Last year, after the murder of George Floyd, many news organizations announced that they would be capitalizing the word “Black” when referring to people, communities, or culture. The National Association of Black Journalists had recommended doing so “out of respect for . . . the Black diaspora.” Media companies following the recommendation included the Associated Press, USA Today, the New York Times, the Los Angeles Times, Fox News, the Dallas Morning News, and the Minnesota Star Tribune. (See commentary here, here, and here.)
The NABJ also recommended capitalization “whenever a color is used to appropriately describe race . . ., including White and Brown.” Not everyone is on board with capitalizing “White,” however. This includes the AP, which in July 2020 reported, “Columbia Journalism Review, the Wall Street Journal, The New York Times, USA Today, the Los Angeles Times, NBC News and Chicago Tribune are among the organizations that have recently said they would capitalize Black but have not done so for white.” The Columbia Journalism Review explained, “For many people, Black reflects a shared sense of identity and community. White carries a different set of meanings; capitalizing the word in this context risks following the lead of white supremacists.”
So, what about California Supreme Court opinions?
To begin with, there’s the California Style Manual, which appellate brief writers are “encouraged to follow” (Advisory Committee Comment to rule 8.204(b)), but which hasn’t been updated since the turn of the century. It first says that “[r]eferences should normally track the identification terms found in the record (e.g., African-American, not Black, if the record consistently reflects that usage),” but then goes on to direct, “Capitalize terms used to designate race and ethnicity, including Black and White.” (Cal. Style Manual (4th ed. 2000) § 5:1[A], p. 174.)
For the most part, the court has followed the Style Manual in capitalizing “Black” and “White,” when not using “African-American” (which is fairly frequent, but with inconsistency on whether to hyphenate the term) and, occasionally, “Caucasian.” And this is true for opinions filed before and after the media shift. Indeed, in one opinion, the court capitalized “Black” in relating the facts stated in a U.S. Supreme Court decision, even though that Court had used lower case “black” to describe the defendant. (People v. Brown (2015) 61 Cal.4th 968, 982, citing Florida v. J.L. (2000) 529 U.S. 266, 268; see here.)
There have been some noticeable deviations and changes, however.
For one thing, Justice Goodwin Liu consistently bucked the Style Manual before the Floyd murder, using lower case for “black” and “white” people. (E.g., People v. Johnson (2019) 8 Cal.5th 475, 528 (dissenting opinion); see here.) Afterward, by contrast, he is regularly capitalizing both “Black” and “White.” (E.g., People v. Battle (2021) __ Cal.5th __, __ (dissenting opinion); see here.) One exception: Justice Liu capitalized “Black” but not “white” in his concurring opinion in B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 32 (see here).
There have been a few other instances of lower case references. (E.g., People v. Scully (2021) 11 Cal.5th 542 [278 Cal.Rptr.3d 792, 818], see here; People v. Reed (2018) 4 Cal.5th 989, 998, see here.) But the authors of those opinions have most often used capitalization in other opinions.
Another change has been the recent eschewing of capitalization when discussing white supremacy. The last uses of “White supremacy” or “White supremacist” were apparently five years ago. (People v. Landry (2016) 2 Cal.5th 52, 61, see here; People v. O’Malley (2016) 62 Cal.4th 944, 973, fn. 7; People v. Johnson (2016) 62 Cal.4th 600, 608, see here.) Since then, it’s been lowercase “white supremacists,” starting with People v. Powell (2018) 5 Cal.5th 921, 930 (see here), and continuing most recently in People v. Scully (2021) 11 Cal.5th 542 [278 Cal.Rptr.3d 792, 814] (see here).
We understand a revision of the Style Manual is in the works. It’ll be interesting to see if § 5:1[A] gets a makeover.
