Black History Month in 2023

“Black history is American history.”

There is more than one way to read (or use) that phrase. On its face, it affirms that no honest or thorough narrative about the United States can possibly exclude the Black story. But from there, one might say, as Morgan Freeman suggested in a 2005 interview with Mike Wallace, that to distinguish or compartmentalize Black history as a subject can also perpetuate racial divisions and tensions. Thus, the statement is paradoxical, pitting the moral or intellectual obligation to engage with the uniqueness of the Black experience against the idealism of a color-blind society.

Of course, we are not a color-blind society in the ways we should be (i.e., the playing field is not level), but even if that ambition were achieved, it is a fallacy to think that color blindness as a matter of justice is synonymous with colorlessness in cultural or intellectual pursuits. As I have said many times, I defend copyright rights because, in principle, they empower the individual to express herself as she chooses and then empower the public to make of that expression what it will. And the result is a diversity of works.

Despite critics’ implications to the contrary, copyright rights fundamentally reject state authority to approve or deny the production of creative works—a critical distinction between American copyright law and its common law antecedents in England.[1] Sadly, however, neither copyright nor the First Amendment can entirely prevent state actors from engaging in censorship through other legal mechanisms, which brings us to a more cunning use of that phrase, as when Florida Gov. Ron DeSantis proclaimed to the TV press that “Black history is American history” in defense of his opposition to part of the curriculum in the African American AP Course.

As the putative leader of a culture war determined to make enemies of neighbors, DeSantis and his ilk exploit the opportunity to tell as many Americans who will listen that to confront (or even hear) certain aspects of the Black story is inherently divisive and tantamount to insisting that White Americans should feel a sense of self-loathing. One cannot deny that there are individuals (Black and White) willing to add fuel to that fire or that there is both good and bad scholarship on every topic, including Black history. But these nuanced distinctions are not what DeSantis’s “anti-woke” political tactic is about, and neither could it be.

It is not possible or appropriate for elected officials to concern themselves with every citizen’s social conduct or every teacher/student engagement or to attempt ad hoc review of every scrap of cultural and academic material. Nobody in DeSantis’s Back to Sleep party has the time, let alone the intelligence, to judge the qualities of every book, essay, or curriculum it hopes to mute because the subject matter threatens the colorless myth of American exceptionalism.

In 1965, when James Baldwin famously debated William F. Buckley, Jr. at Cambridge University, the topic presented was “The American Dream is at the expense of the American Negro.” Baldwin received a standing ovation and won the debate 540 votes to 160. But did Buckley swoon like so many of today’s featherweight conservatives and declare the question itself off limits—too offensive to American idealism to confront? Or when he referred in that debate to Baldwin’s essay The Fire Next Time, can we safely assume that Buckley had read the book rather than make a cowardly proposal to ban it?

Nearly sixty years since that historic joust and almost thirty years after the so-called information revolution, and the progress (to which Buckley alluded in his rebuttal) is a mixed report nationally and a catastrophe in some regions. Columnist Stephanie Hayes, writing for The Tampa Bay Times, remarks on the maturity and deftness of high school students in Pinellas County who last week petitioned their school board to reverse its ban of The Bluest Eye, the first novel written by Nobel Laureate Toni Morrison. Kudos to the students, but seriously?

It is hard not to indulge in gallows humor when a novel published in 1970 is swept into a pathetic, rhetorical war against “wokeness” in 2023. Is there a Woke section in the library or bookstore? Not unless the curator of either is being ironic. Is “woke” the latest reason to shun Baldwin’s 1963 novel Giovanni’s Room? Or what about John Irving’s In One Person in which the protagonist’s coming of age as a homosexual is intertwined with literary discovery and, therefore, confronts Giovanni’s Room through that character’s experience? Is the dialog between Baldwin in 1963 and Irving in 2012 a prime example of “wokeness,” or is it just American literature?

Or, finally, returning to the phrase with which I started this post, is the uniqueness of Baldwin’s experience, in contrast to Irving’s, a reason to celebrate Black History Month? I think so. Not because it is popular to think so, but because although it is true that Black history is American history, it is a subtle but important distinction to say that it is also Black American history. And that story is so complex and distinctive in the world that it is little wonder there are so many extraordinary Black American authors of extraordinary works.


[1] Copyright critics like to point to the fact that proto-copyright regimes in England were intertwined with first the royal prerogative and then then the government’s authority to license the production of certain works, but the U.S. did not retain the power of censorship in even its earliest copyright laws.

James Baldwin photo: Library of Congress, Prints & Photographs Division, Carl Van Vechten Collection, [reproduction number, e.g., LC-USZ62-54231]

Rick Allen Files Amended Complaint Against North Carolina

Copyright News

“This lawsuit is about Piracy, Greed, and Revenge” states Line 1 of the complaint filed yesterday in the North Carolina district court where documentary filmmaker Rick Allen is still seeking justice for the reckless, intentional, and frankly mean-spirited manner in which state officials infringed his copyright rights, deprived him of his lawful property interest in his motion picture and photographic work, and even passed a whole law directly targeting Allen’s intellectual property.

I have written extensively about Allen v. Cooper and the subject of state sovereign immunity (11th Amendment), which bars Allen and others (see posts here and here), from remedies to copyright infringement by states and state entities. I have often written about the subject of state immunity academically, but after a quick read of the amended complaint, which is linked below, I am reminded of the extraordinary human cost of infringing copyright rights. There will be more to write and say about this story, but for now, I urge anyone who is interested to read the complaint for themselves . . .

Rick Allen’s Second Amended Complaint

A Thousand Cuts: AI and Self-Destruction

I woke up the other day thinking about artificial intelligence (AI) in context to the Cold War and the nuclear arms race, and curiously enough, the next two articles I read about AI made arms race references. Where my pre-caffeinated mind had gone was back to the early 1980s when, as teenagers, we often asked that futile question as to why any nation needed to stockpile nuclear weapons in quantities that could destroy the world many times over.

Every generation of adolescents believes—and at times confirms—that the adults have no idea what the hell they’re doing; and watching the MADness of what often seemed like a rapturous embrace of nuclear annihilation was, perhaps, the unifying existential threat which shaped our generation’s world view. Since then, reasonable arguments have been made that nuclear stalemate has yielded an unprecedented period of relative global peace, but the underlying question remains:  Are we powerless to stop the development of new modes of self-destruction?

Of course, push-button extinction is easy to imagine and, in a way, easy to ignore. If something were to go terribly wrong, and the missiles fly, it’s game over in a matter of minutes with no timeouts left. So, it is possible to “stop worrying” if not quite “love the bomb” (h/t Strangelove); but today’s technological threats preface outcomes that are less merciful than swift obliteration. Instead, they offer a slow and seemingly inexorable decline toward the dystopias of science fiction—a future in which we are not wiped out in a flash but instead “amused to death” (h/t Postman) as we relinquish humanity itself to the exigencies of technologies that serve little or no purpose.

The first essay I read about AI, written by Anja Kaspersen and Wendell Wallach for the Carnegie Council, advocates a “reset” in ethical thinking about AI, arguing that giant technology investments are once again building systems with little consideration for their potential effect on people. “In the current AI discourse we perceive a widespread failure to appreciate why it is so important to champion human dignity. There is risk of creating a world in which meaning and value are stripped from human life,” the authors write. Later, they quote Robert Oppenheimer …

It is not possible to be a scientist unless you believe that the knowledge of the world, and the power which this gives, is a thing which is of intrinsic value to humanity, and that you are using it to help in the spread of knowledge, and are willing to take the consequences.

I have argued repeatedly that generative AI “art” is devoid of meaning and value and that the question posed by these technologies is not merely how they might influence copyright law, but whether they should exist at all. It may seem farfetched to contemplate banning or regulating the development of AI tech, but it should not be viewed as an outlandish proposal. If certain AI developments have the capacity to dramatically alter human existence—perhaps even erode what it means to be human—why is this any less a subject of public policy than regulating a nuclear power plant or food safety?

Of course, public policy means legislators, and it is quixotic to believe that any Congress, let alone the current one, could sensibly address AI before the industry causes havoc. At best, the tech would flood the market long before the most sincere, bipartisan efforts of lawmakers could grasp the issues; and at worst, far too many politicians have shown that they would sooner exploit these technologies for their own gain than they would seek to regulate it in the public interest. “AI applications are increasingly being developed to track and manipulate humans, whether for commercial, political, or military purposes, by all means available—including deception,” write Kaspersen and Wallach. I think it’s fair to read that as Cambridge Analytica 2.0 and to recognize that the parties who used the Beta version are still around—and many have offices on Capitol Hill.

Kaspersen and Wallach predict that we may soon discover that generative AI will have the same effect on education that “social media has had on truth.” In response, I would ask the following: In the seven years since the destructive power of social media became headline news, have those revelations significantly changed the conversation, let alone muted the cyber-libertarian dogma of the platform owners? I suspect that AI in the classroom threatens to exacerbate rather than parallel the damage done by social media to truth (i.e., reason). If social media has dulled Socratic skills with the flavors of narcissism, ChatGPT promises a future that does not remember what Socratic skills used to mean.

And that brings me to the next article I read in which Chris Gillard and Pete Rorabaugh, writing for Slate, use “arms race” as a metaphor to criticize technological responses to the prospect of students cheating with AI systems like ChatGPT. Their article begins:

In the classroom of the future—if there still are any—it’s easy to imagine the endpoint of an arms race: an artificial intelligence that generates the day’s lessons and prompts, a student-deployed A.I. that will surreptitiously do the assignment, and finally, a third-party A.I. that will determine if any of the pupils actually did the work with their own fingers and brain. Loop complete; no humans needed. If you were to take all the hype about ChatGPT at face value, this might feel inevitable. It’s not.

In what I feared might be another tech-apologist piece labeling concern about AI a “moral panic,” Gillard and Rorabaugh make the opposite point. Their criticism of software solutions to mitigate student cheating is that it is small thinking which erroneously accepts as a fait accompli that these AI systems are here to stay whether we like it or not. “Telling us that resistance to a particular technology is futile is a favorite talking point for technologists who release systems with few if any guardrails out into the world and then put the onus on society to address most of the problems that arise,” they write.

In other words, here we go again. The ethical, and perhaps legal, challenges posed by AI are an extension of the same conversation we generally failed to have about social media and its cheery promises to be an engine of democracy. “It’s a failure of imagination to think that we must learn to live with an A.I. writing tool just because it was built,” Gillard and Rorabaugh argue. I would like to agree but am skeptical that the imagination required to reject certain technologies exists outside the rooms where ethicists gather. And this is why I wake up thinking about AI in context to the Cold War, except of course that the doctrine of Mutually Assured Destruction was rational by contrast.


Photo by author.