy. Writers and academics on both sides of the ideological aisle have engaged in this mythmaking. Such narratives are ahistorical and should be fiercely rejected. Malcolm was a radical activist and an enemy of white supremacist state power. His existence disturbs the linear progress narrative. He was critical of American rule-of-law principles because he recognized that American law served the interests of white supremacists. This is the real Malcolm X, and it is this Malcolm that the American law community sees as a bogeyman.
II. Malcolm X: The Bogeyman of the American Law Community
This Part examines Malcolm-as-bogeyman in the behavior of American law enforcement, in American jurisprudence, and in legal academia. I show how American law’s portrayal of Malcolm is illegitimate and hypocritical, ultimately resulting in an unjustified image of a crazed, violent, socially useless monster out to kill all white people. This pathologizing of Malcolm as a villain is classic racial gaslighting. Davis and Ernst “define racial gaslighting as the political, social, economic, and cultural process that perpetuates and normalizes a white supremacist reality through pathologizing those who resist.”[79] They further explain that racial gaslighting is dependent on “racial spectacles,” defined as “narratives that obfuscate the existence of a white supremacist state power structure.”[80]
Davis and Ernst used the Supreme Court’s decision in Korematsu v. United States to illustrate how racial gaslighting worked.[81] First, they noted how the Court used euphemistic language to describe the detention camps Japanese Americans were forced to stay in, thereby hiding the heinousness of their plights and obscuring “the existence of a white supremacist state power structure….”[82] They then explained how the federal government, white politicians, and even Japanese American leaders “called for voluntary compliance with the military orders and the attendant loss of personal liberty as well as land, businesses, homes, and the majority of personal possessions.”[83] Those who, like Fred Korematsu, defied these orders “became convicted criminals who were ostracized by many in the Japanese American community.”[84] Racial gaslighting is a means of preserving white supremacy through denial of its existence and the vilification of those who both expose and resist it.
Deploying this framework, I argue that the American law community has been racially gaslighting Malcolm from the 1950s up to the present. This pathologization has been particularly brutal because Malcolm didn’t just resist; he espoused radical politics. The racial spectacle while Malcolm was alive was that great progress was being made and that white supremacy was certainly not the kind of problem that required radical solutions. The racial spectacle in contemporary times is that great progress has been made and racial egalitarianism is thriving in America. Consequently, those who, like Malcolm, reject Americanism and vigorously oppose white supremacy are cast as angry, violent, crazed, and criminally bent. Put another way, they are cast as the “Black bogeyman.”
Section II.A fleshes out the “Black bogeyman” myth and makes it the racial gaslighting label for Malcolm. Sections II.B, II.C, and II.D examine Malcolm-as-bogeyman as constructed by American law enforcement, in jurisprudence, and in select law review articles.
A. The “Black Bogeyman” Trope
The term “bogeyman”[85] as a racist myth to synonymize Black people—Black men especially—with violence has a rich history in America. It was first popularized during Reconstruction to justify hypercriminalization via the Black Codes.[86] It took off during the Old Jim Crow Era, used to justify continued hypercriminalization, convict leasing, and lynchings during the nadir.[87] Shawn Fields tracks the evolution of the Black bogeyman myth from the Old Jim Crow to the present: in the late 1800s and much of 1900s, the Black bogeyman was “a violent and crazed sexual criminal”;[88] in the advent of Richard Nixon’s “War on Drugs,” the bogeyman was the “drug-crazed, violent inner-city criminal”;[89] with Ronald Reagan’s escalation of the war, the label “was reborn in the form of ‘crack whores’ and ‘crack babies’”;[90] in the 1990s, the new Black bogeyman label was “super-predators,” Black children “born without conscience or empathy.”[91] The Black bogeyman trope has contributed to mass incarceration, Karenism, racial violence against Black people, and even “racial hoaxes.”[92]
There are three enduring features of the Black bogeyman trope. First, the Black person, especially the Black male, is perceived as inherently scary and violent. Black people, especially Black men, inspire fear in white people. White society therefore perceives a strong need to protect itself against his raging, criminal tendencies. Fields quotes two congressmen who said as much on the floor of the House of Representatives in the 1920s, declaring their full support for lynchings as a means of protecting dangerous Black men against white women.[93] The hypercriminalization of the 1980s and 1990s reflected the belief of politicians in the Black bogeyman and the need to control him. Racialized police abuse and white society’s tolerance of it is deeply rooted in the Black bogeyman myth; the excuse police give for harming or killing Black people is that they felt threatened by the Black person they harmed or killed.[94]
Second, the idea of Black people being naturally prone to violence is fictive. White Americans justified the lynchings of Black men with claims that those men molested white women. In truth, however, a 1942 study found that only 17% of Black people lynched during the nadir were even formally accused of rape;[95] this is not to speak to how many Black men may have been falsely accused. The constant claims throughout the late 1800s and early-to-mid 1900s that Black men endangered white women were unsupported by the factual record. Like every other racial group, the great majority of African Americans are law abiding citizens. Nonetheless, the myth endures.
Third, whites are not the only adherents to the Black bogeyman myth. Black people, especially Black men, are perceived as dangerous and feared by nonwhites as well. Even during the Old Jim Crow Era, some Black writers and academics emphasized stereotypes of Black criminality and violence.[96] Professor Laura Fishman wrote about being socialized by Black women during the 1980s into believing that Black men were dangerous and violent, thereby feeding into the Black bogeyman myth.[97] While white politicians led the way, Black politicians also supported tough-on-crime policies to deal with Black offenders in their respective constituencies.[98] However, that nonwhite people subscribe to the Black bogeyman myth does not disqualify it from being a racist trope; its origin is undoubtedly anti-Black, and it only harms Black people.[99]
In light of this backdrop, characterizing Malcolm as the American law community’s bogeyman is quite apt. After all, an enduring myth about Malcolm, which he was made to answer to time and again, was that he was a wrathful man who preached and espoused unrestrained violence and criminal behavior. Such a critique was made not only by white people but also by many African Americans as well. This was, of course, a myth; Malcolm lived a law-abiding life from his NOI days onward and, despite the best efforts of the American law community as described below, was never implicated in criminal activity or illegal acts of violence. Yet like the Black bogeyman trope generally, it made no difference whatsoever; the American law community continued to synonymize Malcolm with violence and criminality. Malcolm is the bogeyman of American law; he is “an otherworldly creature that kidnaps and eats [white Americans].”[100]
B. Malcolm X: The Bogeyman of the Enforcers of American Law
The enforcers of American law—depicted here as the FBI, the CIA, the U.S. Justice Department, the NYPD, and the Manhattan District Attorney’s Office—saw Malcolm as a violent symbol of hate, a Black supremacist that wanted to kill white people. They deemed Malcolm a threat to established order and to the national security of the United States. They therefore sought to neutralize Malcolm “by any means necessary,” seeking to both weaponize established law against him and disregard established law when they felt appropriate to do so. Thus, their response to Malcolm resembles white society’s historical response to the Black bogeyman: destroy by any means, whether by law (e.g., penal statutes) or by extrajudicial action (e.g., lynchings).
1. The Governmental Use of American Law to Fight the Bogeyman
Malcolm first appeared on the FBI’s radar in 1950, when he was still an inmate.[101] Malcolm at that point had been corresponding with Elijah Muhammad via letters.[102] The FBI had been monitoring the NOI for at least a decade at that point.[103] When Malcolm began to grow the Nation after his release from prison, the FBI began a new investigation to determine whether Malcolm, Elijah Muhammad and others could be prosecuted for violating the Smith Act.[104] This statute, passed during World War II, made it “a federal offense to advocate or belong to any group which advocated the violent overthrow of the government.”[105] That such a charge was baseless is beside the point; the nation’s biggest law enforcement agency pursuing a potential prosecution under this act underscored its view that Malcolm was a danger to America.
Efforts to prosecute Malcolm for violating the Smith Act proved fruitless, but J. Edgar Hoover and the FBI remained undeterred.[106] They continued to surveil Malcolm and the NOI. The NYPD increased its own surveillance of Malcolm in 1957 after its assault on NOI member Johnson Hinton.[107] Then in 1958, the FBI, according to historian William Strickland, “designated him a ‘key figure’ (meaning that in the event of a race-related situation of national security, Malcolm would be rounded up summarily and held, like the Japanese-Americans of World War II, at the discretion and under the control of the government).”[108] That Malcolm would be marked for possible indefinite detention indicates how American law saw Malcolm as a danger to the country.
In 1961, U.S. Attorney General Robert F. Kennedy authorized Hoover’s counterintelligence operations against Malcolm and publicly admitted that the FBI was monitoring the NOI “for any, uh, violations of the law, uh, the federal law….”[109] This is the same Robert Kennedy who, in the face of savage assaults by white supremacists against the Freedom Riders in defiance of Supreme Court precedents[110]—in defiance of federal law—merely asked that the Freedom Riders “are not harmed.”[111] This is also the same Robert Kennedy that struck a deal with Mississippi senator James Oliver Eastland that activist Julian Bond recounted as follows: “In exchange for providing safety for the Freedom Riders, their civil rights can be violated, and they can be arrested in Jackson peacefully and calmly under laws which have twice been invalidated by the U.S. Supreme Court.”[112] Evidently then, Attorney General Kennedy considered Malcolm’s blistering indictments of American racism, but not the violence of white supremacists or the unconstitutional actions of the Mississippi government, worthy of federal investigation. Kennedy’s admission is classic racial gaslighting: state-sanctioned white supremacist violence is obscured, while Malcolm and the NOI are pathologized as potential criminals.
In 1962, the FBI conspired with Democratic Congressman Lucius Mendel Rivers to open a congressional investigation into the NOI.[113] Describing the organization as illegitimate, Congressman Rivers declared: “We know that the organization is dedicated on a national level to violence, bloody deeds, hatred, and death.”[114] The House Rule Committee approved the request and subpoenaed Malcolm and other NOI officials to testify before the House of Un-American Activities Committee (HUAC).[115] At this time, the Klan was literally murdering, assaulting, and firebombing the homes of scores of civil rights activists that were simply working to realize the Constitution’s promise.[116] Yet, there is no evidence that Congressman Rivers, or any congressperson for that matter, moved to investigate the Klan while Malcolm was alive.[117] Apparently, lawmakers did not consider either anti-Black violence or white defiance of the Supreme Court’s precedents to be un-American. Yet Malcolm and the NOI, uninvolved in the mainstream civil rights struggle and committed to racial separatism, were considered a danger to America. This too is racial gaslighting: state-sanctioned white supremacist violence is ignored, and Malcolm and the NOI are framed as violent criminals.
In March 1964, the intelligence community mobilized to destroy Malcolm after realizing that his split from the NOI was bound to make him more prominent than he already was.[118] The FBI coordinated with the NYPD’s intelligence outfit, the Bureau of Special Services (BOSS) to have Black informants infiltrate whatever organizations Malcolm formed.[119] The CIA also began to surveil Malcolm to investigate whether any foreign governments were subsidizing him.[120] In the coming months, the FBI collaborated with police departments all around the country to track Malcolm’s every move, and the CIA followed Malcolm around wherever he travelled internationally.[121] America’s biggest law enforcement entity and all of its intelligence agencies were increasingly fixated on a Black man whose only “crime” was to passionately oppose American racism.
Malcolm’s travels on the African continent to gather support for his UN petition further aggravated the federal government, and the government responded in part by seeking to weaponize the criminal judicial system against him. The Justice Department opened yet another investigation against him, seeking to build a case against him for violating two federal statutes: the Logan Act, which forbid American citizens from corresponding with a foreign government without federal government authorization; and the Foreign Agent Registration Act, which required any U.S. organization either receiving funds from, or serving as an agent of, a foreign government to register with the federal government.[122] As part of that investigation, Secretary of State special assistant Benjamin Read requested the CIA to investigate Malcolm’s domestic activities, which was generally outside the CIA’s purview, contending that Malcolm had “for all practical purposes, renounced his U.S. citizenship.”[123] Malcolm is hereby pathologized as an enemy of America, a threat to the internal security of the United States. Meanwhile, the federal government hotly denied his accusations of racism levied on the international stage.[124]
At the same time, the FBI moved to investigate Malcolm for inciting urban rebellions that occurred in Harlem and other cities in 1964. The State Department commissioned the FBI to look into allegations that Malcolm conspired with extremist groups to cause riots in the United States.[125] Zak Kondo notes how “FBI reports linked Malcolm and the Muslim Mosque to Harlem youth gangs….”[126] Federal intelligence sources also claimed that Malcolm was involved in a rebellion that would erupt in Washington D.C. in August, while he was abroad.[127] August came and went without such a rebellion occurring,[128] once again establishing that the allegations against Malcolm were meritless. Nonetheless, this demonstrates the commitment of American law enforcement to weaponize law to destroy an uncompromising critic of American racism.
To be clear, the FBI hated, targeted, and spied on all Black people that were actively, or even possibly, involved in the Black freedom struggle.[129] FBI Director J. Edgar Hoover hated Dr. Martin Luther King with a passion; his FBI surveilled Dr. King extensively and once wrote him a letter pressuring him to commit suicide.[130] In one egregious example of racial gaslighting, Hoover called Dr. King “the most notorious liar in the country” after Dr. King accused the FBI for failing to protect Black civil rights activists in Albany, Georgia.[131] Such a charge by Hoover obfuscated the existence of the agency’s systematic campaign to undermine the Black freedom struggle, and it set the stage for the racial gaslighting of Black activists generally and Dr. King specifically.
However, as Professor Kondo points out, the FBI “viewed Malcolm’s activities as more threatening to U.S. national security and foreign policy than [Dr.] King’s.”[132] The federal government attempted several times to subject Malcolm to the whims of the criminal judicial system not because he was a criminal, not because he committed any acts of unprovoked violence, and not because he violated any American law. If the enforcers of American law were truly concerned about violence and constitutional violations, white recalcitrance in the south would have provided them plenty of work.[133] Malcolm was the enemy of American law because he opposed white supremacy, the very system that American law was designed to protect and advance. Malcolm was the bogeyman of the enforcers of American law.
2. The Governmental Misuse of American Law to Fight the Bogeyman
American law empowers law enforcement agencies to investigate crimes and threats of criminal conduct. Yet, when the NOI made credible threats to Malcolm’s life post-split, law enforcement agencies refused to investigate them. The FBI, knowing full well that the threats to Malcolm’s life were real, dismissed them and declared that Malcolm was faking them for publicity.[134] The NYPD took the FBI’s lead and also ignored threats to his life.[135] Like the FBI, the NYPD knew that the threats were real; members of BOSS had infiltrated Malcolm’s organization and his security detail.[136] This was dangerous racial gaslighting; that local and federal law enforcement would know of credible threats to Malcolm’s life and refuse to act indicates that American law desired that Malcolm—their bogeyman—be killed.
In fact, the federal government actively sought to permanently silence Malcolm. The CIA likely poisoned him in Cairo, Egypt while he was eating at a restaurant; the incident occurred on July 23, 1964, the day before he was set to present his U.N. petition to the Organization of African Unity Conference.[137] The assassination attempt was similar to other jobs the agency pulled in the past.[138] The CIA also apparently planned to kill him in France in February 1965; the French government barred Malcolm from entering the country when he landed at least in part because they did not want his assassination occurring on their soil.[139] That the federal government deemed Malcolm’s international criticisms of American racism such a major threat speaks volumes about how the law viewed white supremacy—and how the law viewed Malcolm.
Additionally, both the FBI and the NYPD conspired with the NOI to have Malcolm assassinated. Through its informant John Ali, the FBI kept the NOI posted of Malcolm’s domestic whereabouts.[140] Thus, everywhere Malcolm travelled in the United States, the NOI would mobilize and try to kill him.[141] Approximately one week before Malcolm was murdered, a BOSS agent, Eugene Roberts, witnessed a dry run of the assassination and informed his superiors, but apparently not Malcolm.[142] Later that same week, another NYPD informant, Raymond Wood, had two members of Malcolm’s security detail arrested on bogus conspiracy charges.[143] The NYPD evidently took crucial steps to ensure that Malcolm’s assassination on February 21, 1965, would be successful. In other words, American law enforcement worked to destroy its bogeyman.
On February 21, the NYPD had no police presence in the Audubon Ballroom, where Malcolm was set to speak.[144] This was odd; at past OAAU meetings, there was consistently a visible police presence.[145] Instead, there were police officers stationed in Columbia Presbyterian Medical Center across the street from the Audubon, as well as in other parts of the building where the ballroom was located.[146] When shots rang out from the Audubon Ballroom in the afternoon, both the officers and the hospital staff delayed in responding.[147] It was members of Malcolm’s entourage that went to the medical center and grabbed a stretcher to try and transport Malcolm to the hospital.[148] NYPD officers finally intervened to save one of the assassins, Talmadge Hayer, from being killed by the crowd that had captured him.[149] The NYPD’s excuse for being conspicuously absent from the ballroom was that a member of Malcolm’s entourage told them that they were not wanted.[150] However, this excuse rings hollow considering that the NYPD did have a presence in the ballroom—in the form of undercover agents.[151] Thus, as Professor Kondo points out, it is “reasonably certain that Malcolm probably could not have been killed on February 21st had the NYPD insisted on a visible presence or taken other special precautions.”[152]
The government response to Malcolm’s assassination provides yet a further indication of the willingness of American law’s enforcers to refuse to uphold it. The NYPD naturally sabotaged the investigation, proceeding with the assumption that the NOI acted alone and arresting two men who were not involved in the assassination.[153] The Manhattan District Attorney’s Office delayed in bringing the case to trial for months.[154] It took pressure from local activists to finally get the District Attorney’s Office to prosecute the case.[155] The NYPD correctly determined—likely because it knew beforehand—that there were five assassins involved.[156] However, by the time the grand jury proceedings ended, the number of assassins was reduced to four; by the time of the trial, the government alleged that there were only three.[157]
The prosecution’s case consisted of unreliable witnesses.[158] The two innocent defendants took the stand in their own defense; upon cross examination, the prosecution focused more on their affiliations with the NOI than their alibis.[159] Talmadge Hayer, the only assassin to be brought to trial, was not treated similarly on cross examination; Professor Kondo noted how the NYPD and Manhattan DA “refus[ed] to definitively link Hayer to the NOI.”[160] The reason, Professor Kondo suggests, is because “it could have possibly exposed the NOI’s role in the murder as well as the FBI’s and local police unit’s activities in fueling the NOI-Malcolm war.”[161] The investigation and trial, in short, were exercises in racial gaslighting: the white supremacist state power structure was completely obscured, its role in destroying Malcolm concealed, while two innocent men became convicted murderers solely for belonging to an organization the power structure did not approve of—the bogeyman’s former organization.
Over fifty years later, after Muhammad A. Aziz and Khalil Islam had each served two decades in prison and lived with the stigma of being known as Malcolm X’s killers, the Manhattan District Attorney’s Office conducted a 22-month review of the case.[162] They concluded what Professor Kondo, Karl Evanzz, and other historians had already unearthed decades before: the two men were framed.[163] The review noted that the Manhattan District Attorney’s Office, the FBI, and the NYPD “had withheld key evidence that, had it been turned over, would likely have led to the men’s acquittal.”[164] This evidence included an FBI memo that pointed to William Bradley, one of four unapprehended assassins, who fired the fatal shot with a shotgun.[165] Yet despite the exonerations raising serious questions about the role American law enforcement played in the assassination, Congress “has long resisted calls from historians and activists for an investigation, keeping key details of the case hidden in the F.B.I.’s files.”[166] Put another way, the legislative branch of the federal government refuses to examine how American law contributed to the destruction of its bogeyman.
While he was alive, Malcolm identified American law as a tool for anti-Black subjugation; government at the local, state, and federal levels used, misused, ignored, and violated the law to oppress Black people. American law’s treatment of Malcolm validated his charge. American law in the 1960s protected and advanced white supremacy, and Malcolm was an uncompromising opponent of white supremacy. Thus, American law saw him as an enemy. The enforcers of American law—the FBI, the CIA, the NYPD, the Justice Department, the State Department, the CIA, and the Manhattan DA’s Office—used, misused, ignored, and even violated American law to effect one goal: the neutralization of Malcolm X as a threat to the established social order.
The American law community was partly successful; they physically killed the bogeyman. However, like an otherworldly creature, Malcolm just won’t die fully. He remains a bogeyman of the American law community, as evidenced by his treatment in American jurisprudence.
C. Malcolm X: The Bogeyman in American Jurisprudence
The American law community’s view of Malcolm-as-bogeyman is also evidenced in caselaw in various jurisdictions. Courts are likely to be more “neutral” towards Malcolm where his identity or image is irrelevant to the particular legal matter being adjudicated. For example, Muhammad A. Aziz and the estate of Khalil Islam, the men wrongfully convicted of Malcolm’s assassination, are now suing in federal court.[167] The two decisions issued thus far in the case suggest no animus towards Malcolm, because who he was and what he stood for is irrelevant to the question of whether the government acted wrongfully in convicting Aziz and Islam.
On the other hand, where it appears that Malcolm’s identity or image is potentially relevant to the determination of a legal matter, manifestations of Malcolm-as-bogeyman is evident in the court’s opinion. Moreover, just as Malcolm cannot be separated from his critique of white supremacy, the courts’ aversions to Malcolm invariably exude anti-Blackness. This section examines this judicial view of Malcolm as present in three areas of law: a) First Amendment law and content regulation; b) peremptory strikes in jury selection; and c) prejudicial effects on juries in criminal cases.
1. First Amendment Law and Content Regulation
Consistently, both courts and attorneys for one or both parties have equated the image of Malcolm X with the confederate flag. In Castorina ex rel. Rewt v. Madison County School Board,[168] the plaintiffs challenged a ban on clothing containing the confederate flag.[169] Relevantly, the school’s dress code specifically barred students from wearing anything that “in any way depicts alcohol, drugs, tobacco, or any illegal, immoral, or racist implication.”[170] The plaintiffs argued that other students in the school wore clothing with Malcolm X’s likeness with impunity.[171] The Sixth Circuit Court of Appeals accepted the argument, noting that “[t]he school’s refusal to bar the wearing of [Malcolm X] apparel along with the [c]onfederate flag gives the appearance of a targeted ban, something that the Supreme Court has routinely struck down as a violation of the First Amendment.”[172] Thus, the appeals court sees an equivalence between the confederate flag and Malcolm X.
Several other cases involving challenges to school bans on confederate flags featured this same argument. The respective courts in these cases never rejected this argument on the merits. In D.B. ex rel. Brodgon v. Lafon,[173] also decided by the Sixth Circuit, the plaintiffs’ challenge failed because they produced no evidence “that school officials were aware of the presence of clothing depicting [Malcolm X or] other political symbols.”[174] In Barr v. Lafon,[175] decided by the Sixth Circuit one year after Brogdon, the plaintiff’s challenge failed for the same reason: there was no evidence that students wore Malcolm X clothing with impunity.[176] Here, both the plaintiff and the defense “construe[d] Malcolm X iconography as the ideological counterpoint to the confederate flag….”[177] In Defoe ex rel. Defoe v. Spiva,[178] the Sixth Circuit rejected the plaintiffs’ challenge, noting that “testimony on this point shows that Malcolm X shirts are banned in Anderson County schools just as [c]onfederate flag shirts are banned.”[179]
Castorina was adopted by district courts outside of the Sixth Circuit. In Hardwick ex rel. Hardwick v. Heyward,[180] the United States District Court of South Carolina adopted the abovementioned Sixth Circuit precedents, despite being in the fourth federal judicial circuit.[181] It also rejected plaintiffs’ challenge for the same reason as the courts in Brogdon and Barr.[182] In Bragg v. Swanson,[183] the United States District Court of West Virginia applied Castorina to invalidate a school prohibition on the confederate flag, finding persuasive the argument that students wore Malcolm X clothing without penalty or discipline.[184] Like South Carolina, West Virginia is in the fourth federal judicial circuit. In White v. Nichols,[185] the United States District Court in Alabama cited to Castorina, and it rejected the plaintiffs’ challenge because “[t]here is no evidence to suggest that, at the time the ban was implemented, Nichols knew about and ignored incidents involving other symbols with racial undertones.”[186] Alabama is in the eleventh judicial circuit. Thus, Castorina has been influential on this topic, reifying the judicial connection between the confederate flag and Malcolm X.
The equating of Malcolm with white supremacist imaging and rhetoric is apparently an attractive legal argument outside of the school context. For example, in Mahon v. American Airlines, Inc,,[187] the Tenth Circuit Court of Appeals permitted the plaintiff’s equal protection challenge to go forward, reversing the lower court’s contrary determination.[188] The plaintiff, an employee of American Airlines, was disciplined for distributing white supremacist literature at a diversity fair sponsored by the job.[189] Part of his equal protection challenge rested on the fact that the company failed to “discipline or terminate an African American employee who wore a Malcolm X shirt at work.”[190] The court’s determination implies that, should the plaintiff establish that an employee wore a Malcolm X t-shirt with impunity, the plaintiff will be able to establish an equal protection violation. The court therefore equates white supremacist literature and clothing bearing Malcolm’s likeness.
The comparison of Malcolm X to the confederate flag is Malcolm-as-bogeyman in action. There is no other logical explanation for equivalencing the two. The confederate flag represented an unwavering commitment to human bondage. It is a symbol of treason, adopted by a faction of the country determined to split the union into two. Nothing Malcolm did could ever compare to those two things. Moreover, the confederate flag and other white supremacist materials and symbols are manifestations of a real system of oppression that predated the Constitution and remains in effect today. By contrast, even at his NOI “worst,” Malcolm never represented an existing counter-system of domination. Thus, for courts and attorneys to place Malcolm on par with a violent, traitorous group of racists who led an actual rebellion against the federal government deftly illustrates its association of Malcolm to violence as well as the fictiveness of this association in the first place. It is also classic racial gaslighting; the idea that Malcolm is the same as members of the confederacy depends upon a racial spectacle that obscures the true essence of white supremacy as it existed in the 1960s.
2. Peremptory Strikes in Jury Selection
In criminal cases, Malcolm X’s image has also been invoked by prosecutors as grounds for striking potential jurors during voir dire. In United States v. Hinton,[191] a prosecutor exercised a peremptory challenge on a Black male juror in significant part because the man “came into court wearing a Malcolm X hat. I believe that indicates a potential for an attitude that is not favorable to the government.”[192] As defense counsel pointed out, there were an abundance of such hats in America; the attorney him/herself owned one.[193] Nonetheless, the trial court denied the Batson challenge, and the Seventh Circuit Court of Appeals upheld the denial.[194] The appellate court wrote:
The prosecutor’s focus was on a perceived militant anti-government aspect of Malcolm X, not his race. The challenge is to a presumed extreme position, something that might interfere with one’s ability to be open and unbiased, even in a trial that does not carry any particular racial issues.[195]
In another criminal case, United States v. Peraza,[196] the prosecutor struck an African American juror in part because “he wore an emblem associated with Malcolm X….”[197] For reasons unknown, counsel for the defendants did not object on the day of the strike but waited until the day after.[198] Thus, Defendant Peraza argued for the first time on appeal that the “exclusion of a juror for associating himself with Malcolm X is tantamount to exclusion on the basis of race.”[199] The Sixth Circuit Court of Appeals deemed the objection untimely and the issue waived, but alternatively held that there was no basis for sustaining a Batson challenge: “We see nothing wrong with excusing jurors who choose to identify themselves with Malcolm X or any other controversial figure.”[200]
A third criminal case, however, met a different result. In Ricardo v. Rardin,[201] a state prosecutor exercised peremptory challenges against two African American women.[202] In explaining why he struck one juror, the prosecutor noted as one of his two reasons that she “was employed as an affirmative action investigator and was reading The Autobiography of Malcolm X during the voir dire.”[203] The petitioner exhausted his state court appeals and filed a writ of habeas corpus.[204] The Northern District of California found the prosecutor’s reasons sufficiently race neutral and the denial of the Batson challenge reasonable.[205] The Ninth Circuit Court of Appeals, however, reversed the denial of habeas corpus, finding both of the prosecutor’s reasons for striking the woman race-related.[206] Regarding her employment and her book of choice:
In his explanation for his removal of Jones-Dulin, [the prosecutor] expressed concern that this “black woman” would analyze the case which, in his words, contained “racial overtones,” based on race. He noted with disapproval that he had observed her reading The Autobiography of Malcolm X, and expressed displeasure that she worked as an affirmative action administrator…. Although the prosecutor also noted that Jones-Dulin had been reading during voir dire, the thrust of his remarks indicated that his primary rationale was founded primarily on racial concerns.[207]
The difference between Rardin and the first two cases is that the Rardin prosecutor was apparently less shrewd than the first two, although one would not grasp that from reading the district court’s opinion. The district court labeled the prosecutor’s reasons “race neutral” even though the prosecutor expressly mentioned her race in his explanation.[208] Fortunately, the Ninth Circuit saw through the charade; the idea that a Black woman reading Malcolm X’s autobiography was incapable of fairly deciding a case is incomprehensible unless her race, as well as racial assumptions surrounding associations with Malcolm X, at least partly caused that supposed incapability.
Nonetheless, there were seven courts that saw no problem with prosecutors striking potential jurors because they wore clothing or read books associated with Malcolm.[209] To claim, as the Seventh Circuit Court of Appeals did in Hinton, that Malcolm’s race was in no way considered by the prosecutor is to defy logic. Malcolm’s “perceived militant anti-government aspect” is inseparable from race, because race was the basis of any perceived militancy or anti-government attitudes on his part. The court’s claim that the prosecutor’s challenge was “to a presumed extreme position” is a curious assertion; “extreme position” to whom? What is the basis for “presuming” this position to be extreme? Try as the court does to tiptoe around race, the only logical reason why one would assume a “militant anti-government” attitude from seeing a Malcolm X hat is because Malcolm X was critical of the government for its handling of the race problem.
The Sixth Circuit Court of Appeals’ rationale is similarly unpersuasive. Its classification of Malcolm as a “controversial figure” as justification for excusing a juror raises similar questions regarding perspective: Malcolm was a “controversial figure” to whom? By what criteria does the appeals court deem Malcolm “controversial” to the point where merely wearing his emblem is grounds for proper excusal of a potential juror? Used here, the word “controversial” is weaponized, used with intent to instill in the minds of legal practitioners, fellow jurists and whoever else might read the opinion that the person labelled as such is someone who is problematic, who is scary, who should be avoided. Moreover, those who “choose to identify themselves with” a figure the court has labeled as “controversial”—as one apparently does merely by wearing an emblem of that person—compromise their ability to serve on a jury.
As a comparison, it is fair to say that the Sixth Circuit does not consider Thomas Jefferson “controversial.” The likelihood of an attorney seeking to remove a potential juror for wearing clothing with Jefferson’s likeness on it is pretty close to zero. Yet, Jefferson was a slaveowner who believed in white superiority and Black inferiority to his dying day. He fathered children from an underage enslaved Black teenager despite his public condemnation of interracial sexual contact.[210] He actively supported a successful—and violent—overthrow of the government that ruled colonial America. By almost any metric in which one would deem Malcolm—who never enslaved anybody, raped anybody, or supported an existing, violent revolution—a controversial figure, Thomas Jefferson more than qualifies. The only difference that would weigh in favor of calling Malcolm X controversial but not Thomas Jefferson is in whose interests the two of them advocated for. In calling Malcolm “controversial,” the Sixth Circuit racially gaslights him; white supremacy’s ubiquity is obscured, and he is castigated.
Ultimately, both appellate decisions evidence Malcolm-as-bogeyman. His mere likeness on a cap almost seems to give the American law community members in the Seventh Circuit PTSD; the prosecutor merely seeing an X on headwear conjures up the memory of a monster, an otherworldly creature who is a threat to the government and takes “extreme position[s].” Worse, that memory is implicitly transferred to the person donning the cap or wearing the emblem; now, an attorney—in these instances a prosecutor—is allowed to deem that person a threat to the judicial process of that attorney’s particular case and prohibit that person from serving on a jury of their peers. Like the bogeyman, the danger that person potentially poses is imaginary. This is especially true with Hinton, where the defense attorney—who took an oath to uphold American law—also owned a Malcolm X hat. The racial gaslighting of Malcolm now extends to the potential juror.
Granted, the prosecutors gave additional reasons as to why they sought to remove the subject African American juror in each case.[211] However, with one exception, the courts expressly endorsed the Malcolm X rationale as a legitimate reason for excluding jurors. These cases further evidence the aversion courts have to Malcolm. Moreover, to legally permit the striking of Black jurors for having any association with the human rights leader, the courts divorced his perceived methods of activism from the underlying cause he dedicated his life to. With this juridical hopscotch, any Black person who wears anything with his likeness may be legally incapable of deciding a criminal case on the merits.
3. Questions of Prejudice to Juries in Post-Conviction Proceedings
Finally, Malcolm X’s words and views have been the basis of judicial findings of evidentiary and constitutional violations relating to fair trials and jury deliberations. In People v. Budzyn,[212] the Michigan Supreme Court reversed the criminal conviction of a white police officer for second-degree murder; the victim was a Black man.[213] The officer’s partner was also convicted of second-degree murder and had his conviction upheld,[214] but a federal district court granted habeas corpus to the partner, and the Sixth Circuit Court of Appeals affirmed.[215] Part of the basis behind the reversal of the conviction and the granting of habeas corpus was that the jury watched Spike Lee’s movie Malcolm X.[216] The Michigan Supreme Court quoted from parts of the movie the jury saw, highlighting the introduction and scenes related to racialized police abuse.[217] The court partly held that the film could have tainted the jury’s deliberations and verdict.[218] The federal district court made use of one of the juror affidavits submitted by the defense, asserting that the showing of the movie “was particularly harmful because of the undeniable parallels between the images and words of that film and the conduct alleged against the defendant(s).”[219]
In State v. Grayson,[220] an African American man was convicted of murdering a white woman in Minnesota.[221] When Grayson took the stand in his own defense, the prosecutor cross-examined him about his “alleged hatred of white women, and his familiarity with the political views of Malcolm X and the hat with the initial ‘X.’”[222] His hat with the “X” initial was admitted into evidence at trial over his objection.[223] The Supreme Court of Minnesota found that the prosecution’s Malcolm-focused cross examination, as well as the admission of the hat, were nonprobative, highly prejudicial, and violative of Grayson’s First Amendment rights.[224] In explaining the prejudicial effect, the court said that Malcolm’s name, “for many people, acts as a lightning rod with negative racial overtones. We have no doubt that while the image of Malcolm X may have changed in some people’s minds over the years, it is an image which in many people’s minds raise the spectre of racial hatred.”[225]
Malcolm-as-bogeyman was as obvious as it could be in this trial. Both the prosecutor and the trial court exhibited it, the prosecutor through affirmative conduct and the trial court by allowing most of it. The prosecutor cross-examined Grayson on Malcolm’s NOI, pre-hajj views, particularly his old view that all whites were devils and his opposition to interracial relationships.[226] The prosecutor evidently struck the tone that those were the views Malcolm died with; that line of cross would have been pointless otherwise. Thus, the prosecutor froze Malcolm at 1963, painting the image before the jury of a white-person-hating demagogue. That Malcolm renounced his belief that all white people were devils mattered not; in fact, it bolsters Malcolm-as-bogeyman because the violent image the prosecutor sought to construct was fictive.
The reason the prosecutor sought to introduce the hat was palpable: it established Grayson’s association with the American law community’s bogeyman, a Black man who was out to kill all white people. Certainly a Black man, charged with the murder of a white woman, who identified with a white-people-hating bogeyman like Malcolm, must be guilty as charged. The Minnesota Supreme Court said as much: “Yet the message sent to the jury was that because Grayson had knowledge of Malcolm X and his political views, he personally adopted those views and acted in conformity with them.”[227] Thus through cross examination and the admission of legally irrelevant evidence, the prosecutor extended Malcolm-as-bogeyman to Grayson, prejudicing his trial.
The trial court also exhibited Malcolm-as-bogeyman in its rulings. The judge sustained the question about whites being devils but permitted the remainder of the cross examination as well as the introduction of the “X” hat as evidence.[228] There were obvious relevance issues here; having a Malcolm X hat in no way established that a person committed a murder. Nor does one having knowledge of Malcolm’s pre-hajj views about white women suggest that a murder was committed. How the trial court could have seen nothing wrong with either the line of questioning or the hat being admitted can only be logically explained by Malcolm-as-bogeyman. Again, the Minnesota Supreme Court said as much, finding the government’s argument validating the Malcolm line of cross “suspect because the state never made any effort at trial to connect Grayson’s knowledge of Malcolm X’s political views with any fact at issue.”[229] Yet in the prosecutor’s and judge’s minds, such a connection was made: Malcolm was a bogeyman who hated white women, and so the Black defendant on trial who also hates white women must be guilty.
To its credit, the Minnesota Supreme Court’s decision did not exhibit obvious anti-Malcolm animus. The court’s statement that Malcolm’s image “is an image which in many people’s minds raise the spectre of racial hatred” captures the underlying logic of Malcolm-as-bogeyman. The court ultimately upheld the conviction on the ground that the evidence of guilt was overwhelming; crediting the reasons given, its conclusion is not unsound.[230] Even so, the court does not challenge the veracity of the lower court’s view of Malcolm and stops short of rebuking the prosecutor for playing to the racist narrative. The court’s claim that it “cannot from this record ascribe to the prosecutor any improper racial motivation for the introduction of this evidence”[231] is baffling. The prosecutor did not have to explicitly spell it out; there is literally no other logical explanation for his conduct than that he had improper racial motivations.
The Michigan cases are categorically different from every other case discussed in this section because they feature more than just Malcolm’s likeness, image, or symbol displayed on clothing or on a book cover. The Michigan cases involved the showing of a film, which featured statements from Malcolm’s character about police brutality as well as scenes related to racialized police abuse, including snippets of the videotaped beating of L.A. motorist Rodney King.[232] There admittedly would be some similarities between certain scenes in the movie and allegations in the instant case, and there is no indication that, despite the defense’s objection, the trial court gave the jury a specific instruction regarding the movie before the jury retired for deliberations.[233] Consequently, the judicial imputations of inappropriateness related to associations with Malcolm X seem more justifiable than they are in the abovementioned cases.
Nonetheless, a close reading of the cases suggests that the real problem the Michigan Supreme Court and the federal district court had was deeper. Michigan apparently follows the federal legal standard regarding jury exposure to extraneous information and influences. Thus, for an extraneous information to have had a real and substantial possibility of influencing a jury verdict, the law (at that time) required a finding that the information relate to issues “material to the guilt or innocence of the defendant.”[234] Courts are not allowed to “disturb jury verdicts on appeal when extraneous information relates only to issues not material to the guilt or innocence of the defendant.”[235] Additionally, there must be a “direct and rational connection between the extrinsic material and a prejudicial jury conclusion, as distinguished from a connection that arises only by irrational reasoning.”[236] The law deems the trial court judge “uniquely qualified to appraise the probable effect of information on the jury, the materiality of the extraneous material, and its prejudicial nature.”[237] Thus, while the appellate review of the extraneous information’s effect is independent, the judge’s determination about “the effect of the alleged juror misconduct deserves substantial weight.”[238]
While there is no bright-line test for determining whether an extraneous communication had a real and substantial possibility of influencing the verdict, case law is always helpful in deciding legal matters. The Fifth and Ninth Circuits created a five-factor test for courts to utilize when making such determinations.[239] Courts have been more inclined to find the required possibility of influence when jurors received communications during the jury deliberations.[240] In one case, the Ninth Circuit Court of Appeals found that a magazine article on fraudulent tax shelters brought into the jury room and discussed by at least one juror during deliberations deprived the defendants of a fair trial in their convictions for conspiracy to violate the tax law.[241] The article “was the cover story in the magazine. It not only discussed fraudulent schemes that were very similar to the one the defendants were charged with, but described the problem as a growing national concern and deplored the light sentences frequently associated with such schemes.”[242] More importantly, the article was discussed and open “amidst the conversations in there [the jury room].”[243] In another case, also during deliberations, two jurors consulted medical encyclopedias regarding the defendant’s blood type and the effect of morphine on a trial witness, both of which were material to issues of the defendant’s guilt.[244] The court concluded that the jury’s exposure to this extraneous information violated the defendant’s trial rights.[245]
Regarding the Michigan Supreme Court’s treatment of the Malcolm X film in Budzyn, a few observations are in order. First, in discussing the film’s potential for influence, the majority opinion neither cites case law, analogizes to any precedents, nor applies the five-factor test. Second, the majority magnifies four scenes, none of which are longer than three minutes, out of a nearly three-and-a-half-hour movie. Third, the majority subtly minimizes the inconvenient fact that the movie was not seen during deliberations but was viewed a week prior to the jury being instructed on the law.[246] Fourth, there is no consideration whatsoever of the trial judge’s finding that the showing of the movie did not create a real and substantial possibility of jury taint. Fifth, the court admits that the film “did not, strictly speaking, introduce any outside information about this event….”[247] Sixth, and most important, the court does not identify how a “direct and rational connection” exists between the showing of the film and the jury’s verdict. To the contrary, to speculate that jury deliberations in these cases were likely influenced by a three-and-a-half-hour film seen a week prior because of four short scenes involving the police is to draw “a connection that arises only by irrational reasoning.”
The federal district court adopted the reasoning of the state supreme court in finding the showing of the film prejudicial. Of the three reasons advanced by the defendants and sanctioned by the state supreme court, the federal district court found the film showing particularly egregious.[248] Because it adopted the state supreme court’s reasoning, the federal district court also didn’t apply the five-factor test or analogize to any case law in its discussion of the film. The decision lays out the opening monologue that the state court opinion only describes, taking great care to note how the footage of Rodney King’s beating was “shown in slow motion—and repeated eight times—as the American flag begins to burn.”[249] That this entire opening scene covers the first two minutes of a three-and-a-half-hour movie is unsurprisingly absent from the federal court’s decision.
The courts attempted to dictate what effect the film had on jurors a whole week later. The Michigan Supreme Court declares that the “power of these words might have triggered an emotional response by the jury….”[250] It claims that the film “may have undermined the juries’ ability to examine impartially defendants’ credibility.”[251] It avers that the four-minutes’ worth of police brutality images from unrelated incidents “confirmed the people’s description of defendants’ conduct, thereby lending additionally credibility to the people’s case.”[252] The federal district court speaks more definitively: “The movie was shown approximately seven days before the jury began deliberations…. Thus the images and words from the film would be fresh in their minds as they began the deliberative process.”[253] The court claims that the jurors had the “impression…that the movie was ‘sanctioned’ by the trial court judge.”[254] How both courts could be so sure that the movie impacted deliberations in the manner they describe is anybody’s guess.
That two courts could be so convinced that the Malcolm X movie influenced jury deliberations a week later makes more sense when considering a fact that neither decision expressly admits: the juries in both cases were majority Black.[255] Thus, just like the cases regarding peremptory challenges to Black prospective jurors wearing Malcolm X memorabilia or reading a Malcolm X book, there is an unspoken assumption by both courts that Black jurors watching a Malcolm X movie are unable to fairly decide guilt or innocence in a police brutality case where the officer is white and the victim Black. Seeing brief scenes of unrelated incidents of racialized police abuse during a break in trial proceedings, as far as these two courts are concerned, created a real and substantial possibility that the majority Black juries would presume the defendants guilty when they began deliberating a whole week later.
These decisions are insulting. As Sheila Bedi observes, these decisions “completely ignore the reality that many of the jurors who watched the movie, highlighting injustices faced by people of color, lived those injustices everyday….”[256] This observation suggests racial gaslighting at work, not just of Malcolm but of the Black people involved in the case. The racial spectacle that pervaded the case and the subsequent reversals of the officers’ convictions was that racialized police abuse is rare, if not mostly nonexistent. This set the stage for the Black participants in the trial to be gaslit: the victim, Malice Green, is depicted as a violent criminal,[257] and the Black jurors are deemed unfit to fairly decide a case where racialized police abuse is alleged, especially where they were influenced by the bogeyman himself.
In reality, as Kevin Sralla writes, it is highly unlikely that the film showing moved the jury to deliberate in a manner they wouldn’t have otherwise: “If anything, the jury’s viewing of the Malcolm X film for entertainment…would have merely triggered an emotional reaction already triggered by the trial itself and, as such, had a cumulative, non-prejudicial effect.”[258] In his partial concurrence, Chief Justice Conrad Mallett Jr., the only Black member of the Michigan Supreme Court at that time, took issue with the majority’s assessment, stating that “[t]he jurors should be credited with enough sophistication to separate entertainment from evidence.”[259] Justice Patricia Boyle, who concurred with one decision fully and with the other in result, noted how there is “a fundamental presumption of the judicial system that all Americans are equally capable of fairly discharging their public responsibilities.”[260] Black jurors watching a Malcolm X film a week before deliberations began did not vitiate that presumption.
These cases showcase the law’s perception of Malcolm X as a bogeyman. Surely, the idea of Black jurors choosing to watch a cinematic tribute to the bogeyman, during a break in proceedings, one week before jury instructions and deliberations, was simply too intolerable to let their verdict in a separate criminal matter stand. These jurors could not view such a tribute without being hypnotized by the bogeyman’s growls and falling under its spell, unable to heed the judge’s instructions a week later because they have been enveloped by a new spirit of Malcolmite hatred of white people generally and white police officers specifically. Thus, the guilty verdict was based not on the facts of the case but on a Malcolm-inspired police bias.
Fascinatingly, even the courts and judges that didn’t think the jury was tainted nonetheless took issues with the film showing. The Michigan Court of Appeals upheld the conviction but reportedly called the showing of the film “highly inappropriate.”[261] Chief Justice Mallett was “most concerned with the jurors’ exposure to the movie Malcolm X” as well as an additional extraneous fact.[262] Thus, all the courts and almost all the justices thought it problematic that majority-Black juries viewed a Malcolm X film during court-mandated recesses. This too is Malcolm-as-bogeyman, although to an obviously lesser extent than the judges and courts that reversed the convictions.
In sum, where cases involved judgment about Malcolm X’s views, the American judiciary emphasized Malcolm-as-bogeyman in its jurisprudence.
D. Malcolm X: The Bogeyman of Legal Academics
Legal academia is the one space within the American law community where Malcolm is not almost uniformly depicted as a bogeyman. Professor Khan’s article on Malcolm—easily the most cited law review article that focuses primarily on the human rights activist—classifies Malcolm as “an American hero”[263] and “constructs a theory of freedom for oppressed peoples of the world based on ideas scattered through Malcolm's speeches, interviews, and his autobiography.”[264] Charles Lewis Nier III’s article on Malcolm recognizes his significance in the human rights and international law fields.[265][A1] Gary Peller recognized Malcolm as the forerunner to critical race theory.[266] Other legal scholars who have written about Malcolm have emphasized his positive impact and influence on the Black freedom struggle and on other racial justice activists of his day.[267]
Yet, most of these articles are from the twentieth century. There is little legal scholarship that focuses primarily on anything related to Malcolm X in the twenty-first century.[268] I could find no legal scholarship in the twenty-first century that recognizes Malcolm as an authority of any sort when it comes to American law. It is also not lost on me that much of legal academia’s most extensive works on Malcolm appear either in specialty journals or in law journals that are not considered “elite.” The dearth of recent scholarship on Malcolm X, as well as its near absence from “elite” journals, is potentially indicative of Malcolm-as-bogeyman; since the American law community generally views Malcolm as an angry, violent, white-people-hating demagogue, it sees no value in discussing him and beholds no “relationship” between Malcolm and American law that warrants any kind of scholarly analysis.
Moreover, Malcolm-as-bogeyman manifests in some writings of legal academics. This section reviews a few of those writings. Not every criticism of Malcolm necessarily villainizes him. As one example, Cass Sunstein takes issue with Malcolm’s use of dehumanizing language to refer to white people.[269] While I disagree with parts of his critique and am sensitive to his Martin-versus-Malcolm comparison for the reasons I explain later,[270] the piece does not really evidence Malcolm-as-bogeyman. Moreover, I reject the idea that Malcolm espoused racism (although I do accept that he was racially prejudiced) based on what I view as the appropriate definition of racism: a system that confers benefits and detriments on the basis of race.[271] However, I don’t think allegations of racism by itself evidences Malcolm-as-bogeyman, because one can be racist (or racially prejudiced) without being angry or violent.
Instead, this section focuses on writings that explicitly or implicitly view Malcolm as a bogeyman, as one committed to anger and violence against whites while lacking in any socially useful purpose.
1. Bogeyman By Circumstance
Some legal academics and writers overtly perpetuate the enduring myth of Malcolm as one who hated all white people and was solely committed to violence and anger.[272] John Kang’s article on Malcolm and Dr. Martin Luther King, Martin v. Malcolm: Democracy, Nonviolence, Manhood,[273] is a great example of scholarship that emphasizes Malcolm-as-bogeyman. Professor Kang’s casting of Malcolm as an angry, one-dimensional rabble-rouser obsessed with violence is best exemplified by the last line of the conclusion: “On the other hand, violence and separatism are likely to appear more attractive to those who have lived Malcolm’s life, a life damaged by violence as well as sustained by it.”[274] Professor Kang attempts to attribute Malcolm’s embrace of revolutionary Black nationalism to his violent, impoverished upbringing and an ignorant infatuation with crime.[275]
While the premise that individuals are influenced by their environment is certainly fair, Professor Kang’s analysis is rather simplistic and facile. It ignores completely the multi-faceted nature of Malcolm’s approach to America’s race problem, reducing his proposed solutions to a naked call for violent revolution. Malcolm consistently advocated for Black people to develop their own businesses and communities, and he helped the NOI become an economic powerhouse.[276] He encouraged African Americans to vote—while cautioning against having allegiance to any existing political party—and averred that Black people should exercise their suffrage rights strategically.[277] Finally, Malcolm spent the latter year of his life seeking to internationalize the struggle by having the United States charged with human rights violations in the World Court.[278] None of this is mentioned in Professor Kang’s article. In fact, with all the speeches and interviews Malcolm gave in his lifetime, Professor Kang relies almost exclusively on just one speech, Malcolm’s Message to the Grassroots from November 1963,[279] to describe “What Malcolm Saw as the Solution.”[280]
Professor Kang’s analysis also suggests that Malcolm, despite having both undergone a moral reformation and rejected the life of crime he used to live, was somehow incapable of arriving at his belief in revolutionary Black nationalism through reason. For example, Professor Kang writes that Malcolm “learned that violence, in the profoundest sense, changed things…. Malcolm learned that, on some level, violence was powerful—that it worked.”[281] The implication of such an assertion is that Malcolm’s rejection of nonviolence was more so a result of his own conditioning than of the dire circumstances white supremacy placed Black people in during the early-to-mid twentieth century. Yet ironically, Professor Kang himself notes how unnatural nonviolent resistance seemed to Black Americans when explaining why “[Dr.] King’s arguments for nonviolence had to be resourceful.”[282]
As another example, Professor Kang attributes Malcolm’s rejection of integration to the experiences of white rejection and violence against his family.[283] Notably absent from Professor Kang’s analysis is Malcolm’s own experiences with integration; he lived with a few white foster families and attended a mostly white middle school in Michigan, and he even excelled academically.[284] Yet the constant assaults on his dignity, including the flippant use of the n-word by his foster family members and his eighth-grade teacher discouraging him—and only him—when he disclosed what career goal he had, eventually took its toll.[285] The insults to dignity nonwhites experience in mostly white spaces is well-documented in contemporary times, and a common response of the victim is to avoid white people, not mingle with them.[286]
Later, Professor Kang posits that Malcolm envisioned his criminal behavior as a child, teenager and twenty-year-old as a legitimate rebellion against white supremacy.[287] The logical implication of such a position is that Malcolm espoused violence as a tool for liberation because he was once a criminal, and since “crime did in fact pay,” he thought a violent overthrow of the government would work as well.[288] Professor Kang does not point to a single quote from Malcolm that suggests that Malcolm viewed his crimes as morally acceptable. Moreover, the fact that Malcolm reformed himself while in prison, gave up all his vices, and promoted moral reformation within the NOI demonstrates the exact opposite; and his endorsement of revolutionary Black nationalism as a morally reformed person indicates a lack of any influence of his criminal past.
Further complicating Professor Kang’s analysis is the inconvenient truth that Dr. King, whom Professor Kang documents as having had a privileged and less dramatic life (by Old Jim Crow standards),[289] very much believed in armed self-defense to protect himself and his family despite his public commitment to nonviolence.[290] Former Student Nonviolent Coordinating Committee (SNCC) activist and historian Charles Cobb writes:
[A]fter the January 30, 1956, bombing of his home in Montgomery, [Dr. King] himself—a man of the South, after all—applied at the sheriff’s office for a permit to carry a concealed weapon. He was denied the permit, but this did not stop him from having firearms in his house (although it is not clear whether or not he owned them) …. Glenn Smiley of the Fellowship of Reconciliation, who during the Montgomery bus boycott advised King on techniques of nonviolent protest, described his home as ‘an arsenal.’[291]
So even as Dr. King led peaceful marches and nonviolent demonstrations, he understood the very real physical danger white supremacists could pose and recognized that violence was appropriate under certain circumstances. Moreover, it would be illogical to disassociate his private willingness to engage in armed self-defense from his devotion to nonviolence; given how dangerous activism was in the south, protecting himself was an integral part of his very ability to struggle at all.
In sum, Professor Kang’s attempt to use Malcolm’s troubled upbringing to fully explain his political positions promotes Malcolm-as-bogeyman. It also racially gaslights Malcolm, obscuring the virulence of white racism and pathologizing him as one consumed by anger and irrationally obsessed with violence.
2. Bogeyman By Comparison: Martin Versus Malcolm
On that note, it is worthwhile to point out a conceptual manifestation of Malcolm-as-bogeyman that frames Professor Kang’s article, a framing that reflects an all too common narrative in conventional civil rights discourse: the classic Martin-versus-Malcolm comparison, in which Martin is of course elevated while Malcolm is deprecated.[292] It is not enough to simply recognize both as leaders of the Black freedom struggle who had different approaches to achieving the same goals; Dr. King must be the hero, and Malcolm the villain. Dr. King is cast as the antithesis of the bogeyman; he is the safe Black man, the good Negro who accomplished so much and use constructive means to make American democracy stronger. Like the happy ending to a fairy tale, good prevails over evil; the bogeyman is defeated while the angel triumphs.
Also like a fairy tale, this narrative is quite fictive. For just like Malcolm the villain, Martin the angel is a product of distortions, omissions, and lies.[293] He is frozen in August 1963 and crystallized as a dreamer;[294] gone from the conventional account of his existence are his belief in democratic socialism, including his calls for radical redistribution of America’s wealth; his growing frustrations with national white opposition to racial equality; and his loss of faith in the redemptive capacity of American democracy.[295] Moreover, Dr. King was very much seen as a villain while he was alive despite his commitment to nonviolence. He “enjoyed” a 66% disapproval rating amongst white Americans in the latter years of his life,[296] and as explained above, the FBI under Hoover continuously targeted him for evil.[297] There are even some people, like Dr. King’s family and his former lawyer, who believe that Dr. King’s assassination was the product of a government conspiracy,[298] although this claim is contested.[299] In reality, Malcolm and Martin had significant differences, but they also had a lot more in common than one might think.
Yet the Martin-versus-Malcolm narrative reduces both of these dynamic leaders into flat characters, enabling a partly ahistorical juxtaposition that emphasizes Dr. King as hero and reifies Malcolm-as-bogeyman. This is evidenced in Professor Kang’s piece and in other works of legal scholarship as well. For example, in Leroy Clark’s academic tribute to Dr. King, he sees a need to draw comparisons between Dr. King and Malcolm that replays the Martin-versus-Malcolm narrative and ultimately reiterates Malcolm-as-bogeyman.[300] He employs words like “demagogic,” “threatening” and “ominous” to characterize Malcolm’s philosophy and approach,[301] and he minimizes Malcolm’s logic as “the religion and folklore of the street.”[302]
Yet Professor Clark’s assertions that Malcolm’s call for armed self-defense and rejection of nonviolence occurred “in the context of the legitimacy of a simple, tit for tat self-defense response between two individuals”[303] and that Malcolm analogized to the idea of “dealing with a bully who threatens to beat people up in a bar”[304] ring false, and he does not support such contentions with any speech, interview or writing by Malcolm.[305] Thus, his construction of Malcolm is fictive, and his elevation of Dr. King needlessly comes with an affirmance of Malcolm-as-bogeyman. Even his statement that Dr. King “was addressing the much larger question of how one reverses deeply entrenched mores in a society that had first been committed to slavery and then to racial denigration for over 300 years”[306] is disingenuous; apparently, all Malcolm was doing during that same time was playing gangster. The Martin-versus-Malcolm comparison, evidenced in these writings by Professors Kang and Clark, also promote Malcolm-as-bogeyman. It also evidences racial gaslighting, as it reduces white supremacy to a problem that has been solved through Dr. King’s nonviolence while pathologizing Malcolm as a violent extremist who accomplished nothing positive.
3. Bogeyman By Irrelevance
As noted above, it is not just white people who subscribe to the Black bogeyman myth; many nonwhites do as well. Within the Malcolm-as-bogeyman sphere, one narrative advanced almost exclusively by Black writers is the idea that Malcolm X is no longer relevant and does not deserve the pedestal that racial justice advocates and progressives place him on. This subtly reinforces Malcolm-as-bogeyman because it ignores his usefulness and ultimately strips him down to being a directionless organism consumed by fury. As one example, rightwing writer John McWhorter lists Malcolm as the first of ten people he believes Black history could do without.[307] Predictably, he relies on a depiction of Malcolm as primarily a rage monster whose existence had little to no positive impact in America. McWhorter’s Malcolm X is the Black bogeyman, simplistically consumed by anger and socially useless.
A more powerful argument of Malcolm’s irrelevance and unworthiness comes from Randall Kennedy, who wrote a review on Manning Marable’s book about Malcolm.[308] Professor Kennedy finds the book “deeply flawed,”[309] but he credits Marable’s research and accepts his factual assertions about Malcolm.[310] He delights in Marable’s highlighting of Malcolm’s sins and flaws, both real and imaginary.[311] He finds Marable’s speculative foray into Malcolm’s sex life justifiable: “Sex is important. It illuminates character, affects thought, conditions action.”[312] In another review of the book, he dismisses the stinging criticisms against Marable’s book embodied in A Lie of Reinvention: Correcting Manning Marable’s Malcolm X,[313] calling the volume of essays “uniformly tendentious” and claiming that the criticisms “lack substantiation.”[314] In short, he has little issue with Manning Marable’s factual construction of Malcolm X.
Professor Kennedy’s beef with Marable’s book is that, in his view, Marable nonetheless considers Malcolm relevant and worthy of honor: “[Marable] presents reams of evidence that should demote Malcolm X from the exalted standing he enjoys among many progressives of various stripes. Yet Marable was simply unwilling to go where his own narrative should have taken him.”[315] Professor Kennedy assails Malcolm as “a poor leader” and declares: “Lionized as a brilliant organizer, he created no organization that effectively outlasted him. Lauded as a realist, he repeatedly put his trust in people who betrayed him.”[316] He also casts Malcolm has having been socially useless:
[D]uring black America's most rousing decade--the glorious boycott in Montgomery, the magnificent struggle in Birmingham, the epochal March on Washington, the miraculous resistance in Lowndes County, the breathtaking events in Selma--Malcolm X allowed himself to be largely confined to the sidelines by a domineering, oddball theocrat. While Martin Luther King Jr., Medgar Evers, John Lewis, Fannie Lou Hamer, Diane Nash, Julian Bond, Robert Moses, Stokely Carmichael, and others were risking their lives continually in toe-to-toe encounters with white supremacists, Malcolm X was offering hollow rhetoric.[317]
Professor Kennedy’s account of Elijah Muhammad and the NOI, with which Malcolm was affiliated, is utterly uncharitable; while there is no question that both Mr. Muhammad and the NOI has serious flaws, both also did good for Black people. Psychologically, the NOI gave Black people a sense of purpose in a context that devalued their existence.[318] Their drug treatment program found great success in curing Black people of their addiction to the point where hospitals and medical professionals sought advice from Malcolm as to how they could replicate that success.[319] The NOI’s program of moral reformation was also successful in reducing crime and rehabilitating Black people who had become enmeshed in the criminal judicial system.[320] In May 1963, Congresswoman Edith Green of Oregon invited Malcolm to join her for a meeting about how the NOI dealt with the issue of juvenile delinquency;[321] there would likely be no reason for Rep. Green to ask for such a meeting unless the NOI was doing something positive in that area.
These facts and more render Professor Kennedy’s claim that Malcolm X was “largely confined to the sidelines” during the Black freedom struggle suspect. Malcolm is on the “sidelines” only if one adopts the conventional civil rights narrative, which construes the south as the problematic region and views de jure segregation, racial discrimination in voting, and racial violence as the main targets of the movement.[322] Such a narrative does gross injustice to the Black freedom struggle and seriously underestimates the pervasiveness and breadth of white supremacy. To denigrate Malcolm while subscribing to the conventional narrative is racial gaslighting; once again, the white supremacist state power structure is obscured, and Malcolm is ostracized for not having struggled in the ways that the power structure now chooses to credit.
In reality, the Black freedom struggle was waged in the north as well as the south.[323] Racism in the administration of criminal law, economic inequality, police brutality, and racism in housing were among many issues that racial justice activists grappled with,[324] and the NOI grappled with them as well. They set up Black-owned businesses and became an economic powerhouse.[325] They rallied against police brutality.[326] Led by Malcolm, the NOI sued the NYPD for beating Johnson Hinton and secured the largest jury award against the police at that time.[327] The NOI’s moral reformation program reduced Black contacts with the criminal judicial system. The NOI also organized to promote prisoner justice and prisoners’ rights, upsetting a longstanding legal culture that saw prisoners as “de facto slaves of the state without any constitutional rights.”[328] Scholars both within and without legal academia have acknowledged the NOI’s role in advancing the law on prisoners’ rights. Thus, Malcolm and the NOI were very much involved in the Black freedom struggle, just not in the ways Professor Kennedy deems important.
Professor Kennedy’s dismissal of Malcolm’s intellectualism and his activism as “hollow rhetoric” is similarly misguided. As explained above, Malcolm and the NOI were involved in the Black freedom struggle. With respect to Malcolm, his call for armed self-defense was embraced by groups such as the Louisiana Deacons for Defense, who provided security to civil rights activists during protests, Dr. King included.[329] His stated desire to internationalize the civil rights struggle was not just talk; Malcolm took affirmative steps to make it reality, albeit to mixed results.[330] African heads of state began quoting Malcolm on the floor of the United Nations;[331]they obviously didn’t think his rhetoric was hollow. As detailed above, the federal government actively worked to destroy Malcolm;[332] clearly, it did not dismiss his words and activism as “hollow rhetoric.”
Moreover, Malcolm was an integral part of the political environment that led to the triumphs Professor Kennedy likely venerates, like the Civil Rights Act of 1964. Malcolm’s presence, as well as the urban rebellions Malcolm predicted would come as a result of society’s failure to adequately address the race problem,[333] played crucial roles in the enactment of civil rights legislation.[334] John Henrik Clarke averred in 1969 that Malcolm “was the alternative which the power holders of America had to deal with, if they didn’t deal with the established ‘civil rights leaders.’”[335] Kindaka Sanders concurs, noting that the struggle for civil rights “would not have been as effective if it were not for a concurrent movement offering a less peaceful solution that made its approach seem reasonable by comparison.”[336] In fact, the Kennedys—John F. and Robert—voiced fears that “Negro extremist groups such as the Black Muslims” may grow in popularity if nonviolence failed.[337] It was these fears that spurred President Kennedy to seek civil rights legislation.
Additionally, Malcolm is widely recognized as one of the primary fathers of the Black Power Movement and the increased militancy of the civil rights movement that came with it.[338] Organizations like the Student Nonviolent Coordinating Committee (SNCC) and the Congress of Racial Equality (CORE) were increasingly influenced by Malcolm.[339] The Black Power Movement led to increases in Black-owned businesses,[340] the founding of Black-hosted television programs,[341] the election of Black politicians,[342] and lasting initiatives to hold the police accountable.[343] More militant protests by Black college students led to the creation of academic programs and departments dedicated to Black studies, as well as the hiring of Black professors.[344] This development led to the production of abundant knowledge of the accomplishments of people of African ancestry, upsetting the default academic narratives of white superiority and Black inferiority.
I lay this out to demonstrate the enormity of the activist that Professor Kennedy simply brushes aside as “a poor leader” with “hollow rhetoric.” Ultimately then, he does not see Malcolm as much more than a loud, angry rabblerouser who despised all white people for most of his political life. He was simply the blind, raging servant of “a domineering, oddball theocrat”[345] for many years and then became rudderless in his last year of life. Professor Kennedy’s Malcolm X is, in essence, the Black bogeyman: wroth, demonic to white people, and without sense of positive purpose, all the while belonging to an equally wroth, demonic, purposeless organization. This Malcolm was gifted at “snagg[ing] the attention of curious whites who were simultaneously fascinated and repulsed by his unrelenting anger,”[346] but apparently not much else.
Compounding Professor Kennedy’s racial gaslighting is his complete failure to acknowledge the role that enforcers of American law played both in destabilizing the NOI and in neutralizing Malcolm. There is no recognition of the FBI’s role in infiltrating the NOI, fomenting conflict from within, and engineering the rift between Malcolm and Elijah Muhammad. Nor is there any mention of the pressure that post-NOI Malcolm was under in his last year alive: round-the-clock surveillance by the federal government’s intelligence apparatus; collaboration between the FBI and the NOI in the latter’s pursuit to kill Malcolm; the FBI and NYPD’s deliberately ignoring death threats to Malcolm from the NOI; the CIA’s nearly successful attempt to kill Malcolm in Egypt; the FBI and NYPD falsely claiming, after the NOI firebombed Malcolm’s house, that he bombed his own house.[347] Malcolm knew for a good while that he would be killed; to some extent, he was even resigned to his fate.
Given the opposition Malcolm was facing, it is particularly cruel for Professor Kennedy to castigate Malcolm’s leadership and organizational skills while ignoring the government’s role in his demise. It also bolsters Malcolm-as-bogeyman because it emphasizes a context-less narrative that Malcolm is socially useless: his failings are entirely his own fault and have nothing to do with the federal government’s aggressive campaign against him. The goodness of government is the racial spectacle advanced here, thereby justifying the government’s despisal of Malcolm; since government is good, then its opposition to Malcolm must evidence Malcolm’s villainy. This is classic racial gaslighting.
III. Malcolm’s Mirror: What the Law Community’s Fear of Malcolm X Reveals About Itself
Why, despite it being mythological, does the Black bogeyman trope persist? The answer lies in the purposes it serves. For one thing, the Black bogeyman myth promotes white psychological comfort. As I have argued elsewhere, white comfort is threatened by attacks against white supremacy, and white society’s chiefest responses to such attacks include vilifying and doing violence against the disruptor of its comfort.[348] During the lynching era, for example, whites cited sexual violence against white women as the principal cause of lynchings even though only approximately one-sixth of all Black lynching victims were even accused of such.[349] In actuality, the biggest cause of lynchings, in the words of one southerner, was that “the [B]lack victim has ‘offended that intangible something called ‘racial superiority.’’ That offense, in fact, with no suggestion of sexual impropriety, precipitated scores of brutal lynchings.”[350] In this context, the Black bogeyman trope is used to maintain white dominance and to mask white American discomfort with challenges to that dominance.
Relatedly, the Black bogeyman trope is an escape valve, allowing white Americans to either hide or justify their own sins by marginalizing their Black victims. This relates to what social psychologist Leon Festinger termed “cognitive dissonance,” a term that describes an inconsistency with the self; it relates to behaviors and actions that conflict with one’s sense of self and professed beliefs.[351] Dr. Joy DeGruy argues that the racialized marginalization of Black people during chattel slavery and beyond was the way white Americans removed dissonance; they justified their sins against Black Americans by dehumanizing them.[352] Regarding the Black bogeyman myth, horrific acts against Black people—convict leasing, lynchings, mass incarceration, police shootings—are justified because the Black victims are crazed, violent, rageful, etc. Put another way, the Black person leased as a convict, lynched, incarcerated, or abused by the police suffered because that person was—is—a bogeyman.
Yet the Black bogeyman myth goes deeper, for the very existence of the myth is reflective of American society at large. The Black bogeyman myth is a testament to the ugliness of American society as well as the society’s refusal to face up to that ugliness. To acknowledge the ugliness would be too discomforting and embarrassing; to rectify the ugliness would be to surrender power, and white society thus far has shown no interest in doing that. Thus, American society would rather hide the ugliness as best as it can, emphasize its beauty, and then fiercely oppose anyone—and anything—that lays its ugliness bare. Put another way, American society endorses racial gaslighting. Thus, white society will never admit that the Black bogeyman is mythical; its continued belief in the bogeyman’s existence is necessary to preserve both its power over nonwhites and its psychological comfort.
Analogically, the American law community’s perception of Malcolm-as-bogeyman serves similar purposes. Malcolm’s blistering indictment of white supremacy and the American establishment threatened the comfort of the American law community. Moreover, by questioning the promise and ideals of American law, Malcolm’s assertions could also be said to have produced cognitive dissonance within the law community. The response to this discomfort and dissonance is analogically the same: 1) heavy marginalization of the disruptor,[353] and 2) violence against the disruptor.[354] Through these two courses of action, the American law community has acted to preserve white dominance and by extension white comfort. They have also removed dissonance by transmogrifying Malcolm into a bogeyman to hide and justify its sins against both him and Black America.
Yet one must wonder why the American law community has continued to perceive Malcolm as a bogeyman. He’s been dead for over sixty years at this point; had he been alive, he would have celebrated his 100th birthday on May 19, 2025. The answer lies in Malcolm’s continued relevance and in the admiration that Black people have had for him since his assassination. Malcolm may have died physically, but his words are immortal and still applicable to the present. He has remained a powerful symbol of resistance to white supremacy and the American power structure. Many people, especially Black people, consider him a hero. Case in point: after the publication of Professor Marable’s mean-spirited biography of Malcolm X in April 2011,[355] several African American scholars, including many who had written earlier works on Malcolm, came together and issued forceful responses to the book.[356]
Most importantly, his critique of American law as a vehicle of white supremacy has not only endured but has been expanded upon in the form of critical race theory. I agree with Gary Peller’s claim that critical race theory is Malcolm’s legacy reflected in legal academia; there are many parallels between Malcolm’s assertions about American law and early critical race theorists’ critiques of American law.[357] There are also parallels in the response: the American law community successfully made critical race theory a doctrinal bogeyman.[358] Through shrewd propaganda, it has become synonymous with destructive racial indoctrination that demands allegiance to nonwhite racial hierarchy while psychologically traumatizing white students. It has also become a catchall phrase for any attempt by educators to teach about America’s racial past.[359] President Trump issued executive orders banning this reinvented “critical race theory,”[360] and twenty states have now banned it as well.[361] Politicians have won and lost elections based on their support for or opposition to “critical race theory.”[362] And even in legal academia, a narrative of critical-race-theory-as-bogeyman exists.
Critical race theory as a doctrinal bogeyman is the law community’s continuation of Malcolm-as-bogeyman; it is the villainization of ideas that came from him. It is clearly viewed as dangerous and scary, evidenced by the hordes of white parents who have descended on school board meetings demanding that “critical race theory” be banned.[363] This dominant critical race theory narrative is fictive; it was never taught in K-12 schools,[364] and it opposes racial hierarchy. Finally, while the opposition to critical race theory has been predominantly white, rightwing media outlets have always been keen on highlighting and giving platforms to the few Black people who voice their objection to the teaching of “critical race theory” in the schools in the areas where they live. The current furor over critical race theory is indicative of why, decades after his assassination, the American law community still fears Malcolm X.
The persistence of Malcolm-as-bogeyman in American law is therefore reflective of the law community: it is a testament to the ugliness of American law. It is a testament to the law’s deep animosity for the Black poor and working class, the most oppressed in American society; Malcolm was their voice and expressed their perception of the law.[365] It is a testament to the law community’s continued adherence to a selective theory of justice, one which favors the dominant racial group and disfavors the oppressed. It is a testament to the American law community’s ongoing unresponsiveness to a major historical dilemma facing marginalized groups: how they should respond to law that brutalizes them and simultaneously demands their submissiveness to it. For to demand obedience to the law from the groups most injured and despised by it is the height of tone-deafness; and as Dr. King warned so many years ago, when the law community fails to hear the voices of the marginalized, the oppressed tend to respond in destructive ways that evince disregard of the law.[366] Malcolm-as-bogeyman is a testament to law as a tool for racialized subjugation.
Malcolm-as-bogeyman is also a testament to the American law community’s refusal to face up to the current ugliness of American law. To admit that Malcolm is no bogeyman is to acknowledge that American law is in fact a vehicle of white supremacy, and such an acknowledgement in the present environment would call into serious question the legitimacy of the law as well as the law community’s continued faith in it. It would show the promise of American democracy to be illusory. Such an admission might even add force to Professor Khan’s suggestion that freedom “by any means necessary” is defensible when legal means “fail to remove grave injustice from the society.”[367] Moreover, the law community still has no interest whatsoever in rectifying the ugliness of American law; that ugliness is essential to the maintenance of white dominance.
Thus, the American law community hides the ugliness as best as it can, emphasizes its beauty, and fiercely opposes anyone and anything that lays its ugliness bare. Consequently, it will continue to perceive Malcolm as a bogeyman. It will continue to ignore the whole man and reduce him to an angry, violent, white-people-hating, socially useless demagogue. It will continue to make the Martin-versus-Malcolm comparisons that angelize Martin and devilize Malcolm. It will continue to dismiss his relevance as he actually existed and reinvent him into a figure accepting of American ideals. In sum, it will continue to racially gaslight Malcolm, because doing so preserves white comfort and maintains white dominance.
Conclusion
In September 2022, Malcolm X became the first Black person to be selected for induction into the Nebraska Hall of Fame.[368] This was the culmination of an 18-year battle, as he had been passed over at least twice before.[369] Additionally, in March 2024, the Nebraska legislature voted to annually designate May 19—Malcolm’s birthday—as Malcolm X Day.[370] This vote was the product of an amendment on another bill.[371] The Nebraska legislature stopped short of declaring his birthday a state holiday; the cost of doing so was allegedly the main reason why the bill seeking to make it a holiday failed.[372] The legislator who introduced both the bill and the successful amendment was Omaha Senator Terrell McKinney, one of only two Black state legislators in Nebraska.[373] During a committee hearing on the bill in 2023, he remarked: “Malcolm X is one of the most fundamentally misunderstood people in American history…. And perhaps the stigma around him would be extinguished if his achievements and contributions were recognized.”[374]
Misunderstood indeed. Malcolm-as-bogeyman misunderstands who he was and what he advocated for. I contend that within the American law community, this misunderstanding has always been both deliberate to some degree and hypocritical, especially while he was alive. The Malcolm-as-bogeyman narrative falls apart when comparing Malcolm’s behavior to the behavior of American law’s agents and racist white civilians. While Malcolm lived a law-abiding life from his NOI days onward, it is well documented how the FBI violated the law not only in their dealings with Malcolm but in their surveillance activities against numerous persons involved in the Black freedom struggle. It is also well known how violent white supremacists were during the 1960s (and throughout American history), but as Malcolm noted, they were “never associated or identified or made synonymous with the term ‘violence.’”[375]
Chiding Malcolm over his rhetoric regarding revolution would also be hypocritical. After all, the very founding of this nation was indisputably a product of revolutionary violence. In numerous speeches and interviews, Malcolm drew from America’s revolutionary history to justify his belief in radical politics and armed self-defense. The American law community does not frown upon the American Revolution; it honors the revolution. Thus, the problem lies not in the concept of revolution but in who is invoking it, for what purpose, and in the service or disservice of whose interests. For those in the American law community too uncomfortable to admit this, behold the solution: dismiss Malcolm as a bogeyman.
[1] XX, Malcolm X as Legal Scholar (2026) (unpublished).
[2] In the past five years alone, three books about Malcolm have been published. See Mark Whitaker, The Afterlife of Malcolm X (2025); Ibram X. Kendi, Malcolm Lives! (2025); Les Payne, The Dead Are Arising (2020). I have no opinion on any of these works, as I have not read them.
[3]See Brandon Terry, Malcolm and the Rhetoric of Black Populism, Joint Center for History and Economics Online Seminar (2023), https://histecon.fas.harvard.edu/seminars/terry.html.
[4]Id; see also, e.g., Bernard E. Harcourt, A Response to Brandon Terry, in Lieu of an Epilogue to Revolution, 10/13, Columbia University, Welcome to Revolution 13/13 (Apr. 23, 2022), https://blogs.law.columbia.edu/revolution1313/bernard-e-harcourt-a-response-to-brandon-terry-in-lieu-of-an-epilogue-to-revolution-10-13/; Sefi Josef Kuperman, Malcolm X and Black Nationality—from Separation to Human Rights, 19 The Pluralist 23 (2024).
[5]See, e.g., Ali Khan, Lessons from Malcolm X: Freedom by Any Means Necessary, 38 How. L.J. 79 (1994) (constructing a legally defensible theory of resistance “by any means necessary”); Charles Lewis Nier III, Guilty as Charged: Malcolm X and His Vision for Racial Justice for African Americans Through Utilization of the United Nations International Human Rights Provisions and Institutions, 16 Penn St. Int’l L. Rev. 149 (1997) (examining Malcolm X’s vision, work, and impact in the international law arena through his Pan African crusade for international human rights).
[6]See Kempis Songster, Rachel Lopez & Gerald Torres, Participatory Law Scholarship as Demosprudence, 110 Va. L. Rev. Online 298, 300 (2025).
[7]Id.
[8]Id.
[9]See Erwin Chemerinsky, We’re living under a flawed Constitution. Let’s start fresh and rewrite it, L.A. Times (Aug. 23, 2024, 6:00 AM ET.), https://www.latimes.com/opinion/story/2024-08-23/constitution-undemocratic-amendments-rewrite.
[10]See Chemerinsky, supra note __; Chris Edelson, The Case for Re-Writing the Constitution, Progressive Magazine (Oct. 18, 2023, 3:26 PM), https://progressive.org/case-for-re-writing-constitution-edelson-231018/.
[11]See Jeff Brady & Joe Hernandez, 4 things to know about the immigration raid protests that roiled LA this weekend, NPR (Jun. 9, 2025, 5:00 AM), https://www.npr.org/2025/06/09/nx-s1-5427215/what-to-know-los-angeles-protests-ice-trump#:~:text=In%20downtown%20Los%20Angeles%20Sunday,the%20transport%20of%20detained%20immigrants.
[12]See Samuel Moyn, Reconstructing Critical Legal Studies, 134 Yale L.J. 77, 79 (2024).
[13]See Angelique M. Davis & Rose Ernst, Racial Gaslighting, 7 Pol., Grps., & Identities 761, 763 (2019).
[14]See “Recognizing and Responding to Racial Gaslighting,” University of Michigan Ford School of Public Policy, https://fordschool.umich.edu/event/2024/recognizing-and-responding-racial-gaslighting.
[15]See, e.g., Angela Onwuachi-Willig, Roberts’s Revisions: A Narratological Reading of the Affirmative Action Cases, 137 Harv. L. Rev. 192, 215 fn. 124 (2023).
[16]See The HLS Conference Organizers, Critical Race Theory: Inside and Beyond the Ivory Tower, 69 UCLA L. Rev. Discourse 118, 126 fn. 25 (2022). The authors apply it to anti-CRT bans. Kyle Velte describes racial gaslighting, but doesn’t apply it to anything. See Kyle C. Velte, The Supreme Court’s Gaslight Docket, 96 Temp. L. Rev. 391, 404 (2024).
[17]See Malcolm X & Alex Haley, The Autobiography of Malcolm X 24-25, 161-63, 165-66 (1965).
[18]Id. at 173-78, 189-200; William Strickland, Malcolm X Make It Plain 43 (1994).
[19]See Malcolm X & Haley, supra note __, at 13-17; 20-21, 22, 24, 79-145.
[20]See generally John H. Bracey Jr., August Meier & Elliott Rudwick, Black Nationalism in America (1970).
[21]See, e.g., Malcolm X, “Speech to Peace Corps Workers” (Dec. 12, 1964).
[22]See Jack Barnes, Malcolm X, Black Liberation, and the Road to Workers Power 47-48 (2009).
[23]See Malcolm X & Haley, supra note __, at 409-11; Christopher Tinson, Manning Marable and the Triumph of American Liberalism in Malcolm X: A Life of Reinvention, in A Lie of Reinvention: Correction Manning Marable’s Malcolm X 277 (Jared A. Ball & Todd Steven Burroughs 2012).
[24] In virtually every public post-split speech by Malcolm X, including the very last speech he gave at the Cornhill Methodist Church in Rochester, Malcolm advocated for the right of Black people to defend themselves “by any means necessary.” See, e.g., Bruce Perry, Malcolm X: The Last Speeches 175 (1989).
[25] Khan, supra note __, at 85.
[26]Id. at 83.
[27] For example, in response to a reporter’s question as to whether he thinks Black people should vote, Malcolm said: “Negroes should do whatever is necessary to bring about a complete solution to their problems. And when I say whatever is necessary, whatever is necessary.” See “Malcolm X on Voting,” YouTube, at 0:44-57 (Oct. 19, 2016 (from 1964)), https://www.youtube.com/watch?v=WZwJyAhLbHQ.
[28]Id. at 116.
[29]See, e.g., Malcolm X, “The Ballot or the Bullet” (Apr. 3, 1964). “It is constitutionally legal to own a shotgun or a rifle. This doesn't mean you're going to get a rifle and form battalions and go out looking for white folks, although you'd be within your rights -- I mean, you'd be justified; but that would be illegal, and we don't do anything illegal.”
[30]See, e.g., “Malcolm X in Los Angeles May 5, 1962, Who Taught you to Hate Yourself? full speech,” supra note __, at 23:47-24:34.
[31]See, e.g., Perry, supra note __, at 159-65; Archie Epps, The Speeches of Malcolm X at Harvard 165-67 (1991).
[32]See, e.g., Malcolm X & Haley, supra note __, at 408-09; Perry, supra note __, at 61, 63-64, 71, 178-79; Epps, supra note __, at 127-29, 134, 137-38, 159.
[33]See Karl Evanzz, The Judas Factor: The Plot to Kill Malcolm X 249-57 (1992); Baba Zak A. Kondo, Conspiracys: Unraveling the Assassination of Malcolm X 44-45 (1993).
[34] Sometimes, Malcolm would use the term “power structure”; other times, he named specific politicians like John F. Kennedy and Lyndon B. Johnson; other times, he mentioned certain agencies by name, such as the State Department or the FBI.
[35]See Kondo, supra note __, at 57-59; Evanzz, supra note __, at 257-73.
[36]See “Malcolm X in Los Angeles May 5, 1962, Who taught you to hate yourself? full speech,” supra note __, at 22:20-23:28.
[37] M.S. Handler, Introduction, in Malcolm X & Haley, supra note __, at xxiii-xxiv.
[38] Kondo, supra note __, at 57.
[39] Evanzz, supra note __, at 278-79.
[40] Evanzz, supra note __, at 279.
[41]See Perry, supra note __, at 122-24, 135-36; Evanzz, supra note __, at 205-06.
[42]See note __, supra and accompanying text.
[43] Strickland, supra note __, at 159.
[44] Elombe Brath, I Remember Malcolm, in The Harlem Cultural/Political Movements 1960-1970: From Malcolm X to “Black is Beautiful” 17 (Klytus Smith & Abiola Sinclair eds. 1995).
[45]See, e.g., Malcolm X & Haley, supra note __, at 246. Malcolm noted his reputation within the NOI of being “anti-woman.” See id. at 322. For a feminist critique of Malcolm’s gender politics, see Farah Jasmine Griffin, “Ironies of the Saint” Malcolm X, Black Women, and the Price of Protection, in Sisters in the Struggle: African American Women in the Civil Rights-Black Power Movement 214-229 (Bettye Collier-Thomas and V.P. Franklin 2001).
[46]See Barnes, supra note __, at 88-89.
[47] Rosemari Mealy, An Incomprehensible Omission: Women and El-Hajj-Malik El-Shabazz’s Ideological Development in Malcolm X: A Life of Reinvention—A Brief Criticism, in A Lie of Reinvention: Correction Manning Marable’s Malcolm X 119-22 (Jared A. Ball & Todd Steven Burroughs 2012).
[48]See generally Jeanne Theoharis, A More Beautiful and Terrible History (2018).
[49] In fact, contemporary historical accounts of the struggle for Black liberation mainly credit the federal government and hides or glosses over the role of Black activism. It obscures the role of government at both the state and federal levels in resisting the struggle for racial justice. The FBI’s destructive actions during the 1950s and 1960s is completely missing from historical accounts. See James Loewen, Lies My Teacher Told Me: Everything Your American History Textbook Got Wrong, Second Edition 235-41 (2007).
[50] Mary C. Schmitt, “By Any Means Necessary” A Neoliberal Sound Byte? The Memory of Malcolm X in the 1990s CBS Documentary Malcolm X: The Real Story, 9 Black Camera 10, 13 (2018).
[51]Id.
[52] Manning Marable, Malcolm X: A Life of Reinvention (2011).
[53]See Reid-Merritt, supra note __, at 29-30;Franklin, supra note __, at 66-69; Alkalimat, supra note __, at 40-42.
[54]See Karl Evanzz, Paper Tiger: Manning Marable’s Poison Pen, in A Lie of Reinvention: Correction Manning Marable’s Malcolm X 210 (Jared A. Ball & Todd Steven Burroughs 2012); Raymond A. Bush, Speculative Nonfiction: Manning Marable’s Malcolm X, in A Lie of Reinvention: Correction Manning Marable’s Malcolm X 111-12, 113 (Jared A. Ball & Todd Steven Burroughs 2012).
[55] Karl Evanzz, Paper Tiger: Manning Marable’s Poison Pen, in A Lie of Reinvention: Correction Manning Marable’s Malcolm X 207, 212 (Jared A. Ball & Todd Steven Burroughs 2012); Zak Kondo, Jared Ball Interview with Zak Kondo, April 11, 2011, in A Lie of Reinvention: Correction Manning Marable’s Malcolm X 230-31 (Jared A. Ball & Todd Steven Burroughs 2012).
[56]See Marable, supra note __, at 484-86; cf. Jared A. Ball, An Introduction to a Lie, in A Lie of Reinvention: Correction Manning Marable’s Malcolm X 14-17 (Jared A. Ball & Todd Steven Burroughs 2012); Akuno, supra note __, at 48-49; Puryear, supra note __, at 192-95.
[57]See Marable, supra note __, at 133, 303-04, 484; cf. Franklin, supra note __, at 67; Puryear, supra note __, at 192-95.
[58]See Marable, supra note __, at 391.
[59]See Stephen Tuck, The Night Malcolm X Spoke at the Oxford Union 3 (2014).
[60]See Malcolm X – Topic, Speech at Oxford University, at 28:41-29:55 (YouTube, Feb. 21, 2015 (from Dec. 3, 1964)), https://www.youtube.com/watch?v=1h0MFjVGbo4.
[61]See Glen Ford, Dragging Malcolm into Obamaland, in By Any Means Necessary: Malcolm X: Real, Not Reinvented 136 (2012).
[62]See Cheryl T. Page, Stop the Steal: The History of Voter Suppression in America, and Who is Really Stealing Votes?, 17 Intercultural Hum. Rts. L. Rev. 153, 170-71 (2022).
[63]See, e.g., Peniel C. Joseph, Dark Days, Bright Nights: From Black Power to Barack Obama 1 (2010); Ta-Nehisi Coates, The Legacy of Malcolm X, from By Any Means Necessary: Malcolm X: Real, Not Reinvented 90, 94-96.
[64]See Franklin, supra note __, at 76; William A. Sales Jr., Jared Ball Interview with William Sales, June 3, 2011, in A Lie of Reinvention: Correction Manning Marable’s Malcolm X 220-22 (Jared A. Ball & Todd Steven Burroughs 2012); Alkalimat, supra note __, at 48.
[65]See, e.g., Malcolm X, Message to the Grassroots Movement at 21:17-27:52 (Nov. 10, 1963); See Black See Power, Malcolm X in Selma, Alabama February 4, 1965, at 0:59-3:31 (YouTube, Jul. 8, 2014) https://www.youtube.com/watch?v=u2nhfv8h180.
[66]See, e.g., Malcolm X, Message to the Grassroots Movement at 27:25-27:52; 31:17-32:08. “The slavemaster took Tom and dressed him well and fed him well and even gave him a little education, gave him a long coat and a top hat and made all the other slaves look up to him. Then he used Tom to control them. The same strategy that was used in those days is used today by the same white man. He takes a Negro, a so-called Negro, and makes him prominent, builds him up, publicizes him, makes him a celebrity, and then he becomes a spokesman for Negroes and a Negro leader.”
[67]See, e.g., Keeanga-Yamahtta Taylor, Barack Obama’s Original Sin: America’s post-racial illusion, Guardian (Jan. 13, 2017, 4:00 AM), https://www.theguardian.com/us-news/2017/jan/13/barack-obama-legacy-racism-criminal-justice-system; Ta-Nehisi Coates, How the Obama Administration Talks to Black America, Atlantic (May 20, 2013), https://www.theatlantic.com/politics/archive/2013/05/how-the-obama-administration-talks-to-black-america/276015/; Frank James, Obama’s ‘Stop Complaining’ Order To Black Caucus Causes Stir, NPR (Sep. 26, 2011, 11:55 AM), https://www.npr.org/sections/itsallpolitics/2011/09/26/140802831/obama-stop-complaining-order-to-cbc-fires-up-some-folks.
[68] Stephen F. Smith, Clarence X?: The Black Nationalist Behind Justice Thomas’s Constitutionalism, 4 N.Y.U. J. L. & Liberty 583, 586, 589-90, 624-25 (2009).
[69] Apparently, this kind of bastardization of Black nationalism has quite a few adherents. See, e.g., Mark Tushnet, Clarence Thomas’s Black Nationalism, 47 How. L.J. 323 (2004); Corey Robin, The Enigma of Clarence Thomas (2019). For a critical review of Robin’s claims regarding Clarence Thomas being a Black nationalist, see Shaun Ossei-Owusu, Racial Revisionism, 119 Mich. L. Rev. 1165 (2021).
[70]Id. at 587.
[71]Id.
[72]See Smith, supra note __, at 615.
[73]Id.
[74]See Joe Boulter, Children and Slaves in the West”: Imagining Fraternity Among Outlaws in the Secret Integration, 24 Okla. City U. L. Rev. 519, 526 (1999); see also Peller, supra note __, at 782-83.
[75] For a detailed history on the racism behind the school voucher and charter school movements, see generally Joe Friendly, Glen Ford: Corporate Assault on PublicEducation, (YouTube, May 9, 2012) https://www.youtube.com/watch?v=JdPACwRgw04.
[76]See Smith, supra note __, at 588-89. Completely vanished from Professor Smith’s post-split Malcolm X is any critique of white racism as well as his unwavering commitment in the right of Black people to defend themselves “by any means necessary.” Regarding the point on personal responsibility, see, e.g., Jenee Desmond-Harris, Study: We Love a Good Personal Responsibility Message – When the Audience is Black, Vox (Jul. 14, 2015, 12:00 PM), https://www.vox.com/2015/7/14/8949481/race-systemic-blame-black.
[77] Justice Thomas’ biggest denunciation of anti-Black racial discrimination came in Virginia v. Black, 538 U.S. 343 (2003), when he dissented from the Court’s opinion deeming a presumption in a statute prohibiting cross burning unconstitutional. His dissent touches on the history of Klan violence, but nothing about systemic or structural racism.
[78]See, e.g., Bret Murphy & Alex Mierjeski, Clarence Thomas’ 38 Vacations: The Other Billionaires Who Have Treated the Supreme Court Justice to Luxury Travel, ProPublica (Aug. 10, 2023, 5:45 AM), https://www.propublica.org/article/clarence-thomas-other-billionaires-sokol-huizenga-novelly-supreme-court.
[79]See Angelique M. Davis & Rose Ernst, Racial Gaslighting, 7 Pol., Grps., & Identities 761, 763 (2019).
[80]Id.
[81]Id. at 765.
[82]Id. at 766.
[83]Id.
[84]Id.
[85]See Nick J. Sciullo, Richard Sherman, Rhetoric, and Racial Animus in the Rebirth of the Bogeyman Myth, 37 Hastings Comm. & Ent L.J. 201, 221 (2015) (“The bogeyman myth has existed for centuries in many countries. It is a relatively simple story about an otherworldly creature that kidnaps and eats children. This figure is often represented as black or dark in coloration.”).
[86]See Carol Anderson, Ph.D., White Rage: The Unspoken Truth of Our Racial Divide 14, 20-21 (2016); Leon F. Litwack, Trouble in Mind: Black Southerners in the Age of Jim Crow 248 (1998).
[87]See Shawn E. Fields, Weaponized Racial Fear, 93 Tul. L. Rev. 931, 941-42 (2019).
[88]Id. at 942.
[89]Id. at 945.
[90]Id. at 945-46.
[91]Id. at 946.
[92]See Fields, supra note __, at 943-49; see also Katheryn K. Russell, The Racial Hoax as Crime: The Law as Affirmation, 71 Ind. L.J. 593, 596-601 (1996).
[93]Id. at 942.
[94]See XX, Criminal Procedure Redemption, 61 Harv. C.R.-C.L. L. Rev. __ (forthcoming 2026).
[95]See Idus A. Newby, Jim Crow’s Defense: Anti-Negro Thought in America, 1900-1930 138 (1965).
[96]See Ibram Kendi, Stamped From The Beginning: The Definitive History of Racist Ideas in America 282-83 (2016).
[97]See Laura T. Fishman, The Black Bogeyman and White Self-Righteousness, in Images of Color, Images of Crime 177-81 (Coramae Richey Mann & Marjorie S. Zatz eds., 2d ed. 2002).
[98]See James Forman, Locking Up Our Own: Crime and Punishment in Black America (2017).
[99] This is not to say that other nonwhite groups are not victims of racial tropes relating to violence. However, the Black bogeyman trope is specific to Black people.
[100]See Sciullo, supra note __, at 221.
[101] Kondo, supra note __, at 42, 119.
[102] Evanzz, supra note __, at 3-4, 5, 9-10, 12-13.
[103]Id. at 25-26.
[104]Id. at 32-33.
[105]Id. at 33; see “Smith Act,” Britannica, https://www.britannica.com/event/Smith-Act.
[106] Evanzz, supra note __, at 33.
[107] For information on the NYPD’s assault on Hinton, see Strickland, supra note __, at 77-78.
[108]Id.
[109] Evanzz, supra note __, at 148-49.
[110]See Boynton v. Virginia, 364 U.S. 454 (1960); Morgan v. Virginia, 328 U.S. 373 (1946).
[111] Freedom Riders [Stanley Nelson], 1:03:27-55 (2010).
[112]Id. at 1:32:44-33:10.
[113] Evanzz, supra note __, at 128-29.
[114]Id.
[115]Id.
[116]See Jared Goldstein, The Klan’s Constitution, 9 Ala. C.R. & C.L. L. Rev. 285, 345-46 (2018).
[117] Congress eventually investigated the Klan in response to white activist Viola Liuzzo’s murder in Alabama in March 1965, a month after Malcolm’s assassination.
[118] Evanzz, supra note 214-215.
[119]Id.
[120]Id.
[121]Id. at 240, 254-55; Kondo, supra note __, at 42-43.
[122] Evanzz, supra note __, at 258-59; Kondo, supra note __, at 50-51.
[123] Evanzz, supra note __, at 254; Kondo, supra note __, at 49.
[124]See Malcolm X, “Speech to the Second African Summit Conference” (Aug. 21, 1964).
[125] Evanzz, supra note __, at 253-54.
[126] Kondo, supra note __, at 61.
[127]Id. at 61-62.
[128]Id. at 62.
[129]Id. at 33-34; Strickland, supra note __, at 157; Loewen, supra note __, at 236-39.
[130]Id.; Evanzz, supra note __, at 171-72; see Andrew Prokop, Read the letter the FBI sent MLK to try and convince him to kill himself, Vox (Jan. 15, 2018, 9:22 AM), https://www.vox.com/xpress/2014/11/12/7204453/martin-luther-king-fbi-letter.
[131]See John Herbers, Dr, King Rebuts Hoover Charges, N.Y. Times 1 (Nov. 20, 1964), https://www.nytimes.com/1964/11/20/archives/dr-king-rebuts-hoover-charges-offers-to-discuss-criticisms-he-is.html.
[132] Kondo, supra note __, at 151.
[133]Id. at 23. The FBI infiltrated and disrupted Klan activities in the 1960s, but not because of the violence the Klan inflicted against Black people.
[134]Id. at 43-44, 68-69, 85.
[135]Id.
[136]Id. at 75-76.
[137] Evanzz, supra note __, at 255-56; Koerner, supra note __, at 62-65; cf. Kondo, supra note __, at 46.
[138] Evanzz, supra note __, at 256; Koerner, supra note __, at 62-65.
[139] Evanzz, supra note __ at 278; Kondo, supra note __, at 62-65; Koerner, supra note __, at 66-67.
[140] Evanzz, supra note __, at 197-98, 200-01, 283-84.
[141]Id. at 286-88; Kondo, supra note __, at 145-47.
[142] Kondo, supra note __, at 163, 165-66; “Interview with Gene Roberts” (Jun. 30, 1992), http://repository.wustl.edu/concern/texts/rv042x751.
[143]See generally Reggie Wood & Lizzette Salado, The Ray Wood Story: Confessions of a Black NYPD Cop in the Assassination of Malcolm X (2021); Amy Goodman & Nermeen Shaikh, Malcolm X Assassination: Former Security Guards Reveal New Details Pointing to FBI, NYPD Conspiracy, Democracy Now! (Feb. 22, 2024), https://www.democracynow.org/2024/2/22/malcolm_x_assassination_security_guards.
[144] Kondo, supra note __, at 80-81.
[145]Id.
[146]Id. at 87, 166; Goodman & Shaikh, supra note __.
[147]Id. at 82.
[148]Id.
[149]Id.
[150]Id. at 163.
[151]Id. at 164-66.
[152]Id. at 164.
[153]Id. at 89-91.
[154]Id. at 97.
[155]Id.
[156]Id. at 89, 112.
[157]Id. at 112.
[158]Id. at 99-110; Evanzz, supra note __, at 298.
[159] Kondo, supra not __, at 107-10.
[160]Id. at 117.
[161]Id. at 118.
[162]See Southall & Bromwich, supra note __.
[163]Id.
[164]Id.
[165]Id; see Kondo, supra note __, at 168-69, 181.
[166] Ashley Southall, Man Exonerated in Malcolm X’s Murder Sues U.S. Over His Conviction, N.Y. Times (Nov. 16, 2023), https://www.nytimes.com/2023/11/16/nyregion/malcolm-x-muhammad-aziz-exonerated-lawsuit.html#:~:text=Aziz%2C%20who%20spent%20more%20than,Mr.
[167]See Johnson v. United States, 759 F.Supp.3d 425 (S.D.N.Y. 2024); Johnson v. United States, 2024 WL 3362682 (S.D.N.Y. 2024).
[168] 246 F.3d 536 (6th Cir. 2001).
[169]Id. at 538.
[170]Id.
[171]Id. at 541.
[172]Id.
[173] 217 Fed.Appx. 518 (6th Cir. 2007).
[174]Id. at 524.
[175] 538 F.3d 554 (6th Cir. 2008).
[176]Id. at 574-75.
[177]Id. at 574.
[178] 625 F.3d 324 (6th Cir. 2010).
[179]Id. at 337.
[180] 674 F.Supp.2d 725 (D.S.C. 2009).
[181]See id. at 738-39.
[182]Id.
[183] 371 F.Supp.2d 814 (S.D.W.V. 2005).
[184]Id. at 819, 829.
[185] 2005 WL 8158692 (N.D. Ala. 2005).
[186]Id. at 9.
[187] 71 Fed.Appx. 32 (10th Cir. 2003).
[188]Id. at 35.
[189]Id. at 33.
[190]Id.
[191] 94 F.3d 396 (7th Cir. 1996).
[192]Id. at 396.
[193]Id. at 397.
[194]Id.
[195]Id.
[196] 25 F.3d 1051, 1994 WL 228244 (6th Cir.1994).
[197]Id. at 2.
[198]Id. The prosecutor nonetheless volunteered her reasons for striking the juror.
[199]Id.
[200]Id. at 2-3.
[201] 1998 WL 480256 (N.D. CA 1998) (hereinafter “Rardin I”).
[202]Id. at 1.
[203]Id. at 2.
[204]Id. at 1.
[205]Id. at 3.
[206] Ricardo v. Rardin, 189 F.3d 474, 2 (9th Cir. 1999).
[207]Id.
[208]SeeRardin I, supra note __, at 3; Appellant’s Opening Brief, No. 98-17091, 1999 WL 33652958, 6 (Mar. 8, 1999).
[209] The seven courts included the district and appellate courts in Hinton, the district and appellate courts in Peraza, and the two state courts and the federal district court in Rardin.
[210]See Kendi, supra note __, at 117-18.
[211]See Hinton, supra note __, at 396-97 (juror allegedly had bad body language); Peraza, supra note __, at 2 (juror was young unmarried male and was “unresponsive,” looking at his feet the entire while); Rardin I, supra note __, at 2 (juror “seemed more interested in reading than she did in listening to the court”).
[212] 566 N.W.2d 229 (Mich. 1997).
[213]Id. at 243.
[214]Id.
[215] Nevers v. Killinger, 990 F.Supp. 844, 874 (E.D. Mich. 1997) (hereinafter “Killinger I”), aff’d by Nevers v. Killinger, 169 F.3d 352, 354 (6th Cir. 1999).
[216]Budzyn, 456 Mich. at 92-97; Killinger I, 990 F.Supp. at 870-71.
[217]Budzyn, 456 Mich. at 92-97.
[218]Id.
[219]Killinger I, 990 F.Supp. at 870.
[220] 546 N.W.2d 731 (Minn. 1996).
[221]Id. at 733-37.
[222]Id. at 735.
[223]Id. at 736.
[224]Id. at 737, 738.
[225]Id. at 737.
[226]Id. at 736, fn. 2.
[227]Id. at 737.
[228]Id. at 736, fn. 2, 737.
[229]Id. at 737.
[230] Id. at 737-38.
[231]Id. at 737.
[232]Budzyn, 456 Mich. at 93-94.
[233]Killinger I, 990 F.Supp. at 871.
[234] Marino v. Vasquez, 812 F.2d 499, 506 (9th Cir. 1987) (citing to United States v. Bagnariol, 665 F.2d 877, 885, 886 (9th Cir. 1981)). Bagnariol was one of the cases the Michigan Supreme Court cited for the rule. SeeBudzyn, 456 Mich. at 89-90.
[235] Abatino v. United States, 750 F.2d 1442, 1446 (9th Cir. 1985) (citing to Bagnariol, 665 F.2d at 887).
[236]Bagnariol, 665 F.2d at 885.
[237]Id.
[238]Id.
[239]See Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986).
[240] The five-factor test is used to “adjudicat[e] challenges based on a juror’s injection into deliberations of extrinsic material.” See id. (Emphasis supplied)
[241] United States v. Littlefield, 752 F.2d 1429, 1432 (9th Cir. 1985).
[242]Id.
[243]Id.
[244] Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir. 1980).
[245]Id. at 855.
[246] The court describes the showing as having occurred “during a period late in trial….” Budzyn, 456 Mich. at 93. However, the showing happened on August 5 and 6, 1993, and jury deliberations did not begin until August 13, 1993. Id. at 90.
[247]Id. at 96.
[248]Killinger I, 990 F.Supp. at 870.
[249]Id. at 865.
[250]Budzyn, 456 Mich. at 96.
[251]Id.
[252]Id. at 96-97.
[253]Killinger I, 990 F.Supp. at 870-71.
[254]Id. at 871.
[255]See Defendant-Appellant’s Brief on Appeal, No. 102654, 1996 WL 33677097 at 3 (Jul. 2, 1996); Defendant-Appellant’s Brief on Appeal, No. 102655, 1996 WL 33655942 at 35 (Jul. 11, 1996).
[256] Sheila A. Bedi, The Constructed Identities of Asian and African Americans: A Story of Two Races and the Criminal Judicial System, 19 Harv. BlackLetter L.J. 181, 199 (2003).
[257]Id. at 198.
[258] Kevin E. Sralla, The Search for Harmful Prejudice: An Analysis of People v. Budzyn and the Underlying Purpose of the Jury System, 46 Wayne L. Rev. 259, 278 (2000).
[259]Budzin, 566 N.W.2d at 251 (Mich. 1997) (Mallett, C. J., concurring).
[260]Id. at 108 (Boyle, J., concurring).
[261]See Defendant-Appellant’s Brief on Appeal, No. 102654, 1996 WL 33677097 at 41; Defendant-Appellant’s Brief on Appeal, No. 102655, 1996 WL 33655942 at 62.
[262]SeeBudzin, 566 N.W.2d at 245(Mallett, C. J., concurring).
[263]See Khan, supra note __, at 79.
[264]Id. at 85.
[265]See Charles Lewis Nier III, Guilty as Charged: Malcolm X and His Vision for Racial Justice for African Americans Through Utilization of the United Nations International Human Rights Provisions and Institutions, 16 Penn St. Int’l L. Rev. 149, 188 (1997).
[266]See Peller, supra note __, at 758.
[267]See, e.g., Arias-Piranio, supra note __.
[268] Aside from the article I critique in Part II.C.1, infra, most of the articles that mention Malcolm X are not about him entirely or even primarily. C.f., Robert Batey, Clarence and Bigger, and Richard and Malcolm, 48 Stetson L. Rev. 359 (2019).
[269]See Cass Sunstein, What the Civil Rights Movement Was and Wasn’t (with Notes on Martin Luther King, Jr. and Malcolm X), 1995 U. Ill. L. Rev. 191, 206-07 (1995).
[270]See Part II.C.2, infra.
[271]See XX, Deeply Rooted in American History and Tradition: The U.S. Supreme Court’s Abysmal Track Record on Racial Justice and Equity, 15 Ala. C.R. & C.L. L. Rev. 45, 54-57 (2024).
[272]See, e.g., Jacob Tanzer, The Dream, 15-WTR Experience 25, 27 (2005).
[273]See John M. Kang, Martin v. Malcolm: Democracy, Nonviolence, Manhood, 114 W. Va. L. Rev. 937 (2012).
[274]Id. at 967 (Emphasis supplied).
[275]Seeid. at 958-66.
[276]See Malcolm X: Make It Plain [Orlando Bagwell], 53:10-50 (1994).
[277]See, e.g., “The Ballot or the Bullet” (Apr. 3, 1964); “The Ballot or the Bullet” (Apr. 12, 1964); Epps, supra note __, at 137-38, 159; “Malcolm X at Columbia University” (Nov. 20, 1963); “The Black Revolution,” supra note __; “Speech at Ford Auditorium,” supra note __.
[278]See Malcolm X & Haley, supra note __, at 378, 382, 394; Evanzz, supra note __ at 240-41.
[279]See Malcolm X, Message to the Grassroots Movement (Nov. 10, 1963).
[280] Kang, supra note __, at 947-52.
[281]Id. at 962.
[282]Id. at 941-42.
[283]Id. at 958-61, 965.
[284]See Malcolm X & Haley, supra note__, at 30-36.
[285]Id. at 30-36, 40-42.
[286]See, e.g., Andre Henry, All the White Friends I Couldn’t Keep (2022); Reni Eddo-Lodge, Why I’m No Longer Talking to White People About Race ix-xv (2017).
[287] Kang, supra note __, at 965-66.
[288] Id.
[289]See Kang, supra note __, at 952-58.
[290]See Nicholas Johnson, Negroes and the Gun: The Black Tradition of Firearms 13-14, 262, 282 (2014).
[291]See Charles E. Cobb, Jr., This Nonviolent Stuff’ll Get You Killed: How Guns Made the Civil Rights Movement Possible 7 (2014).
[292]See Camille A. Nelson, The Radical King: Perspectives of One Born in the Shadow of a King, 32 N.Y.U. Rev. L. & Soc. Change 485, 495-96 (2008).
[293]See Nelson, supra note __, at 492-01.
[294]Id. at 497-01.
[295] Dr. King said the following in November 1967: “I have found out that all that I have been doing in trying to correct this system in America has been in vain…. I am trying to get at the roots of it to see just what ought to be done…. The whole thing will have to be done away with.” See Strickland, supra note __, at 164.
[296]See Younge, supra note __.
[297]See Part II.A.1, supra.
[298]See Tom Jackman, Who killed Martin Luther King Jr.? His family believes James Earl Ray was framed., Washington Post (Mar. 30, 2018, 10:00 AM), https://www.washingtonpost.com/news/retropolis/wp/2018/03/30/who-killed-martin-luther-king-jr-his-family-believes-james-earl-ray-was-framed/; William Francis Pepper, An Act of State: The Execution of Martin Luther King (2003).
[299]See, e.g., “Findings on MLK Assassination”, National Archives, https://www.archives.gov/research/jfk/select-committee-report/part-2a.html#knowingly; see also Michael M. Baden, MD, American Autopsy 92-93 (2023).
[300]See Leroy D. Clark, A Tribute to Dr. Martin Luther King, Jr.: A Man of Peace and Wisdom, 2 Widener J. Pub. L. 431, 432, 442 (1993).
[301]Id. at 443, 444.
[302]Id. at 443.
[303]Id.
[304]Id.
[305] The only citation Professor Clark offers to support his rendition of Malcolm’s words and philosophy is Spike Lee’s film on Malcolm X. See Clark, supra note __, at 443.
[306]Id. at 443-44.
[307]See John McWhorter, Taking out My Eraser, New Republic (Mar. 4, 2010), https://newrepublic.com/article/73464/taking-out-my-eraser.
[308]See Randall Kennedy, Imagining Malcolm X, American Prospect (Jun. 9, 2011), https://prospect.org/culture/books/imagining-malcolm-x/.
[309]Id.
[310]Id.
[311]Id.
[312]Id.
[313]See A Lie of Reinvention: Correction Manning Marable’s Malcolm X 14-17 (Jared A. Ball & Todd Steven Burroughs 2012)
[314]See Randall L. Kennedy, Protesting Too Much: The trouble with Black Power Revisionism, Boston Review (Mar. 23, 2015), https://www.bostonreview.net/articles/randall-kennedy-protesting-too-much-black-power-revisionism/.
[315] Kennedy, supra note __.
[316]Id.
[317]Id. It should be noted that both the “miraculous resistance in Lowndes County” and “the breathtaking events in Selma” occurred after Malcolm’s assassination.
[318]See Strickland, supra note __ at 43.
[319]See, e.g., M.S. Handler, Black Muslims Asked to Help Treat Addicts Here, N.Y. Times at 84 (Jan. 10, 1964), https://www.nytimes.com/1964/01/10/archives/black-muslims-asked-to-help-treat-addicts-here-claims-of-sect-draw.html.
[320]See Columbia Law Review, Black Muslims in Prison: Of Muslim Rites and Constitutional Rights, 62 Colum. L. Rev. 1488, 1491-92 (1962).
[321]See M.S. Handler, Malcolm X Scores Kennedy on Racial Policy, N.Y. Times at 14 (May 17, 1963), https://www.nytimes.com/1963/05/17/archives/malcolm-x-scores-kennedy-on-racial-policy-says-he-is-wrong-because.html
[322] Tellingly, every person Professor Kennedy cites by name as examples of Black people who were meaningfully involved in the Black freedom struggle agitated primarily or entirely in the south.
[323]See Lance Hill, PhD., The Deacons for Defense 269 (2004).
[324]See generally Jeanne Theoharis, A More Beautiful and Terrible History (2018).
[325] Malcolm X & Haley, supra note __, at 213, 216-19, 234-39, 258-59, 286-87; Strickland, supra note __, at 68-72, 83-85; Evanzz, supra note __, at 35-37, 66, 113-15; Bagwell, supra note __, at 53:10-50.
[326]See, e.g., “Malcolm X in Los Angeles May 5, 1962, Who taught you to hate yourself? full speech,” YouTube, https://www.youtube.com/watch?v=kboP3AWCTkA.
[327]See Strickland, supra note __, at 78.
[328]See Elaina Marx, Trans Medical Care in Prisons, COVID-19, and the Eighth Amendment’s Uncertain Future, 13 Calif. L. Rev. Online 108, 109 (2023).
[329]See Hill, supra note __, at 225, 230, 269.
[330]See Malcolm X & Haley, supra note __, at 378, 382, 394; Evanzz, supra note __ at 240-41.
[331]See Evanzz, supra note __, at 257, 261-63, 270; Kondo, supra note __, at 46-47, 54-56.
[332]See Part II.A.
[333]See Strickland, supra note __, at 160.
[334]See Oliver A. Houck, Human Rights and Wrongs: The Dark Canon of the United States Supreme Court in Environmental Law, 39 UCLA J. Envtl. L. & Pol’y 175, (2021); Boulter, supra note __, at 521.
[335] John Henrik Clarke, Preface, in Malcolm X: The Man and His Times xix (John Henrik Clarke 1969).
[336] Kindaka Sanders, Let My People Go, Part One: Black Rebellion and the Second Amendment Political Necessity Defense, 31 Wm. & Mary Bill Rts. J. 765, 805 (2023).
[337]See M.S. Handler, Malcolm X Scores Kennedy on Racial Policy, N.Y. Times at 14 (May 17, 1963).
[338]See Judson L. Jeffries, Black Power: In the Belly of the Beast 3-4, 298 (2006);
[339]See Hasan Kwame Jeffries, SNCC, Black Power, and Independent Political Party Organizing in Alabama, 1964-1966, 91 J. African Am. Hist. 171, 177 (2006); Simon Wendt, “Urge People Not to Carry Guns”: Armed Self-Defense in the Louisiana Civil Rights Movement and the Radicalization of the Congress of Racial Equality, 45 J. Louis. Hist. Assoc. 261, 283 (2004).
[340]See, e.g., Joshua Clark Davis, Black-Owned Bookstores: Anchors of the Black Power Movement, Black Perspectives (Jan. 28, 2017), https://www.aaihs.org/black-owned-bookstores-anchors-of-the-black-power-movement/#:~:text=Most%20critically%2C%20Drum%20and%20Spear,the%20liberation%20of%20the%20people.%E2%80%9D; Tom Adam Davies, Mainstreaming Black Power 211 (2017).
[341] For instance, Gil Noble rose to prominence, eventually becoming the host of ABC’s Like It Is because of the unrest stirred by the Civil Rights and Black Power movements. See Amsterdam News, Remembering Gil Noble: “Like It Is” Host Dies at 80, Amsterdam News (Apr. 11, 2013), https://amsterdamnews.com/news/2013/04/11/remembering-gil-noble-like-it-is-host-dies-at-80/; Will Guzman, Gil Noble (1932-2012), Black Past (Jul. 29, 2020), https://www.blackpast.org/african-american-history/gil-noble-1932-2012/.
[342]See Peniel C. Joseph, Rethinking the Black Power Era, 75 J. Southern Hist. 707, 708 (2009).
[343]See ‘Policing the Police’: How the Panthers Got Their Start, WBUR (Sep. 23, 2015), https://www.wbur.org/npr/442801731/director-chronicles-the-black-panthers-rise-new-tactics-were-needed; “A Brief History of Copwatch,” LA Copwatch (Jun. 5, 2019), https://lacopwatch.org/2019/06/05/brief-history-copwatch/; “Copwatch,” Justice Committee, https://www.justicecommittee.org/cop-watch.
[344]See Abdul Alkalimat, The History of Black Studies, at 178-190, 201, 205, 207-08, 228-29, 240 (2021).
[345] Kennedy, supra note __.
[346]Id.
[347]See Kondo, supra note __, at 77.
[348]See XX, White Comfort and the Constitution, 72 UCLA L. Rev. 330, 347-51 (2025).
[349]See Newby, supra note __, at 138.
[350]See James Allen, Hilton Als, Congressman John Lewis & Leon F. Litwack, Without Sanctuary: Lynching Photography in America 26 (2000).
[351] Leon Festinger, A Theory of Cognitive Dissonance 1-2 (1968).
[352]See Joy DeGruy, PhD, “Dr. Joy DeGruy Leary: Post Traumatic Slave Syndrome,” Youtubeat 36:14-43:31 (2008), https://www.youtube.com/watch?v=BGjSday7f_8.
[353]See Part II.B & C, supra.
[354]See Part II.A., supra.
[355]See Manning Marable, Malcolm X: A Life of Reinvention (2011).
[356]See, e.g., Jared Ball & Todd Steven Burroughs, A Lie of Reinvention: Correcting Manning Marable’s Malcolm X (2012).
[357] I note these parallels in my other Malcolm article, Malcolm X as Legal Expert and Scholar.
[358] Several legal scholars have used the term “bogeyman” to describe what the rightwing elements of the American law community have done to CRT. See, e.g., Khiara M. Bridges, Language on the Move: “Cancel Culture,” “Critical Race Theory,” and the Digital Public Sphere, 131 Yale L.J. Forum 767, 789 (2022) (“CRT, like Antifa before it, have become a bogeyman.”).
[359]See David Theo Goldberg, The War on Critical Race Theory, Boston Review (May 7, 2021), https://www.bostonreview.net/articles/the-war-on-critical-race-theory/.
[360]See Executive Order 13950 (2020); Executive Order 14190 (2025).
[361]See Sarah Schwartz, Map: Where Critical Race Theory Is Under Attack, Education Week (May 23, 2025), https://www.edweek.org/policy-politics/map-where-critical-race-theory-is-under-attack/2021/06.
[362]See Ginsburg, supra note __, at 2050; David Smith, How did Republicans turn critical race theory into a winning electoral issue?, Guardian (Nov. 3, 2021, 2:28 PM), https://www.theguardian.com/us-news/2021/nov/03/republicans-critical-race-theory-winning-electoral-issue.
[363]See, e.g., Florida Banned Critical Race Theory, But Can’t Define What It Is – Vice News, YouTube, https://www.youtube.com/watch?v=In6NVLANvLc.
[364]See Rashawn Ray & Alexandra Gibbons, Why are states banning critical race theory?, Brookings Institution (Nov. 2021), https://www.brookings.edu/articles/why-are-states-banning-critical-race-theory/.
[365]See Harold A. McDougall, Class Contradictions in the Civil Rights Movement: The Politics of Respectability, Disrespect, and Self-Respect, 1 How. Hum. & C.R. L. Rev. 45, 65-66 (2016).
[366]See “MLK: The Other America,” YouTube, at 22:38-25:40 (Jul. 2, 2015 (from April 14, 1967)), https://www.youtube.com/watch?v=dOWDtDUKz-U (hereinafter, “The Other America”).
[367] Khan, supra note __, at 86,
[368]SeeMalcolm X becomes 1st Black honoree in Nebraska Hall of Fame, Associated Press (Sep. 13, 2022, 5:35 PM), https://apnews.com/article/religion-new-york-nebraska-omaha-aa4ac236d1cdfbf6b2c03e44d2e7aa64.
[369]Id.
[370]See Margery A. Beck, Civil rights icon Malcolm X gets a day of recognition in Nebraska, where he was born in 1925, Associated Press (Mar. 28, 2024, 2:29 PM), https://apnews.com/article/malcolm-x-day-nebraska-272738484ecac71fba0b7919fba94407.
[371]Id.
[372]Id.
[373]Id.
[374]Id.
[375] “Malcolm X – Interview at UC Berkeley (1963),” supra note __, at 3:39-4:05.