105 Pages Posted: 10 Dec 2004 Last revised: 30 Jul 2008
Recent social cognition research - a mixture of social psychology, cognitive psychology, and cognitive neuroscience - has provided stunning results that measure our implicit bias against various social categories. In particular, they reveal that most of us have implicit biases in the form of negative beliefs (stereotypes) and attitudes (prejudice) against racial minorities. This is notwithstanding sincere self-reports to the contrary. These implicit biases have been demonstrated to have real-world consequence - in how we interpret actions, perform on exams, interact with others, and even shoot a gun. The first half of this Article imports this remarkable science into the law reviews and sets out a broad intellectual agenda to explore its implications. The second half explores where implicit bias comes from, and focuses on vicarious experiences with racial others mediated through electronic communications. This, in turn, raises a timely question of communications policy concerning how the public interest standard was recently reshaped in the FCC's controversial June 2003 Media Ownership Order. There, the FCC repeatedly justified relaxing ownership rules by explaining how it would increase, of all things, local news. Since local news was viewed as advancing diversity and localism, two of the three core elements of the public interest, any structural deregulation that increased local news was lauded.
Troubling is what's on the local news. Sensationalistic crime stories are disproportionately shown: If it bleeds, it leads. Racial minorities are repeatedly featured as violent criminals. Consumption of these images, the social cognition research suggests, exacerbates our implicit biases against racial minorities. Since implicit bias is fueled in part by what we see, the FCC has recently redefined the public interest so as to encourage the production of programming that make us more biased. We seek local news for valuable information necessary to plan our lives, but embedded in that information transfer is a sort of Trojan Horse that increases our implicit bias. Unwittingly, the FCC linked the public interest to racism. Potential responses, such as recoding the public interest, and examining potential firewalls and disinfectants for these viruses are discussed. These solutions are explored in light of both psychological and constitutional constraints.
Keywords: Critical race theory, racism, prejudice, IAT, implicit bias, unconscious racism, mass media, consolidation, public interest, local news, political psychology, evolutionary psychology, FCC, broadcast, spectrum, First Amendment
Suggested Citation: Suggested Citation
Kang, Jerry, Trojan Horses of Race. Harvard Law Review, Vol. 118, February 2005; Georgetown Public Law Research Paper No. 627381; UCLA School of Law Research Paper No. 04-25. Available at SSRN: https://ssrn.com/abstract=627381