Free Speech

A Question About Unexpurgated Language and Lawyers or Law Students

|The Volokh Conspiracy |

Here's an excerpt from a 2016 Ninth Circuit oral argument in an employment discrimination case, Reynaga v. Roseburg Forest Prods.; the questioner was the late Judge Harry Pregerson, a highly respected liberal judge:

PLAINTIFF'S LAWYER: I believe at one time there was a Black person there. It's a, it's a very White part of the, the world.

JUDGE: Now, Mr. Branaugh, he kept making references like this to your client and these are all in the record. He used to—he, he would refer to Black people as niggers.

LAWYER: Yes.

JUDGE: As niggers. And then Branaugh told Reynaga in September of 2009 after Reynaga received hunting tags for a second year in a row, "I'm a true believer that we should close the borders to keep motherfuckers like you from coming up here and killing our elk."

LAWYER: He did.

JUDGE: He's saying that to him?

LAWYER: Yes. It's undisputed.

JUDGE: And then he left a printed email in the break room that had an article about Obama being an illegal alien and stated that, our borders are like sieves.

LAWYER: Yes. Yes.

JUDGE: And [inaudible] he jury could take these as reference, all of these as reference to, to, to the plaintiff here.

My question: Say there were black lawyers in the audience—perhaps the arguing lawyers' junior associates, who came to help and to learn; law clerks (young lawyers working for the judges and preparing to draft the opinions); other lawyers whose cases were up later that morning; in some other case like this one, the arguing lawyers (these ones appeared to be white, but in another they could easily have been black); or anyone else. How do you think they likely reacted to the judge's accurately quoting the record, in saying that Branaugh had called Blacks "niggers"?

  1. They were traumatized or at least highly pained by even hearing the judge say the word—not just rightly angry that defendant's employee Branaugh had used the word in his workplace back in 2009 (an anger that they would have and should have felt even had they heard him described as saying "the n-word" instead), but deeply upset by the very fact that the judge had accurately quoted the word from the record in court. Chief Judge Sidney Thomas should have apologized for the pain the judge had caused black lawyers.
  2. They weren't traumatized or highly pained; instead, they listened to this pretty much as they would listen to most other unpleasant facts about unpleasant people doing or saying unpleasant things. They were just doing what lawyers do: They were just trying to think about how to best deal with this line of argument. Or they were trying to figure out what the judge and his colleagues were likely thinking about the case, so they could give their clients a sensible prediction of how the case would come out. Or, if they were law clerks, they were thinking about how to draft the eventual opinion. Or they were trying to learn more about the judge's approach to argument in preparing for their own argument. Indeed, if they were momentarily slightly upset, they made sure to suppress this reaction, so they could continue effectively performing their lawyerly tasks.

My sense is that the answer is (2). And, because of that, I think we should expect law students to be able to deal with such words just as we expect law clerks and practicing lawyers to do the same.

Indeed, I think we would be doing our students a disservice by operating our law schools as if students were entitled to be shielded from even hearing such words quoted. Taking such a view, and conveying it to students, would poorly prepare them to become lawyers in a world where ugly words are a staple of litigation, heard eventually at oral argument but before that quoted by clients, witnesses, colleagues, and opposing counsel, all discussing the facts of the case. And it would poorly prepare them for their first task as lawyers being to learn the unvarnished truth, whether about the facts of the case or what a judge is thinking or how some witness or adversary sees the world (even if, after that, the lawyer has to varnish it hard indeed to suit the client's agenda).

Now I acknowledge that the judge could have used a euphemism instead, both in oral argument and in the opinion (which quotes the word without euphemism three times, as more than 10,000 other court opinions do). But he didn't, perhaps because he thought that a Ninth Circuit courtroom is a place for people to discuss the facts of the case candidly and precisely (my view of a classroom as well). In any event, my question here is simply how lawyers in the audience likely reacted to this choice, a choice made in many other courtrooms as well.

But that's just my conjecture: Tell me what you think, in the comments.

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  1. I don’t know how they’d react to such language from a judge, but I know how they *wouldn’t* react – they wouldn’t attack the judge and call him a racist, simply because they wouldn’t have the power to do it and the effort would backfire.

    It’s different with students and professors – administrators often indicate that students are in the driver’s seat and can lob accusations and demands at their professors, generally without adverse consequences to the students. Even if any particular attack is unsuccessful, it will only end in a draw, with neither side being penalized.

    1. It’s power — and needs to be recognized as such.
      And I’m not so sure about judges — former Massachusetts Judge Michel Creedon might disagree with you on that.

      https://www.wcvb.com/article/panel-that-disciplines-judges-in-the-spotlight-after-judge-allowed-to-quietly-retire/9114446#

    2. I do agree that this is a central part of the issue. It is fun, and feels empowering, to bring authority figures to heel. And colleges, which have become more sensitive to the desires of their customers, are a perfect place to exercise such power.

      Having said all that, I don’t think it is ALL performative. Some people probably would wince at Pregerson’s question. But, as Prof. Volokh says, part of law practice is hearing or seeing some things that make you wince.

      1. I think the defendents Lawyer winced the most. In fact i can’t think of a better way to reduce the damage awards in a discrimination case like than to use euphemisms and keep the actual words out of the record as much as possible.

        1. Indeed. Same reason it was important for F Lee Bailey to use the word when questioning Fuhrman. It loses its sting if you don’t say it.

        2. I have feeling the judge quoted the exact word precisely to make the point of how outrageous the behavior was. Using a euphemism would have robbed those statements from the bench of their impact.

          1. Yeah.

            And that’s the problem with the “you can just use the euphamism” in class discussion (though I do see the other side as well- I’m just damned uncomfortable saying the n-word and would look for any opportunity not to say it). Using the euphamism stacks the deck in favor of the person who says the word; it sanitizes what they did and blunts its full impact, which can affect how people view the case.

            1. A large part of my practice is discrimination cases, and there is often testimony that somebody used a racial/religious/sexual slur — most commonly “n****r.” Often, because witnesses are decent people who don’t like to use such language, the testimony frequently goes something like this:
              Q: What did the defendant say?
              A: He called the plaintiff the n-word.
              Q: Did he say quote “n-word” quote or did he say the actual n-word?
              A: He said the n-word.
              Q: I need to be clear. Did the defendant say “n-word” or did he say the n-word itself.
              A: I don’t understand.
              Q: He called the plaintiff a “nigger,” didn’t he?
              A: Yes.
              Q:

    3. ” administrators often indicate that students are in the driver’s seat”

      Perhaps because the students are the paying customers?

      1. The thing is, that’s an “is” and not an “ought”.

      2. Yeah, and they should set the grading scale too i suppose.

        It would be fine if the students as a whole set university policy, at least in the long run, but certainly having just the loudest complainers set new policy for every controversy would be a disaster.

        UCLA law school students, as a whole, who worked pretty hard to get in, and stay in a top 15 law school will ultimately want to maintain the standards that make their law school degree worth paying for rather than sacrifice the quality for PC rigamarole that shelters them from the real world at the expense of their preparation for the real world.

  2. How many people are inclined to turn to a white, male, conservative blog for pointers on modern discussions of race-related issues?

    Surely there are a few faculty members at good law schools who would try to help colleagues who appear to be struggling with this issue.

    1. “white, male”

      Why do you consider these to be derogatory terms?

      Are you a woman of color who has experienced mistreatment at the hands of white males?

      Or are you a white male yourself, and knowing that *your* opinions are worthless, conclude that the opinions of *all* white males must be worthless as well?

      1. Let’s go one step further — a year or so ago, much angst was raised when “It’s OK to be White” posters started appearing in academia. Now I’m not commenting on those posting them nor their motives, only the content of the postings themselves — what the hell was wrong with that?

        We’ve had over forty years of unabashed open warfare on White heterosexual males, and I suggest people think about what Yeats wrote about the middle ceasing to hold.

        1. We’ve had over forty years of unabashed open warfare on White heterosexual males, and I suggest people think about what Yeats wrote about the middle ceasing to hold.

          I love this. It so perfectly encapsulates the white, male heterosexual’s sense of his own centrality of the universe, supported by the kind of inane, ignorant, half-remembered citation that typifies white, male heterosexual discourse.

          1. Read the tea leaves masochist and substitute white male for anything else and realize what a vile bigot you are

            1. Yeah, I think white, male heterosexuals will do just fine, my “bigotry” agains them notwithstanding.

          2. Well, white men did build this Western Civilization that you inhabit, for good or ill, warts and all. Eh?

            1. Well, white men did build this Western Civilization that you inhabit, for good or ill, warts and all. Eh?

              Well, I mean, no.

              I am not sure what kinds of massive over-simplifications you have in mind, but the course of what we call “western civilization” hasn’t been shaped by any single race of men, or any single through-line that we can describe as “white,” in the modern parlance, or independent of the intervention of other “non-white” civilizations and cultures, or whatever.

              If you want to engage in this kind of white-supremacism, you should put a pin in the history at some point and say, “There is where ‘western civilization’ began,” and be precise about what you mean to include within and without its scope. Otherwise it’s just jingoism.

              1. The Industrial Revolution stated in northwest Europe, specifically England, about as white and Christian as you could get at the time. Admitting this truth is white supremacy only to those who are ashamed that capitalism lifted billions out of poverty while socialism murdered 100 million last century, and to top it off, socialism can’t exist by itself, but only when it can leech off capitalists’ money.

                To other people, it’s just a fact of history. It’s no more relevant to social justice than that they spoke English.

                1. If your answer to ‘white people build civilization’ is to argue that it’s actually a statement about capitalism, you’ve got some serious wires crossed.

                  1. You can’t explain that, can you? Try saying something useful. Don’t just assert negations.

                  2. “If your answer to ‘white people build civilization’ is to argue that it’s actually a statement about capitalism, you’ve got some serious wires crossed.”

                    I know. The comment totally encapsulates the white, male heterosexual’s sense of his own centrality of the universe, supported by the kind of inane, ignorant, half-remembered citation that typifies white, male heterosexual discourse.

                  3. I said white men built *Western Civilization*. There are civilizations everywhere in the world, such as China, or Australian Aborigines, or some such. But the point stands, that white men build Western Civilization, which presumably SimonP inhabits being a regular commentator on Reason.

                  4. p.s. Free market capitalism built upon the industrial revolution (which started in N. Europe and nowhere else) is so historically intertwined with Western Civ, that like Marx and others have noted due to it’s propensity for exporting its model, defines it (to a large extent.

                    So, while Eastern Civ, like China and India may be industrialized, to bring up the industrial revolution to Western Civ is to like bringing up the “dynasty” history of China, endemic to it.

                    1. The industrial revolution?

                      Tell me, m_k, what commodity was essential to the industrial revolution, and where did it come from, and how was ir produced?

                  5. Sarcastr0….you forgot a very important word (for context)

                    Well, white men did build this Western Civilization that you inhabit, for good or ill, warts and all. Eh?

                    That is a true statement. White men did build Western civilization. That building process took the better part of 1,000 years to do.

                    1. Except that’s not true either. Imperialism, colonialism, slavery, were all integral parts of making Western Civ go.
                      Not to mention elliding the influence of women. Not getting credit != not having influence.

                      Not to mention the protean nature of whiteness. Italians? Germans? Irish? Jewish?!!

                      For that matter, what does Western mean? Most of the time I see it as a laundered version of white. Which makes ‘white men created white civilization’ which is the kind of tautological self-validation one might expect of people who feel oppressed for being white (validly or invalidly).

                    2. Sarcastro, I’m not sure you’re trying to get down to first principles, or your penchant for question begging is leading you down a rabbit whole because it’s difficult for you to accept that warts and all, white men built western civilization.

                      What does “white” and “western” mean? It means what it usually means when we are talking about the broad swath of history, European and later Christian. You can’t have precise definitions when you’re talking about culture, because there is always overlap and exchange. But just because the culture of New York shares characteristics of the culture of California, doesn’t mean you can’t say they are both in their own way unique.

                      I never said imperialism and colonialism were NOT part of Western Civ…it’s partially why its model of industrial technology spread, aside from its utility in mass production of the everyday needs of citizens (despite environmental downsides).

                      But imperialism and colonialism and slavery were integral parts of most civilizations. The Aztecs created an empire and colonized the land of subjugated peoples, the Persian empire wanted to make a colony of the Greeks peninsula and practiced slavery..etc. etc. What purpose do you have for specifically calling out Western Civ for this ubiquitous sins?

                      And please, you live in the wealthiest and healthiest civilization that mankind has every produced. YOU, yes, YOU, have a better standard of living than a Roman Emperor! Defending this has nothing to do with victimhood.

                    3. I’m not saying civilization is invalid if it involves slavery and imperialism. Rather, imperialism and colonialism sure did involve and were influenced – indeed required- a whole lot of nonwhites.

                      Your saying ‘we’re going to use the current common parlance’ ignore my point – common parlance is a moving target. Your statement used to be thought of as true back when white was a disctinctly smaller subset – one we would not think of as the only folks involved with Western Civilization today. How can you be sure the current set is the right one, given that whiteness continues to change it’s meaning?

                      It says a lot about the picture of a liberal that you keep in your head how you keep misunderstanding what I’m saying. You keep thinking I’m condemning the civilization part when what I’m pushing back is the ‘white men built Western’ part of the statement.

                    4. Would you just stop, please stop, with the “it says about you” tripe. I know, I do it back to you because my (failed) hope that a taste of your own sour medicine would open your eyes to its failure as rhetoric. I think you enjoy the moral superiority you think it affords you, and since you like that dopamine hit, and I don’t expect you ever to give it up completely.

                      You’re exasperating. After your pedantry about what is “white” and “western” *after* you misquoted my comment and dropped the “Western” from it, and after you make normative claims about all civilizations when I was only speaking about Western Civ, now, now, you just take issue with the “white male” part of the claim? That brassy.

                      So tell me, then, who built western civilization besides white men?

                      And at the outset, let me say that Women, yes, had an influence, not to mention bore all the children. But in the era before feminism, they did not create the institutions and discoveries, bad and good, that define it. Women did not create the steam engine or build Notre Dame, etc. etc. The post feminism influence of women on Western Civ is still playing out and is tiny in the sweep of history. Further, as the radical feminist Camille Paglia has rightly pointed out, that “If civilization had been left in female hands, we would still be living in grass huts”.

                    5. I say it because I mean it. In this case, for instance you misunderstood my thesis. Because you thought I was somehow anti-America. That wasn’t in my original comment; it came from you.

                      In the era before feminism, they did not create the institutions and discoveries, bad and good, that define it. This is wrong. Again, credit != actuality. Not to mention the culture and philosophy that allows innovation is something from all of society, not just men.
                      Not to mention pretty important queens.

                      You’re wrong on the facts. Read something about women in European history. Or women in the history of science.

                    6. Sweet Jesus, I didn’t say anything about America…but Western Civ as a whole. Why do you keep on characterizing and misquoting?

                      Queens, the few there were, had fathers who were kings, and their successors were kings. Who ran their armies and manned their bureaucracies? Men. Queens were the few, exceptional women who ruled by dint of their linage only, and not by dint of ability. And I *said* upfront women had some influence, and bore the children. But they did not build the institutions, man the armies, defend the borders, or do most of the inventing and building. For most of history they weren’t allowed too! If you point to an occasional black swan, it doesn’t change the fact that that most swans are white. One Madam Curie does not mean that women gave the world modern chemistry.

                      You’re wrong on the facts, and it’s easy to prove. How? Because you can’t tell name any other group that built western civilization besides white men…all you can do is a sort of “no u” middle schoolism logic.

                    7. “You’re wrong on the facts. Read something about women in European history. Or women in the history of science.”

                      I, and I’d wager XY and M_K, are familiar with Madame Curie, Rosalind Franklin, Lise Meitner, et al.

                      But come up with your personal list of the 100 most important scientists of the last 1000 years. What percentage are female?

                      XY and M_K don’t seem to be suggesting that women are worse at science than men, they are just reporting the actual historical fact that there weren’t a lot of female scientists in bygone years because the society of the day didn’t really allow it.

                      I mean, Maggie Thatcher was the first female British P.M. That’s not saying she wasn’t good at it, or that women in the 1700’s wouldn’t have been good prime ministers, but saying that all the P.M.’s before her were male isn’t sexism, it’s reality.

                    8. Neither am I claiming that M_K’s thesis is that women are worse at science – I get that his argument is that they were too disenfranchised to contribute.

                      I don’t buy that.

                      I don’t think top 100 scientists is a good metric for how progress is made – it’s a collective movement thing, and it’s not just the individual scientists, it’s collaborative. And scientists don’t just collaborate with their colleagues. (See: Einstein’s letters to his wife).

                      But more than that, really my main thesis is that the civilization that supports and encourages such innovation was not designed by white men in a vacuum.

                    9. But Sarcastro, nobody made the argument that white men built western civilization in a vacuum. Not only did I say up front women contributed, but that there was cultural exchange. I did say that the industrial revolution only started in N. Europe, and that is a true fact, but that’s not the whole of anybody’s argument. Instead of straw-manning, try “steel-manning”.

                      Okay, what metric WOULD you propose rather than listing of influential scientists (if we are going to use scientific advancement as a metric)?

                    10. Well, white men did build this Western Civilization that you inhabit, for good or ill, warts and all. Eh?

                      m_k, hard to argue that isn’t giving all the credit to white men.

                    11. Yet, somehow that’s what I’m explicitly not doing, now am I?

                2. The Industrial Revolution stated in northwest Europe, specifically England, about as white and Christian as you could get at the time.

                  And the Industrial Revolution depended on what commodity?

                  1. Cotton. Which was grown in the American South on plantations…but during the Civil War was swapped out for Egyptian cotton as an alternate supply.

                    Check.

              2. What SimonP doesn’t understand is that Western White males accepted others as equals and — essentially — considered them White males too.

                The largest immigrant group (as a percentage of the whole) that this nation ever had — came from Germany. Edmund Burke’s concepts of “Rights of Man” became adopted into the current concept of “Human Rights.”

                1. Western White males accepted others as equals and — essentially — considered them White males too.

                  This…has a lot to unpack in it.

                2. What SimonP doesn’t understand is that Western White males accepted others as equals and — essentially — considered them White males too.

                  Western white Christian males have a very long and very nasty history of not accepting others as equal.

                  That trends in recent decades have been favorable doesn’t change that, nor does the fact that other groups haven’t always accepted outsiders as equals either.

                  1. All of humankind has a very long and very nasty history of not accepting others as equal.

                    1. Sure do. That some only blame whites for being human, and ignore that other humans are also human, is an interesting exercise left for the student of human affairs.

                    2. Please read my comment more carefully. I said

                      “That trends in recent decades have been favorable doesn’t change that, nor does the fact that other groups haven’t always accepted outsiders as equals either.”

                      My point was that, contra Dr. Ed, white Christian males are also guilty of this.

                      Remember that since Western civilization is, and has always been, overwhelmingly dominated by white Christian males, their persecution and oppression of others has been a particularly common and notable feature of western history.

                    3. But Western Civilization is the first one to stop using slaves, and prevent, slavery from other cultures throughout the world. The untold sums of vast wealth the British people poured into the preventing the slave trade through their Navy are just forgotten?

                      Be thankful western civ won, for a time, set the world order. Can you imagine if China had not become xenophobic and discovered America instead? You want to live under their system or ours?

                    4. The untold sums of vast wealth the British people poured into the preventing the slave trade through their Navy are just forgotten?

                      Why don’t we weigh those sums against the profits the British earned from slave labor, both from slave trading and the exploitation of slave labor?

                      I bet the British came out way ahead.

                    5. Can you imagine if China had not become xenophobic and discovered America instead? You want to live under their system or ours?

                      Oh come on.

                      First of all, they weren’t going to, xenophobia or not. They lacked the nautical skills and experience of the European countries, for one thing. Also ypu might notice that the trip would have been a good bit further than the one from Europe to North America.

                      Second, leaving all that aside, what if they had? Do seriously imagine that the history of China and North America would have gone about the same way it did had the Chinese settled and colonized the west coast?

                      Third, at the time of the age of exploration European countries were monarchies, just as China was. Were the systems at the time that different?

                    6. I wouldn’t be so dismissive of the British being the ones to, effectively, prevent the worldwide slave trade…and the West ending it world wide and continuing to prevent the practice. The Arabs, as we’ve seen recently with ISIS, would pick it up again.

                      During the Ming dynasty, which ruled China from 1368 to 1644—a golden age in terms of China, Zheng He, embarked on 7 voyages around the Western Pacific and Indian Oceans, more than half a century before Christopher Columbus. They could have replaced Spain/England/France etc. in world history.

                      I’m not saying the West was spotless in history, but they aren’t doing terrible things TODAY. Meanwhile, TODAY, China is colonialist and is doing terrible things to Tibet and the Uyghurs and is blatantly racist to it’s black sub-population…we both acknowledge that this is bad I presume.

                      I’m asking you to engage in a thought experiment. If China, not the West, had spread, worldwide, they would do TODAY what the west only did in the past?

          3. I as a white male do feel secure in my role at the center of the universe because I’m told so frequently how privileged I am, and how I’m assured of success just by showing up.

            Thank you everyone sincerely for the confidence boost.

        2. “We’ve had over forty years of unabashed open warfare on White heterosexual males”

          We’ve had several years of nutty academics saying dumb things about white heterosexual males. The “It’s OK to be White” signs are a successful attempt by some people, many of whom are a little Nazier than you’d hope, to bait academic administrators into acting like there is a war on white people.

          1. Yes, I suspect the leafleters’ motives, while varied, are not uniformly pure, but they correctly anticipated that the response they’d get would reinforce certain kinds of “war on whites” talking points.

          2. A cleaned-up version of the Neo-Nazi recruitment line is that “the first job will go to the son-in-law, and the second will go to the woman/minority/LBGTQ, and you will only have a chance at the third job — except that there won’t be three jobs.”

            Now I tell them to go fuck themselves — even though they actually are right on this — but my guess is that a lot of other people don’t.

            And it isn’t just what the nutty academics *say* but what they also *do*, although I do believe the abovementioned case turned on what the employer’s employee *said*…

            1. Now I tell them to go fuck themselves — even though they actually are right on this — but my guess is that a lot of other people don’t.

              ‘The neo-Nazi argument isn’t wrong, but don’t get me wrong, I’m not a neo-Nazi.’

              1. I’ll come to Ed’s defense here. It is perfectly logical to point out an agreement with part of a group’s messages, while disclaiming the overall message. If Hitler (Godwin’s Law alert!) had written down a list of his 1,000 core beliefs; I suspect that I’d disagree with 998, and agree with the two that dealt with dogs and how wonderful dogs are.

                On the other hand–of course!!!–it’s always a bad look to deliberately lump oneself in with neo-Nazis, Hitler, etc..

                1. You understand the humor of invoking Mike’s name in this successor blog to cyberia-l, right?

                  1. Who is Mike? What is cyberia-1??? (So, I guess the answer to your question would be: No, not only do I not see the humor you’re talking about . . . I don’t even get the reference) 🙁

                    1. Mike is Mike Godwin, the author of Godwin’s Law, and he posted often on the Cyberia-L e-mail discussion list back in the 1990s. I was on that list back then as well; but this blog isn’t in any meaningful sense a “successor blog to cyberia-l” — I just happened to be one of many users of that discussion list (which was never a blog, I think), and then some years later I started this blog.

                    2. Ah. Got it. 🙂

                2. No, santamonica811, you’d probably have believed with a lot of Hitler’s beliefs. The Volkswagen (People’s Car — cheap enough for everyone to afford) the divided limited access highway (that Eisenhower adopted 20 years later)

                  Even when you get into the absolute worst of it — “Dr.” Joseph Mengele — it was how they accomplished their goals, not the abstract goal of advancing medical science. A lot of people — a lot of Jewish people — are alive today because of the cardiac research the National Socialists performed in the death camps. That’s a tough ethical issue that a lot of people don’t think about….

                  1. Yes, because if the Nazis hadn’t performed gruesome medical experiments (such as removing bones, muscles and nerves without anesthesia), no other cardiac research would have succeeded. I don’t think it’s a tough ethical issue at all.

                    1. Don’t be obtuse, you know that’s not what I mean.

                  2. The Volkswagen (People’s Car — cheap enough for everyone to afford) the divided limited access highway (that Eisenhower adopted 20 years later)

                    These were not Hitler’s “beliefs.” They were projects accomplished by German engineers.

                    A lot of people — a lot of Jewish people — are alive today because of the cardiac research the National Socialists performed in the death camps. That’s a tough ethical issue that a lot of people don’t think about….

                    Both those sentences are false.

                    Do you ever get tired of spreading BS?

                    1. “The Volkswagen (People’s Car — cheap enough for everyone to afford) the divided limited access highway (that Eisenhower adopted 20 years later)

                      These were not Hitler’s “beliefs.” They were projects accomplished by German engineers.

                      Some of the same engineers who were involved in the Apollo program 30 years later — and neither Presidents Kennedy nor Johnson had anything to do with it. And look into “Operation Paperclip” if you wish to consider an ethical issue — Wernher von Braun also should have been tried for war crimes.

                      Hitler offered the German people a Faustian bargain — jobs and material prosperity in exchange for blind obedience. Germany was a mess with 30% unemployment (what we have in this country right now) and the initial Autobahn work was done by hand. Literally with picks & shovels — and the old moviereel footage shows large numbers of newly-employed men marching off with shovels and doing this work by hand.

                      Volkswagen — volks-wagen which literally translates to people’s-wagon — was founded in 1937 by the Nazi labor union — the one they had created to replace all the prior existing unions. They were built in a state-owned factory and in Germany of the late 1930’s, that was Hitler.

                      No, Hitler didn’t design the piston rod assemblies of the Volkswagens, no more than Andrew Carnegie designed the blast furnaces in his steel mills or John Rockefeller design a distillation tower. But — well, if you aren’t being deliberately obtuse — you get my point.

                      And while no reputable doctor today would admit using Nazi medical knowledge today, and even fewer would in the 1950’s, why do you think that the former Republic of South Africa was so prominent in cardiology? Think about that for a minute…

                      And I am getting tired of defending myself against false allegations….

                    2. Hitler did not offer only prosperity, Ed…nor have you made the case that Nazi ideology or policies were necessary for the success of the German car industry.

                      Our history is built on all sorts of unsavory things, I don’t get you point there.

                      And you still say you agree with the neo-Nazi ideological statement “the first job will go to the son-in-law, and the second will go to the woman/minority/LBGTQ, and you will only have a chance at the third job — except that there won’t be three jobs.”

                      That kind of negative partisanship is more center-mass Nazi than some car company. (It’s also been a pretty strong vein in GOP thinking since the White Hands ad)

              2. “The neo-Nazi argument isn’t wrong…”

                The neo-Nazi argument is backwards. If you look at some of your more Commu…, I mean, Democratic Socialist countries in Western Europe, there’s loads of nepotism and racial discrimination, but it’s old fashioned kind. Non-EU immigrants have a very difficult time assimilating in Europe, largely because of a highly regulated economy.

                1. Come on, TiP.

                  Saying that Western European social democracies are in principle no different than the Soviet Union is silly.

                  1. I didn’t say that they were no different. Just less different than one might want.

                    1. That depends on who “one” is.

                      It seems to me that the differences are huge.

                      Multi-party democracy vs single-party despotism.
                      Peaceful vs. militarily aggressive and expansionist.
                      Successful economy vs. dysfunctional, poorly performing one.
                      Foreigners want to immigrate to there vs. residents want to emigrate from there.

                      You think the government’s hand in thise countries is too heavy to suit you. Fine. But in principle we are talking about free prosperous democracies as opposed to an unfree dictatorship which ahd a hard time providing basic consumer goods to its people.

                    2. “But in principle we are talking about free prosperous democracies…”

                      Again, not as free as you might want. No free speech, for example.

                    3. I concede that I prefer American free speech principles to what I think – though I’m not up on it – are more restrictive practices in Europe.

                      Still, those practices don’t make Europe North Korea, not by a long shot.

                      Since you intriduced the term “motte and bailey” into the thread, I’d say your retreat from “some of your more Commu…, I mean, Democratic Socialist countries in Western Europe,” to complaining that they haven’t adopted the First Amendment is a good example of the genre.

                    4. ” I’d say your retreat from “some of your more Commu…, I mean, Democratic Socialist countries in Western Europe,” to complaining that they haven’t adopted the First Amendment is a good example of the genre.”

                      You mean going from, “Germany is exactly like the USSR,” to “Germany has some limits on free speech”? Yeah, that would be a good example.

                    5. Thank you. And thanks for introducing the concept.

                      What would you call the mirror image?

                      Say you said, “Germany has some limits on free speech,” and I responded, “What you say is nonsense. Germany is not a communist country.”

                    6. “Say you said, ‘Germany has some limits on free speech,’ and I responded, ‘What you say is nonsense. Germany is not a communist country.'”

                      No, but it is a western European Social Democracy.

              3. Your way or the highway; if something doesn’t support your narrow view, it has no merit, no meaning, no sense.

            2. “A cleaned-up version of the Neo-Nazi recruitment line is that ‘the first job will go to the son-in-law, and the second will go to the woman/minority/LBGTQ, and you will only have a chance at the third job — except that there won’t be three jobs.'”

              In Trump’s America, the first job DID go to the son-in-law, and the second went to the yes-man, and all the other jobs disappeared fighting the pandemic thanks to our initial plan of ignoring it.

              1. You can’t blame Trump — it was the Dem and RINO Governors who did it.

        3. Now I’m not commenting on those posting them nor their motives, only the content of the postings themselves — what the hell was wrong with that?

          Why not? The people posting the fliers were very clear on their motive: it’s funny to see self-declared non-racists expose themselves as racist.

          You don’t even have to go that far. Show these people a conservative black man and their racist true colors come out.

          1. “You don’t even have to go that far. Show these people a conservative black man and their racist true colors come out.”

            Then Congressman Allan West gave the closing speech at mostly-White CPAC in 2010 and was wildly cheered. I was there.

            https://www.huffpost.com/entry/allen-west-cpac-speech-_n_822423

            1. And I still don’t see why “It’s OK to be White” is any more racist than “Black is Beautiful.”

      2. The Reverend is an algorithm that spits out the exacts same phrases and policy prescriptions as a Freshman sociology major at Oberlin.

      3. “Or are you a white male yourself, and knowing that *your* opinions are worthless, conclude that the opinions of *all* white males must be worthless as well?”

        Actually, I’m pretty sure that YOU are a white male, and as you insist on making a public idiot of yourself, you aren’t doing the rest of us any favors.

    2. How many people are inclined to turn to a white, male, conservative blog for pointers on modern discussions of race-related issues?

      Ah, the argument ad hominem. The classic refuge of someone with nothing to say of substance.

      1. Prof. Volokh’s position on this issue is somewhat tone-deaf. If one is going to use racial slurs with uncommon frequency and offer tone-deaf pointers on racial issues, it might be worthwhile to recognize that publishing that advice at a remarkably white, strikingly male blog is going to be perceived by modern, reasoning, mainstream Americans as a very bad look.

        I also note that mentioning the white, male nature of a blog that often promotes Heterodox Academy — pushing affirmative action for conservative professors at strong schools — seems reasonable and worthwhile.

        Clingers are free to disagree.

        1. To paraphrase Shakespeare, your post is a “a tale / Told by an idiot, full of sound and fury, / Signifying nothing.”

          Ad hominem indeed.

  3. The judge could have used air-quotes when he said the word, similarly to how EV wraps the word in quotation marks when he uses it. Everyone feels safer when a word-condom is used

  4. It seems like there’s a motte and bailey situation here.

    The bailey is the “snowflake” argument, the students are deeply hurt by even quoting the word and can’t fully function. If this were true, then it would be important to expose students to to word in class so they can deal with it in the future. But no one who claims this should be take seriously, it’s a bad faith argument.

    The motte is that quoting the word is unnecessary and unpleasant, that students have no problem dealing with the word if necessary in Preguerson’s courtroom, but would simply rather not hear it in class.

    Whether or not professors should accommodate student’s preferences about the word “nigger” is a judgment call about how effective he can teach while bowdlerizing the material, whether the request is reasonable or offensive, etc.

    1. I think that’s missing the point that the law school classroom is the place to prepare students for their eventual participation in legal proceedings in the courtroom. You assume that students “have no problem dealing with the word if necessary in Preguerson’s courtroom, but would simply rather not hear it in class.” The contrary argument, of course, is that the classroom is the venue for ensuring that students would have no problem hearing such things in court. Almost as if, I don’t know, law school is training for lawyers.

      1. A classroom is not a courtroom. A courtroom is a tyranny run by the judge, where even though the general public is paying for it, none of them has a specific bill for it. Whereas in a classroom, there are paying customers. It’s poor business practice to ignore what your customers want.

        1. Whereas in a classroom, there are paying customers.

          Which must mean that scholarship students are more like guests, not customers.

          1. Not really. Non-scholarship students are using someone else’s money, too. Either way, they have a choice of being somewhere else, and you don’t want to push them into pulling that trigger.

    2. Thanks for including the term “motte and bailey” here. I’d never heard it before, and did a quick Google. It’s a really useful phrase and one I’ll make a point of remembering.

  5. Professor Volokh, I think you are missing the importance of this line: “”I’m a true believer that we should close the borders to keep motherfuckers like you from coming up here and killing our elk.”

    As I understand it, racial discrimination is prohibited while cultural discrimination is not. While it would be illegal to discriminate on the basis of the person’s race, it would NOT be illegal to discriminate against him because he was born in another state. (NB: It says *country* of origin.)

    Hence it would be perfectly legal to discriminate against this guy because he was (presumably) born in California but not because he was Black, and thus it would be a defense against the former to prove that they were doing the latter. That a similarly-situated White guy from LA would be treated just as badly. And having personally dealt with some of these entitled inbreds, I suspect that is true.

    Hence the necessity of accurately quoting the racial slurs to prove that race was the motivating factor as “motherfucker” is a racially neutral term, and the price of sensitivity being the inability to prove racism. THAT is something that I suggest the social justice activists think about for a bit…

    Now the problem is that the nondiscrimination laws presumed that everyone was a local, that both Black & White employees had born in the same (segregated) state and that the only distinction between them was racial. Never anticipated were impoverished rural areas seeking to restrict jobs to locals to the exclusion of ALL outsiders, regardless of race.

    1. I read the quote as the speaker saying that the border should be closed so that people who have sexual relations with mothers cannot crossover and hunt elk.

      Could you please provide a legal analysis on whether a person can discriminate against those who have sex with mothers as opposed to those who do not have sex with mothers.

      Thanks.

      1. From Wikipedia, because I don’t think the question deserves anything more:

        “Motherfucker (sometimes abbreviated as mofo, mf, or mf’er) is an English-language vulgarism. While the word is usually considered highly offensive, it is rarely used in the literal sense of one who engages in sexual activity with another person’s mother, or his or her own mother. Rather, it refers to a mean, despicable, or vicious person, or any particularly difficult or frustrating situation. Alternatively, it can be a term of admiration, as in the term badass motherfucker, meaning a fearless and confident person. “

      2. “Could you please provide a legal analysis on whether a person can discriminate against those who have sex with mothers as opposed to those who do not have sex with mothers.”

        Sounds like discrimination based on sex. You’d have to know if there’s any comment about having sex with fathers to fully lock that argument down.

        1. And it probably would be relevant if there were a conviction for incest or not, but I digress…

            1. Sorry, this reply was posted under the wrong comment.

  6. Eugene, you’re arguing against a strawman/false dichotomy here, and drawing at least two unmerited and unsupported inferences.

    First, avoiding the use of racial epithets in the classroom is not necessarily about protecting students from some putative mental anguish caused by merely hearing those words. It’s about conveying to those students a message about their relevance in the power dynamic – who decides what’s “acceptable”? Is it the professor, without regard to any student’s interests or any administrative dictate? Or is it the professor, along with the students and the administration, who each participate in the discourse in roles appropriate to each? At its root, “political correctness,” from the perspective of people who advocate for it, is less about banning words or dictating rhetoric than it is about ensuring that historically excluded voices at least have a say.

    Second, it is a mistake to infer from how lawyers/clerks would apprehend the use of racial epithets, in the courtroom when describing a factual record, to how students in a classroom should apprehend the same epithets, when used by a professor, similarly describing a set of facts. This stems from my initial observation that it’s less about words than dynamics. In a courtroom, the judge clearly has most of the power, and the agreed-upon facts, as you say, are the facts. So it is pointless, as a clerk or observer or lawyer, to “take offense.” That said, even there, we can think of instances that in some fundamental way might cross the line; imagine a judge directing a reluctant lawyer to use the racial epithet rather than a euphemism. In addition, it’s not beyond the realm of imagination that an advocate would find the open use of racial epithets to be prejudicial to his or her client, before a jury, and might have a perfectly legitimate argument that euphemisms should be used. While it would be ridiculous for them to file a motion to protect their own feelings, there may be limits to the “tough skin” principle.

    But a classroom is unlike the courtroom in this way. Professors aren’t really “judges,” and “the facts” are less points on which legal liability might turn, but hypothetical stipulations raised for discussion. That is to say, professors aren’t entitled to dictate to students the terms of the discourse, and nothing of moment particularly turns on whether the professor uses the racial epithet or the euphemism to describe the facts of some case under consideration.

    Third, it is a mistake to suggest that law students are in some sense “ill-served” if they are not exposed to racial epithets in law school, given that they’ll need “tough skins” later on. Setting aside that this will be a relevant consideration for hardly any law students at all – I certainly need a tough skin, as a lawyer, but it’s not due to hearing racial epithets being described in an unvarnished way, and I doubt that many lawyers will find themselves in court deciding whether to use the racial epithet or not – I think most law students will adapt just fine even if they have relatively “sheltered” law school experiences. Law students are not mushy, unformed masses that need to be toughened up for the practice of law. They come to the environment with a bit of common sense and, hopefully, the ability to rationally apprehend the environment they’re in.

    In my own law school, a high-prestige professor was barred from teaching criminal law after he had said some particularly insensitive things about rape. I ended up taking criminal law from someone else, and I can’t say that I suffered for it, or found myself any less well-equipped for thinking through issues of criminal law now.

    Setting all that aside, though – the more important point, I’d think, for a professor to consider, is not whether some rational argument can be adduced to justify his decision to continue using racial epithets in the classroom, as he alone deems fit. It is whether you want to become known, among your students, as that professor, like my prestigious-but-not-criminal-law professor. The one who is so contemptuous of certain alternative points of view that he deliberately chooses to needle the sensitivities of his students – whose sensitivities he openly acknowledges and dismisses – but who may be obligated to take the courses he teaches or have no alternative options at the law school to learn the same material.

    If you want to be the First Amendment law professor at UCLA who doesn’t kowtow to passing fads of “woke” culture, I am sure you’ll earn at least some appreciation and a fanbase with some of your students. You’ll also be fondly forgotten by some of your others. My “prestigious” would-be criminal law professor has gone on to put his foot into his mouth on a number of occasions, and I am as amused, nowadays, by mocking him, as I am by telling others what he was like, as a professor.

    1. “First, avoiding the use of racial epithets in the classroom is not necessarily about protecting students from some putative mental anguish caused by merely hearing those words.”

      That’s certainly true, but this is what the dean and some other students are claiming.

      “Or is it the professor, along with the students and the administration, who each participate in the discourse in roles appropriate to each?”

      According to the principles of Academic Freedom, it is largely the professor, doing what he thinks is best for his students’ education.

      1. That’s certainly true, but this is what the dean and some other students are claiming.

        I gather that there is some controversy that Eugene is involved in, of which I’m not fully aware. Since Eugene’s post here doesn’t make reference to it, I’m assuming for present purposes that he’s not intending to refer to it.

        According to the principles of Academic Freedom, it is largely the professor, doing what he thinks is best for his students’ education.

        I don’t know to which “principles of [a]cademic [f]reedom” you think you’re referring, but the discourse on this subject is generally more nuanced than this. Most responsible commentators on the subject would acknowledge both a wide range of freedom but also a certain institutional responsibility that professors should observe.

        1. ” I don’t know to which “principles of [a]cademic [f]reedom” you think you’re referring, but the discourse on this subject is generally more nuanced than this. Most responsible commentators on the subject would acknowledge both a wide range of freedom but also a certain institutional responsibility that professors should observe.

          You might want to look at what started “academic freedom.”

          The short version is that Mrs. Stanford didn’t like the fact that a Stanford Econ Professor was saying (correctly) that her late husband had exploited Chinese laborers in building his railroad.

          Then and now, it’s power versus truth.

        2. “I gather that there is some controversy that Eugene is involved in, of which I’m not fully aware. Since Eugene’s post here doesn’t make reference to it, I’m assuming for present purposes that he’s not intending to refer to it.”

          It’s evident that you haven’t been keeping up with your VC reading:

          https://reason.com/2020/04/14/ucla-law-dean-apologizes-for-my-having-accurately-quoted-the-word-nigger-in-discussing-a-case/

      2. “‘First, avoiding the use of racial epithets in the classroom is not necessarily about protecting students from some putative mental anguish caused by merely hearing those words.’
        That’s certainly true, but this is what the dean and some other students are claiming.
        If you know or have reason to believe that a certain choice of words will offend some people, you don’t get to use those words and then act surprised that some people were offended by that choice of words. If you choose to do something (anything) then word will spread among the students and would-be students that you’re the type of person who makes whatever choice it is you’re making.
        If the shoe fits, wear it.
        If the message you want to convey is “you guys are grownups, and thus you either are or should be able to hear certain words that are otherwise considered offensive, without being offended by them” you’d better be laying the groundwork for that long before the first offensive word(s) come out of your mouth.

    2. This wall of text is nothing but a predictable attempt at gaslighting/ downplaying what the students who went after EV’s real intentions are.

      “ensuring that historically excluded voices at least have a say”
      These voices are allowed to have a say. In fact every college administration bends over backwards to please them in order to avoid baseless accusations of bigotry. These voices so often realize the incentives here and will offer very restrictive prescriptions in order to accrue power and vindictively punish those who roam off the pasture. Their voices should be heard though their advices not necessarily heeded when it is absurd and unpalatable (as it so often is)

      “professors aren’t entitled to dictate to students the terms of the discourse,”
      But students are entitled to dictate the terms to the professors, so long as their skin is of the correct hue.

      “They come to the environment with a bit of common sense and, hopefully, the ability to rationally apprehend the environment they’re in.”
      Not really. Just like undergrads a lot of law students are completely unhinged and they do throw temper tantrums when confronted by something mildly upsetting (which can be as mild as an alternative point of view)

      “as that professor, like my prestigious-but-not-criminal-law professor. The one who is so contemptuous of certain alternative points of view that he deliberately chooses to needle the sensitivities of his students”

      When the views at issue are so asinine and the sensibilities so easily affronted (and strategically affronted, in a way that allows mediocre people to accrue power and influence via others’ guilt and meek sufferance) being known as the professor who disregards them is eminently respectable, even noble.

      Your post was basically just an incredibly tedious motte-and-bailey: a deceptive defense of the woke position (which is really about power grabbing and ultimately bringing social and ultimately criminal sanctions on those they oppose).

      1. “really about power grabbing and ultimately bringing social and ultimately criminal sanctions on those they oppose”

        I don’t think they even deserve that much credit.

        It isn’t even those whom they oppose as much as those who are in their way — it’s really all about bare, naked, power and the ability to destroy anyone who doesn’t flee from them in terror. They are bullies, nothing more.

      2. This wall of text is nothing but a predictable attempt at gaslighting/ downplaying what the students who went after EV’s real intentions are.

        And your response was nothing more than a predictable attempt to re-assert, without support, the veracity of various strawmen. I don’t see the need to respond to them each.

      3. “But students are entitled to dictate the terms to the professors, so long as their skin is of the correct hue. ”

        Students are paying to be there. Profs are paid to be there. Therein lies the difference.

    3. But a classroom is unlike the courtroom in this way. Professors aren’t really “judges,” and “the facts” are less points on which legal liability might turn, but hypothetical stipulations raised for discussion.

      According to Prof. Volokh (whose veracity on this point I have no reason to question), he uses the word when discussing real cases where real people really said it, not in hypotheticals.

      1. According to Prof. Volokh (whose veracity on this point I have no reason to question), he uses the word when discussing real cases where real people really said it, not in hypotheticals.

        I appreciate that the cases he might be discussing trace back to real cases. What I am saying is that, for purposes of the class discussion, they are really just stipulated hypotheticals, and nothing of particular importance stems from the words used to describe them. You don’t study the cases because someone’s legal liability turns on the precise facts, or because you’re learning those cases’ history. You’re instead examining some legal principle that the case helps to demonstrate.

        1. “According to Prof. Volokh (whose veracity on this point I have no reason to question), he uses the word when discussing real cases where real people really said it, not in hypotheticals.”

          https://reason.com/2020/04/16/race-based-speech-restrictions/#comment-8214956 :

          “Well, I would certainly not wear a swastika on my armband, for many reasons! But then again I wouldn’t actually call someone a “nigger,” either (or lots of other words).”

          1. I realize that schools are experimenting with new pedagogical techniques to address the current circumstances, but I had no idea that this blog was Prof. Volokh’s classroom.

            1. It is (de facto) an extension of it.

        2. “According to Prof. Volokh (whose veracity on this point I have no reason to question), he uses the word when discussing real cases where real people really said it, not in hypotheticals.”

          https://reason.com/2020/04/16/race-based-speech-restrictions/#comment-8214199 :

          “Sometimes, when people ask me not to quote “nigger,” they stress just what a small thing it is — just this one word, and sometimes they even say that there’s no problem with having it be written down (whether in the casebook I wrote or perhaps in other readings); it’s only saying it orally that’s the problem. Just one word!”

        3. “What I am saying is that, for purposes of the class discussion, they are really just stipulated hypotheticals, and nothing of particular importance stems from the words used to describe them.”

          Contrary to what the Critical Legal Theory folk might want to think, they are NOT hypotheticals. Instead, they are actually something called precedents — where the facts are very much relevant because you are going to argue that your facts are the same.

          Imagine trying to discuss _Roe_ (or better, _Griswald_) as hypotheticals. Yes, it’s kinda relevant that _Griswald_ involved *married* women — something known as a “fact” in what is known as a “precedent” — not a hypothetical.

          1. Contrary to what the Critical Legal Theory folk might want to think…

            This seems like a strange place to gripe about CLT.

            Anyway, it is nonsensical to speak of “precedents” in the law school context. These are cases, published opinions, etc. Their role, in the law school context, is not to lay out “precedents” that guide future lawmaking, but to provide examples of legal principles for purposes of discussion. It is true that most of them are real-life examples. But nothing about their usefulness or validity in the law school context meaningfully turns on their connection to the real world.

            You could rewrite every casebook used in law school so that every party name is replaced with [Party A], [Party B], or similar labels. What would you lose? Apart from some difficulty with nomenclature (e.g., you’d have to find another way to refer to the “Chevron doctrine,” etc.), the truth is, not very much. So what’s the objection to using euphemisms for racial epithets, when discussing cases?

            1. I don’t think that’s true at all, and is a great example of a huge problem in legal academia. You guys think you are teaching future law professors, when in fact it is a trade school.

              I learned PLENTY of black letter law in law school. Because I cared about my future career, even if my professors didn’t (unless you paid them blackmail money to take their bar review courses).

              1. Meanwhile, in the real world, you can learn all the actual law you need to know to pass the bar exam in a matter of weeks, from Barbri. My law school reacted with concern when I let them learn of my intention to sit a bar exam with no prep class. Pass or not on first attempt is one of the statistics that gets reported to ABA around accreditation time. I passed, but wasn’t sure I passed until they published results. I didn’t take classes in wills & estates or criminal law, and got essay questions on both in the actual live exam.

                1. You can also learn a lot of it from law school and save the money on Barbri (as I did).

                  1. The point being that if they’d let you, you could learn all of it in Barbri and save a LOT more money on law school.

              2. Agree with Dilan. The facts of the case are critically important to understanding not only that case but the development of the law over several cases. It’s not the name (yes, Smith v. Jones could be renamed Herrera v. Gonzales), but what happened and the factual details that are often important.

                1. I knew someone who got into law school and didn’t realize for a few months that the cases used the real names of the parties. She graduated.

                  1. A law professor I know told me about a student who, when reading some cases from England, expressed amazement as to how litigious this guy Rex was.

                    1. That Regina lady is no slouch.

    4. Yes, indeed, it is about power dynamics, and I’m not sure the good Professor has given this aspect the consideration it deserves. He’s focused on defending his specific teaching decision, rather than focusing on the fact that his students are running around calling him racist for a defensible, non-racist decision about how to instruct his students. [I’m assuming that in your example, the rape professor said something *genuinely* offensive, not simply that alleged rapists are entitled to the presumption of innocence or some such.]

      So long as the professor sticks to his subject, doesn’t wander off into unrelated jokes and anecdotes, and makes reasonable judgment calls about how to present the material, then he shouldn’t be giving grovelling apologies just because his students start throwing accusations at him.

      As for how a professor wants to be known, presumably a professor should want to be known as that teacher who doesn’t cringe and ritualistically apologize to the loudest, and not necessarily the most-informed, students when they call him names. If a professor wants to be known as the pushover who can be bullied into conformity, then OK, maybe that will get him a good reputation and maybe it won’t.

      I have a suspicion that some of these law students who feel free to indignantly abuse their professors will sing a different tune once they start dealing with actual bosses and judges. It will be all “sir,” and “Your Honor,” and “yes, sir, that joke was hilarious!”

      1. He’s focused on defending his specific teaching decision, rather than focusing on the fact that his students are running around calling him racist for a defensible, non-racist decision about how to instruct his students.

        I don’t know what his students are saying about him, and it doesn’t seem to matter for purposes of this post. But I would say that, certainly, it might be within the scope of fair criticism for his students to point out that Eugene is obstinately indifferent to the objections his students may have to the use of racial epithets in class.

        As for how a professor wants to be known, presumably a professor should want to be known as that teacher who doesn’t cringe and ritualistically apologize to the loudest, and not necessarily the most-informed, students when they call him names.

        As I said, there is a certain audience who would find Eugene’s approach admirable. Personally, I find Eugene’s use of the racial epithet less problematic than his indignant intransigence in response to the criticism. If I were still a law student, he doesn’t seem like a law professor who would be open to challenges to his theories or worldview, or who would be capable of taking a step back from his analytical frameworks in order to defend them on their own terms. It can be very frustrating, being “trapped” with a law professor like that – it killed my academic interest in the law, for instance.

        1. “Personally, I find Eugene’s use of the racial epithet less problematic than his indignant intransigence in response to the criticism.”

          Myself, I don’t necessarily like his use of the actual word, but I find nothing problematic about his sticking to his views after being attacked. The alternative is to let the loudest students dictate how they get taught.

          Yes, some people are calling him a racist –

          https://abovethelaw.com/2020/04/ucla-law-school-calls-for-tolerance-so-obviously-professor-blows-that-up-with-childish-racist-tirade/

          …and if he apologizes or retracts at this stage, it will be interpreted to mean he basically admitted being a racist.

          1. Now, I was making a bit of a leap in assuming that the students were saying the same kind of stuff as the Above the Law blog – which may be unfair to the students, maybe they’re simply talking about “insensitivity” or the like.

          2. Myself, I don’t necessarily like his use of the actual word, but I find nothing problematic about his sticking to his views after being attacked.

            There’s a way to do it. As an attorney without the benefit of the First Amendment and principles of academic freedom to protect me, I frequently find myself in the position of sticking to views in diplomatic ways, intended to preserve good-feeling among the various counterparties and colleagues with which I will have to interact, time and again. I would go so far to say that successfully navigating agree-to-disagree moments is an essential advocacy skill that Eugene has chosen not to employ here, for whatever reason.

            1. If I may say so, you seem to be talking about relations among equals. Professors and students are not equals. They can be friends, but respect comes first.

              Professors get to do a lot of talking which members of other professions don’t get to do. In fact, the same remark may be useful for one job but totally out of place in another job. So for example, an Amazon warehouse worker presumably can’t say in the break room the kind of stuff which tenured professors – especially First Amendment experts – say routinely.

              There was even a case – I won’t look it up now – where a college janitor got in trouble because he was reading an anti-Ku-Klux-Klan book, simply because there was a photo on a Klansman on the cover. I think it was a public college so he got to defend his rights, but at a private company, for instance, he would have been well advised just to put his book away and apologize for the offense he caused. Yet a tenured professor who apologized for reading a book about the Klan would, in contrast, be rightly seen as too compliant and submissive.

              1. If I may say so, you seem to be talking about relations among equals. Professors and students are not equals. They can be friends, but respect comes first.

                No, I am not necessarily talking about “relations among equals.” I am talking about relations with partners senior to myself, associates junior, counterparty counsel with more or less leverage on a deal, or more or less professional recognition, etc. I am also talking about managing situations where I may or may not have power, but my client does or doesn’t, as well as situations where I have to shape client expectations (even though they call the shots).

                The skill I’m trying to describe isn’t blind to the fact that people in a relationship may have different kinds, or amounts, of power. Certainly a law school professor staking out a position that his colleagues and students view as “controversial” will have the upper hand, at least, when making the final decision as to what he teaches in his own classes. But that doesn’t mean that it’s imprudent or impossible to handle that “controversy” in a way that might tend to better encourage understanding and agreement by others who lack that final decision power.

                As for professors vis-a-vis their students – I reject your characterization, especially in the law school context. People come to law school as adults, often with real work experience after their own undergraduate careers. It is a professional school where people come to learn a trade; the only ones obliged to treat it as a place to pay obeisance to the “learned elders” are those seeking a path to its vaunted halls themselves. Law students are, in my view, every bit entitled to view themselves as their professors’ “equals,” save when it comes to the actual knowledge of the subject itself. “Respect comes first” only when you’re immature, and teaching children.

                1. “. People come to law school as adults, often with real work experience after their own undergraduate careers.

                  So what? They still have zero expertise on law school pedagogy, which means they might benefit from letting the people who actually know something about the subject run the classes.

                  1. I taught at the college level for almost a decade before I started law school. I was doing it full-time through my 1L year.

                    1. That’s pretty rare. (And at any rate, you didn’t teach law.)

                2. “Certainly a law school professor staking out a position that his colleagues and students view as “controversial” will have the upper hand, at least, when making the final decision as to what he teaches in his own classes.”

                  Not so certain. The dean directs the teaching of classes, including in “controversial” topics. And accrediting bodies have a say in the “how and why” classes are taught. The prof’s authority is strong, but not absolute.

              2. ” Professors and students are not equals. They can be friends, but respect comes first.”

                Respect is earned.

      2. “his students are running around calling him racist for a defensible, non-racist decision about how to instruct his students.”

        Are they? Or are they accusing him of using racist language in class?

        1. Of course the students are accusing him of using racist language. His defense, which I find persuasive, is the language viewed in its context is not racist.

          1. The language is absolutely racist. What you mean to argue is that using racist language, depending on context, doesn’t establish that the person who used it is racist. Which is true, unlike your claim.

            1. I disagree. Context determines whether the language is racist.

    5. “Or is it the professor, along with the students and the administration, who each participate in the discourse in roles appropriate to each?”

      Is this really how the process ends-up working out though? If a class has 100 students and five of them openly express that they do not want certain words said in class, then what about the views of the other 95 students? If the five students prevail, then they have become the de facto power structure, imposing their will on the entire class.

      Perhaps the decision could be made democratically, where the outcome is determined by a majority vote of the students. However, if the word in question involves the issue of race, then I imagine a new problem arises; which students are allowed to express a view about the word being used. Maybe hold a vote on that question (although I don’t know who gets to vote now)?

      Someone, or some group, is going to end up being the de facto power structure. Given people’s natural desire to dominate each other, the only question is really who will ultimately prevail on this topic.

      1. In most real-life classrooms, professors and students are able to discuss issues and concerns with one another. The professor needs to make some decisions about how he or she conducts the class or how material is to be presented, but it doesn’t mean that the professor’s will must “dominate” the classroom’s, or else the classroom’s will will “dominate” the professor’s.

        You clutch at your pearls over five students controlling the use of certain words in class, but we could just as easily be talking about five students who don’t learn well with classic “socratic method” teaching or who are “triggered” by explicit discussions of sexual assault or domestic violence or have disabilities that make large reading assignments difficult to keep up with, and so on. It would be perfectly reasonable, and by no means absurd, for the professor to adjust lesson plans or teaching styles accordingly. Carefully negotiating the usage of racial epithets in class doesn’t seem that much different.

        1. It hurt my feelings when you said I clutched at my pearls. I’m pretty sure that’s sexist, and possibly homophobic. I’d have to get an official ruling from Bernstein, but it may also be anti-semitic.

          On one hand you try to come across like you care, and are sensitive to the feelings and opinions of others. But on the other hand, you can’t help taking that personal jab at another person on the internet, an act that makes us feel so good about ourselves.

          I give it a 3/10

        2. If students have disabilities that make large reading assignments impossible, the legal education system is stealing their money, because they aren’t going to find work as lawyers for long.

          1. Only 50% of law-school graduates work as practicing lawyers.

            1. Sure. The ones who can’t handle having their feelings hurt work as baristas.

            2. That doesn’t prove what you think.

              Or to put it another way- I bet only a small percentage of film school grads work in Hollywood- that doesn’t mean they weren’t seeking to.

            3. And I suspect the other 50% are dodging the student loan repayment folk.

          2. Dilan, some lawyers become life-long legal aid attorneys. They have careers. They serve the needs of clients. They live where they want. The do stuff society really needs done. And they can retire very comfortably. They don’t don’t have to cope with many “large reading assignments.”

            1. I worked for Public Counsel while I was in law school I certainly did have large reading assignments, including all sorts of government benefit forms and rules and regulations, and yes, cases, which still matter even in legal aid.

              It would be legal malpractice, and a huge injustice to a client, if a legal aid lawyer were unable to read a long, fine-print lease form.

    6. “a high-prestige professor was barred from teaching criminal law after he had said some particularly insensitive things about rape”

      And then we wonder why truly innocent men (e.g. Duke Lacrosse Team) wind up in the situations they do…..

      1. “And then we wonder why truly innocent men (e.g. Duke Lacrosse Team)”

        And then we wonder how truly innocent those particular men really were. They were not guilty of the charged crimes, which is not at all the same thing as being innocent.

        1. “And then we wonder how truly innocent those particular men really were. They were not guilty of the charged crimes, which is not at all the same thing as being innocent.”

          Whiskey Tango Foxtrot?!?

          1. “Innocent” mean free of wrongdoing. Being not guilty of one thing does not establish that someone is not guilty of anything. There’s a reason that the choices offered to juries are not “guilty” or “innocent”. The defense doesn’t have to establish innocence to win a trial.

        2. “And then we wonder how truly innocent those particular men really were. They were not guilty of the charged crimes, which is not at all the same thing as being innocent.”

          Yeah, that’s why it’s a good idea to smack your wife occasionally. Even if you don’t know why, she will.

          1. How long have you been beating your wife?

    7. In my own law school, a high-prestige professor was barred from teaching criminal law after he had said some particularly insensitive things about rape

      You don;t see a distinction between saying insensitive things about rape and reciting verbatim quotes?

      1. Yeah. And actually the rape stuff shows where this is going. Jeannie Suk, a very highly respected law professor, says the PC students make rape law much harder to teach.

        I can very much live without the n-word in the classroom, though Prof. Volokh’s choice is defensible too. But this doesn’t stop there.

        1. Do you similarly defend the readily avoidable and repeated use of that word at this blog?

          1. As I say below, I think using it all the time in the posts about this issue is unnecessary.

              1. Are you suggesting the proprietor repeatedly uses that word — in class, at this blog, and perhaps elsewhere — for enjoyment?

                I strongly doubt it, but you might have better insight concerning a conservative’s thinking than I do.

                I would like to hear what Prof. Volokh’s students think about this, but they may all be out buying their “Free Artie Ray Lee Wayne Jim-Bob Kirkland” t-shirts and hats to be ready when in-classroom studies resume.

    8. “Or is it the professor, along with the students and the administration, who each participate in the discourse in roles appropriate to each?”

      I agree that administration has a role, and can even develop guidelines for proper language and respect for students.

      But students qua students should get no say whatsoever. What exactly gave them any training in pedagogy? They are there to learn, not to run the school.

      1. “But students qua students should get no say whatsoever.”

        Their money talks.

          1. Doesn’t change the fact that it does.

    9. “At its root, “political correctness,” from the perspective of people who advocate for it, is less about banning words or dictating rhetoric than it is about ensuring that historically excluded voices at least have a say.”

      This is a lie. It is about dictating rhetoric.

      Otherwise a PC advocate would sometimes accept having his or her say, being heard out, and then having their demands rejected. They never do.

    10. That is to say, professors aren’t entitled to dictate to students the terms of the discourse

      I think disabusing students of that notion itself is an important part of their education.

  7. I recall reading an oral history type book on policing – perhaps ‘What Cops Know’ by Connie Fletcher. One of the chapters asked cops to recount the most disturbing things they had encountered. That was not a good chapter to read before bed. One of the middle of the road ones was, for example, the 4 year old boy who contracted oral gonorrhea from his stepfather; there were ones quite a bit worse than that.

    I presume most of those ended up being recounted in clinical detail in courtrooms, and I expect the experience was extremely distasteful for all involved – but that comes with the job. When you seek a career as a doctor, nurse, cop, fireman, soldier, or lawyer, that’s part of the deal.

    In the previous thread I mentioned I was once a juror in a murder trial. We got to spend quality time with the crime scene photos, we got a nice education on establishing time of death by stages of decomposition, and so on. Jurors, of course, aren’t there voluntarily. Life sometimes has sharp edges, and you can’t always make it a ‘safe space’.

    1. Baby in microwave oven comes to mind…

    2. “I was once a juror in a murder trial”
      I was once a juror in a defective-workmanship case involving the application of adobe exterior finish to a house in Oregon. As a result I now know way more than I ever would have thought I needed to have about adobe building exteriors, and yes, it is fully as boring as it sounds like it would be.

  8. Facts are complicated, eh?

  9. I don’t ever want to hear anything about “white fragility” from those who say that “nigger” can’t be said in appropriate contexts like in the OP because it is to hurtful.

    1. Isn’t it kind of fragile to go on extended diatribes about why you should be able to use the n word, instead of just not doing that?

      1. When is one sentence an “extended diatribe”?

        And I’m making a point about hypocrisy and double standards…which I presume you missed.

        If blacks can’t take hearing the word “nigger” quoted at them from what appears to be an employment discrimination lawsuit because it’s so hurtful, I hope those same folks never say that whites are “fragile” because some don’t like being racially insulted either.

        1. I mean this post. The other post about it. Every tweet and comment about this topic out there in the world. It’s like people are actually offended that they can’t say the n-word generally without consequences. That’s really fragile. I don’t really care if I “can’t” say the n word. I’m secure enough in my position in society that it’s not some great transgression on my ability to function. Conversely, the N-word itself has a historical context that clearly isn’t easy to understand for some people. It’s not just an insult, it’s a symbol of dehumanization and subjugation that represent very real repression that happened in living memory. As a white man, there is no word anyone can call me that will conjure that feeling up.

          1. You can say the word all you want as long as you don’t mind being known as someone who uses the word. The real problem is the people who want to say the word without being criticized in any way because of their choice.

          2. It’s like people are actually offended that they can’t say the n-word generally without consequences.

            The offense here is not about use of the word, it is about the complete lack of context. Quoting a published court decision that uses that word is simply not the same thing as using it to insult someone to his face. The conflating of the two is offensive because it dumbs down public discourse.

            1. The offense here is not accommodating the fact that some people find any use of the word offensive, whether using it to intentionally attack someone or just quoting someone else using it to attack someone. In this respect, it’s not unlike any of George Carlin’s “words you can’t say on TV”

              1. Carlin thought it wrong to accommodate those who were offended. Perhaps, the same should apply to Eugene?

                1. Recorded experience involving the term “sl@ck-j@w” seems to rule that one out.

                2. Carlin is also rather dead. Perhaps better not to follow his lead unquestioningly. Carlin also went to considerable effort to prepare his audience before he started reading off his list.

  10. You’re absolutely right, EV.

    But I wonder how often people who work in courts, or in law offices, have had to defend “hostile environment harassment” complaints as a result of saying words like that one out loud as part of their jobs. We know it happens at universities.

  11. I wasn’t impressed with the attorney — she ought to have been prepared to cite the racial demographics of the county and state, as well as *know* how many Black employees the company had hired.

  12. Most black people are not going to faint if they hear that word. There are plenty of people who use it casually.

    The people who are offended by the use of the word are the sheltered (usually wealthy) white liberals.

  13. I agree.

  14. Prof. Volokh: Sometimes, even when you have the right to do something, if the consequence of doing that thing weighs on your conscience to the point that, as Queen Gertrude said, “The lady doth protest too much, methinks,” perhaps you should either stop defending yourself, or stop doing what you have every right to do because when you do it, you then feel the need to defend yourself for doing it, to the point of excess, methinks. (This is your third related post in 6 days.)

    1. His mistake is in defending his decision on its own merits rather than simply point out it was a perfectly rational and non-racist pedagogical decision and that the Woke Brigade is way out of line here. Just as he could rationally use the word in proper context, he could rationally choose not to use it and there would be no harm – unless of course he retreats under fire and awards the Woke Brigade a victory.

      We’ve seen the kinds of things the Woke Brigade get indignant about and the kind of demands they push. They do it because they frequently get rewarded by the granting of their demands, which encourages more demands, of course. So if we’re generally in agreement with the demands they make and the way they go about enforcing these demands, then by all means give in to them.

      1. Yeah, the most problematic thing Prof. Volokh is doing is using it in casual speech and on the blog. Using it as part of the statement of facts in the classroom is far more defensible (though as Prof. Volokh admits, it is also OK to euphamize).

        1. Hmmm…the problem is, if we accept that his classroom behavior is OK, shouldn’t he be able to defend himself on his blog once people say his classroom behavior is awful and racist? And if he can defend himself online, if he says, quote, “n-word,” unquote, instead of the actual word, then he’ll be seen as admitting he shouldn’t have been using the word in class if he can’t even use it on h is blog.

          1. You can see it that way.

            But you can also see it in this way: that in the cases, the shock of the word is part of the point. If you are arguing about whether the use of the word provided an excuse or partial defense for an assault charge, for instance, or constituted “fighting words”, saying the word may be extremely important to making that point.

            OTOH, here, there’s no such issue. There’s just a pretty academic debate about offensive language in the classroom. Little would be lost by not saying the word here.

            1. While a jarring impact is a sound distinction, another argument says any descriptive use ought to be permissible because context matters.

          2. ” shouldn’t he be able to defend himself on his blog once people say his classroom behavior is awful and racist?”

            I totally wasn’t being racist when I said those racist things!

            The best defense against being called out for saying racist things is to not say racist things. No matter how good your reason for saying racist things, saying racist things will cause some people to point out that you’re saying racist things.

  15. Professor Volokh,

    I think that the use of the word “nigger” in the context in which you describe using it is justified and even appropriate. Using “n-word” or some other euphemism has a tendency to sanitize or weaken the impact of such words with their original vile intent. How would we view George Wallace’s infamous statement with the required substitutions? “I got out-n-worded in that election. I’ll never get out-n-worded again.”

    That said I think your life is going to be much more difficult and unpleasant, at the least, if you persist. I don’t think you should apologize ever but maybe just quietly adopt the euphemism and move on. Consider the situations that have arisen when vocabulary-challenged people have heard someone using “niggardly” and become outraged. There have been a number of such incidents, some creating difficulty and distress for those using the word. It’s a perfectly good word whose derivation has nothing to do with the word “nigger” or anything to do with disparaging black people, but there are other words that do the job as well and maybe it has to quietly disappear.

    1. “That said I think your life is going to be much more difficult and unpleasant, at the least, if you persist.”

      In some ways, yes. In others, no. He’ll be applauded at Federalist Society, Heritage, CPAC, and Republican Party events. And even at UCLA he’ll have Prof. Bainbridge to sit next to him at faculty meetings.

      1. His life is going to get more difficult because that is exactly what the Left is going to do to him. Once the PC lynch mob gets its marching orders it won’t stop until you are ruined (or you are lucky enough to become a PC refugee who gets to live on a small island with all the others who are still able to make a living using their war against the mob as their “merit badge”).

        1. Ooh, the scary, scary left (sorry Left) is up to its usual tricks again being behind every single thing you object to or attacking whatever you hold dear.

          You poor victim, you.

  16. There are three obvious motions the defense should make:

    1. Motion to strike for placing scurrilous, scandalous material in the record.

    2. Motion for summary judgement due to complete lack of admissable (non-scurrilous) record evidence supporting plaintiff’s allegations.

    3. Motion for sanctions for wasting the court’s time filing scurrilous material and a lawsuit unsupported by admissable evidence.

    That’s clearly the outcome the students who complained, and the law school dean who supported the complaint, want, isn’t it? Better to lose a discrimination case than to permit such material to be aired.

  17. Thank God for quotation marks, or this post and the ensuing comments would read like an Alt-Right chatroom.

    To the true heroes protecting us all during these dangerous times: ” and “

  18. I think Eugene here is trying to explore this issue from an academic and intellectual sense. The problem is that there is nothing academic or intellectual about the argument that sometimes a word should be used by a certain subset of people and other times we have to refer to the core word with a euphemism.

    The ultimate reason why we are even talking about this is because the left is trying to control language, using it as a driver for their continued use of identity politics, and it is a useful tool for the “cancel culture” to use to get someone fired or “blacklisted” by society. The left will come up with a bunch of bogus intellectual sounding reasons for their position, but in the end it is all just about an exercise in power. The power to control thought and the power to ruin people’s lives who don’t follow in lockstep with their marching orders.

    1. Orwell wrote a book about that sort of thing…

      1. I was going through some old material from the early 90’s. Found a series of articles about a professor who was getting in trouble for using the word “cunt” in a classroom. She was basically getting the same treatment Eugene is getting now. The main difference was the faculty, almost unanimously, came to her defense. There was even an “open letter” signed by hundreds of members of the faculty. Reminded me that back in the day, freedom of speech, opposition to censorship, and even academic freedom were cherished freedoms by both the left and right. Not so much today.

        1. No. Not at all similar situations. That professor was getting in *actual* academic trouble. And, thank God, other faculty did rise to her defense. Here, Eugene is in no risk re his job. The UCLA dean (who was, IMO, weak and spineless) did make it clear that Eugene has an absolute right to use the language in question. What Eugene had to deal with was some blowback from some disgruntled students. I would be *shocked* if anything else happened. (In the late 80’s, my Con Law prof used the same term in class, to illustrate ‘fighting words’. Had the same reaction from a few students, and it was a minor issue for a week or two. Fortunately, no apology from the dean. Of course, this was before social media was ubiquitous, so maybe effects last longer nowadays.)

    2. “The ultimate reason why we are even talking about this is because the left is trying to control language, using it as a driver for their continued use of identity politics, and it is a useful tool for the “cancel culture” to use to get someone fired or “blacklisted” by society. The left will come up with a bunch of bogus intellectual sounding reasons for their position, but in the end it is all just about an exercise in power. The power to control thought and the power to ruin people’s lives who don’t follow in lockstep with their marching orders.

      You’re pissed off because they’ve stolen this move from the Right-wingers who used to be able to squash dissent by the simple expedient of labeling any criticism of them or their policies as “Communist” and then blacklisting the critics.
      “Are you now or have you ever been…” doesn’t work for your guys any more, and you want it back.

      1. The thing is, labeling someone a Communist and ruining their career because of some isolated or quirky incident was WRONG when right wingers did it.

        Why would you want to emulate that?

        1. Guess the same people think “we have never had a real communist form of government so why not try it out…” It is going to be different this time now that they have the power.

      2. These “right-wingers” you refer to were in power in what the 1950’s and 1960’s at the absolute latest? You do realize it is 2020, right?

        1. Jimmy, within one minute you say James is dealing with outmoded nonsense, and then endorese that exact thinking.

  19. Interesting issue on the operation of the semiotics of slurs.

    Shame about all the white supremacy stuff in the comments.

    1. “Shame about all the white supremacy stuff in the comments.”

      This is a pretty lame dogwhistle type alert to your fellow travelers even for you.

      1. Jimmy the Victim comes out with the savage blow.

        1. Leave him alone, he’s another highly put-upon white dude, and you know how they’re made to suffer in modern-day America. We just can’t seem to ever catch a break.

          1. I am not sure I was aware of the level of persecution straight, Christian, conservative white males must endure in America — or the apparent need and market for a support group for those afflicted — until I encountered the Volokh Conspiracy.

            1. Oh, the Christians are also highly persecuted in the United States… just ask them, and you’d think each and every one of them was nailed to a cross… and the conservatives are highly persecuted, because they have no voice in news media, unless you count the total domination of AM talk radio, and a certain cable channel that remains highly biased against conservatives every day of the week, except for the days that have a “Y” in them.
              But I can’t speak for them.
              But the poor, oppressed middle-aged caucasion male can’t catch a break in America, only about 90% of the Fortune 500 is run by middle-aged white dudes, and for a while there it looked like there might be a chance we could elect a President who isn’t an old white dude, although that risk appears to have passed for at least another 4 years. Oh, woe is us!

              1. James, that is a familiar argument. What it leaves out is how inappropriate it is to cite the experience of high-status white males to example situations oppressive to low-status white males.

                They live in different worlds. Rules and norms are not applied alike. While high-status white male Americans enjoy every advantage, and rule the nation at their pleasure, low-status white male Americans’ grievances continue justified. Sometimes—quite often—citing high-status privilege to admonish low-status experience is little better than taunting. I doubt that taunting was your intention, but that may not matter. (How to think about utterances intended one way, but received another is kind of the subject of this thread.)

                That is the way it has been in this nation for almost 50 years—the entire adult lifetime of almost all low-status males, save a few of the oldsters—who can remember when it was different, or at least remember when their personal futures seemed to hold more promise than ever got delivered.

                I suggest that when Trump-disdaining Americans (among whom I number myself) are baffled by his supporters’ impervious loyalty, the bafflement is largely owing to a failure to notice, or at least to honor, the crucial importance of that status distinction. Trump’s hard-core base will stay fanatically loyal at least until someone besides Trump starts addressing the status divide (never mind that Trump’s attention is lip service).

                Trump’s approval/disapproval numbers don’t move, because the issue behind them—the status issue—never gets discussed, and thus never changes. All the news is always about other stuff. To Trump’s supporters, the other issues—the myriad issues which cycle through the media and rivet the attention of anti-Trump America—are just distractions and irrelevancies, and will stay that way until low-status America’s emergency gets addressed. Which never seems to happen.

                Also, in deference to the subject of this thread, race is a complicating factor in all of it. That is always the way it is in America—race is a complicating factor in all of it. That part is a continuing bafflement to conservative America, as much of the tone deaf commentary in this thread has shown again.

                1. The people on this blog? High-status white guys. Still full of inchoate resentment and anger at liberals for oppressing them.

                  It’s not about a real status divide, it’s about a perceived status divide. And it’s not penetrable because their world isn’t penetrable. Look at what sources they post when they bother to, and which sources they ad hominem and then ignore.

                  1. Stephen makes a good point that you chose to ignore. Regardless of what you think may motivate the high status white guys on this blog there is nothing inchoate about the resentment felt by low status (mostly) whites and their anger is not confined to liberals. It’s anger at a ruling class that will outsource jobs and import low wage workers to replace them, all the while mocking their values and the way they live. Why do you think the Republican heir apparent in 2016, Jeb!, got so little traction? Do you think the “deplorables” line from Hillary had anything to do with her loss? It’s a class struggle but it has been complicated, as Stephen says, by racism which has so far has allowed the likes of Antoinette Pelosi to retain their client base.

                    1. Oh, there’s anger all around. But this blog’s commentariat is a counterexample to Lathrop’s thesis.

                      Furthermore, the fact that the fear and loathing at the plots of ‘elites’ (fomented by elites) is nearly identical amongst blue collar conservatives and the white collar people like those on this blog is deflates his entire class-based narrative.

                      Deplorables is a great example. Hillary said there were deplorable racists within Trump’s supporters. Trump’s supporters, so primed to be the oppressed victim, jumped on this as though it applied to them in particular. Not that Hillary wasn’t being reductive, but the reaction tells you what’s really up.

                      So do the blog comments on this thread, about how the Western White Man is oppressed despite being responsible for civilization, but also generous with it. Before you talk about economic anxiety, maybe look at what’s behind that narrative.

                    2. Sarcastro

                      There are plenty of reasons not to like liberals and especially liberal elites, but the fact that some or even most of those reasons overlap between high and low status groups doesn’t make them illusions. It is a class struggle regardless of whether some issues are more or less manufactured by various media.

                      I was one of the “elites” who eagerly accepted the replacement of white construction workers with Hispanic immigrants without giving it more than a passing thought. I found it easy to think that they didn’t work hard enough, that their work was sloppy and sub-standard. True maybe to one extent or the other but the fact remains that almost all of them lost their jobs.

                    3. I’m not saying they’re illusions, I’m saying whatever they are, they’re not the status concerns Lathrop posits, nor the economic ones you put forth.

                      Blaming Hispanic immigrants for white job losses may be economically true, but it is not economically supported.

  20. “…a highly respected liberal judge” What exactly, makes this even slightly relevant? Are only Liberal Judges worthy of respect? Or, is this to defuse potential argument? What if the Judge was only a fair to middlin Jurist?

  21. How can you even ask us to opine on this subject without knowing the racial background of the Judge? If he at least looked black enough, then this would mean no more than hearing the word 15 times in two verses of a song. If he didn’t then it would be so traumatizing that even the most hardened African-American litigators would need years of therapy. If they listened on an audiotape (or read a transcript) and could not infer the Judge’s race, then it would be a Schroedinger’s cat situation until they found out.

  22. Eugene,

    Since you recently blogged about an NM freedom of religion case, you might be interested in this one to carry on your investigation of New Mexico:
    https://www.leagle.com/decision/innmco20200408304

    It is about child porn, referred to as SECM. There was a filename on the computer in question titled “gayblackmanfucking13yearoldboy” that was referred to in the decision as “Black Gay Man”, for some reason. Looking further in the opinion it seems there were other cases of euphemism. I wonder if there was some spillover from the euphemism to the reversal of the conviction, since it turned on Defendant’s knowledge or lack thereof about the content of the files in question.

    1. Because more people are offended by seeing or hearing the word “fuck” than are people offended by racial slurs.

  23. How many commenters here really just want to be able to say the n word generally without any social pushback?

    1. Maybe you cold borrow Kirkland’s Helm of Telepathy and read everyone’s thoughts, then you’d know for sure.

      1. Just seems like a whole lot of passionate defense for the ability of one professor to do one thing in contexts most commenters will never be in. It seems like people care less about pedagogy and more about transgressing social boundaries allegedly set up by “PC” liberals or whatever euphemism you want to use.

        1. My own view is I think student activists of a particular political orientation have grown accustomed to bossing professors and administrators around. It’s not just one word. It’s also outrage that Professor so-and-so is OMG REPRESENTING A GUILTY CRIMINAL (imagine that!), or it’s Halloween costumes, or it’s unpopular speakers, etc.

          What limiting principle is there which assures us that these students will just limit themselves to “use this word in your textbooks but not your lectures”?

          1. “What limiting principle is there which assures us that these students will just limit themselves to ‘use this word in your textbooks but not your lectures’?

            Where, exactly, did you encounter this offer to limit themselves?

        2. It’s sort of a chicken-egg problem, since transgressing social boundaries is what black culture (at least post-1986) is all about. Not that I ever hear anyone use the subject slur. Instead, I just see anyone who can afford it putting their kids in private schools.

    2. As a general matter, the less I hear that word coming out of the mouths of white people, the better.

      But it does exist in the world, and there are rare contexts (Blazing Saddles, F Lee Bailey at the OJ trial) where it illuminates something important.

      And no, I don’t want to say it.

  24. I remember being shocked once by the language used by a Professor. In 1970 I was an undergraduate taking a course in Constitutional Law at Penn State taught by Dr. Ruth Silva. I took her for a very staid old lady (who I have since figured out was all of 50 at the time) who walked into the class one afternoon and said she just saw the dumbest protest sign ever. She said the sign said
    “Fuck the University”
    and then she said
    “Can you imagine someone trying to fuck the whole University?”

    I, and the class, sat in stunned silence.

    1. I take it there was no discussion of Carlin in your Con Law class, just because the case hadn’t arisen yet?

  25. (1) I think you’re absolutely right about the merits of this argument, Prof. V.

    (2) You’re also right that Judge Pregerson was a liberal judge, and he certainly had a long and consequential career on the bench.

    (3) Others certainly disagree, and I note your own careful wording, but: He was not a circuit judge whom I respected, however. To the contrary, on at least one occasion, I [was] almost speechless that Judge Pregerson [wasn’t] — and you blogged about that same occasion.

    This is indeed only one of countless examples one can find in which the justice system — including, of course, the human participants therein — have unapologetically quoted very ugly or hurtful words during court proceedings because doing so was essential to understanding the factual context out of which the dispute arose.

    A few years ago, I tried a jury case to verdict in which my client alleged that the defendant physician’s malpractice had injured his (my client’s) penis. Obviously, it’s impossible to have a case about an alleged injury to a penis without everyone involved saying the word “penis” over and over again. I suppose I could have filed a motion in limine asking the court to spare my client that embarrassment by ordering everyone to use instead the phrase “the p-word” every time they meant penis. But that would have been stupid and unnatural, a distraction in the pursuit of justice. Instead, early in voir dire, I addressed head-on — yes, pun acknowledged — that it was going to be impossible for anyone, including the jurors, to participate in this trial without squirming and/or giggling. Dick jokes, I told them, are simply irresistible to a very large percentage of the public, including me and, in fact, including (from time to time) my own client. But what was important, I stressed, was whether the jurors selected for the case could maturely consider and discuss the factual issues in the case without permitting those impulses to affect their decision.

    My voir dire strategy worked. And with that, the issue effectively disappeared from the rest of the case. Ridiculous circumlocutions like “the p-word” were entirely avoided. Anyone offended, got over it — as well they should have!

    1. I am sure your oratory skills reached their climax in closing argument

    2. The members of the jury rose in unison, as the youthful and slender judge entered the courtroom.

    3. Why do I suspect this tale was borrowed, with some modification, from Anatomy of a Murder?

      1. “Panties” is an altogether different p-word, and I assure you that my client’s wife in no way, shape, or form resembled Lee Remick. That is indeed a terrific movie, though, one of my all-time favorites.

  26. Prof. Vokokh,

    You said nigger 4 times in that post, and you said lawyer 18 times!

    Which is worse? 🙂

    1. Reminds me of a joke that was circulating when I was in law school.

      Why does New York have all the lawyers and New Jersey have all the toxic waste dumps?

      Because New Jersey got first pick!

    2. You’re not helping Prof. Volokh position himself to persuade UCLA to hire more conservatives and Republicans, anorlunda.

  27. Is there an English word for asking about an issue that’s not really an issue at all? The asserted parallel between the listeners in the courtroom and the students in EV’s class is irrelevant. What’s relevant is that Pregerson could not be mau-maud out of his job, while EV’s dean can be, for what would be termed her “disgusting” omission to discipline him. Jeez.

    1. Keeping the customers happy is part of the job for any manager, and an academic dean is no exception to this rule.
      An unrelated example. Many, many years ago. I worked phone lines for a software publisher during a product upgrade rollout. People who bought the upgrade product directly from the publisher got a 70% discount from retail and received a plain brown cardboard box with all the disks and manuals and insert cards that the retail product shipped with, whereas the retail product came in slick-looking slipcase box. We had a customer call in all irate because he didn’t get the retail box with his non-retail purchase. Eventually a manager took over the case and eventually shipped the guy an empty retail box which was obtained by going down to the warehouse and pulling a retail package off a pallet and dumping out all the contents.
      Some unnamed slick telephone rep scored a complete copy of the software by dumpster-diving the trash that day and retrieving the disks and manuals before they got mixed with the kitchen trash and put out for the garbage disposal hauler to take away to the landfill.

      1. I vaguely remember a criminal prosecution for something similar…

  28. Black First Amendment lawyer chiming in. Quoting the word is not the same as directing it at someone. But, when someone who has never been called it seems to revel in its use (yes you, EV) it makes me uncomfortable and suspicious. Yes, you have the right, but is it so hard not to be an ass about it?

    1. How has he “revel[ed]” in its use?

      1. Perhaps that term isn’t quite accurate, but EV seems overly anxious to discuss his situation (how many pieces has he written about it in the last few days while repeatedly using the word in question)? I’m supportive of his position, but he’s beating a dead horse IMO. And when that happens one begins to wonder why. Perhaps he’s reveling in it.

        1. I am not so concerned about him being overly anxious to discuss the issue. He was just called out by his dean! Seems legitimate to say his piece.

          But I can totally see how the repeated use of the word, OUTSIDE his classroom, in his defenses of it, would be off putting.

          Lee Bailey and Johnnie Cochran said the word, properly, in court. But they didn’t say it all the time when defending their position to the news media.

          1. Perhaps some people aren’t sufficiently respectful of the pressures associated with maintaining right-wing credibility — which, it appears, sometimes involves brandishing racial slurs.

    2. It’s a fair criticism to say someone has reveled in its use. But, as Bored Lawyer asks, how do we know when that line is crossed?

      Dilan Esper thinks we cross it except when its shock value is relevant in court (and perhaps in some other contexts). That is, he believes Eugene describing his use of it in his class is over the line.

      I took the position that any descriptive use is not racist and therefore OK. However, the “revel” standard could call into question some of those uses even though none are racist, but perhaps not all of them. Perhaps if you can make your point without using the word (*), you should do so.

      (*) I do not count using the euphemism as an acceptable way to make a point.

      1. I don’t know if Prof. Volokh’s use of it here is over the line. I do think there’s a stronger argument as to that proposition with respect to the use here and in that conversation he had, whereas he has a stronger argument with respect to the use in class when discussing cases where the enunciation of the word really may be an important aspect of the case (in the same way you change Cohen v. California if you refuse to say the f-word).

        But there are no real bright lines here. For instance, as to “reveling”, if a hypothetical law professor deliberately assigned 30 different cases that used the word in the statement of facts, that professor might still fall on the “mention” side of the use-mention distinction, and yet I would question that professor’s motives and whether he or she really needed to do that.

        The only firm principles I adhere to here is the students (or, more likely, a few vocal students who want to “take down” a professor) don’t get veto power over what a professor says in class, and there can be some limited situations where a white lawyer, judge, or professor saying the word has a legitimate purpose even if it makes people uncomfortable.

  29. As a white guy – whatever that means – I have no idea how a black student would feel in Prof. Volokh’s class. But I know for sure that if I were a white student sitting next to a black student in Prof. Volokh’s class, I would be super uncomfortable. I am imagining all the white students concentrating like hell on nothing but not looking at the black students when the word is used. Doesn’t seem like a great learning environment for anyone. But that’s the opinion of someone with zero experience teaching a class of students.

    1. “…if I were a white student sitting next to a black student in Prof. Volokh’s class, I would be super uncomfortable.”

      For God’s sake, won’t somebody think of the white students!

      1. Thread winner.

      2. I would think a good instructor would be thinking about all the students in his class. Besides, which is it? Are whites attacked and persecuted in this country, or can we ignore their concerns? Your narrative is showing holes.

    2. Alpheus: I hope you are not and never intend to be a lawyer, because you just told the world how opposing counsel can sabotage you in court. Anyone who cannot handle Volokh’s class does not belong in law school.

      1. I am not nor ever intend to be a lawyer. But I didn’t say I couldn’t handle Prof. Volokh’s class, I just said those circumstances would make me uncomfortable. But I would suffer my discomfort in silence, and move on. I don’t belong in law school because I am too old and I have become lazy.

  30. What I don’t get is that the word “nigger” when uttered by a white person, is treated similarly the word “Voldemort”. No matter the context or reason, it’s treated as a cardinal sin. Even as an example of something that should not be said or a direct quote. That’s absurd. It’s doubly absurd when a black person can utter the word endlessly without repercussion.

    1. Prof. Volokh appears to feel your pain. Perhaps that special empathy is a reason it is so important to have more movement conservatives on strong law school faculties?

  31. I think that as rational adults, we should deal with the facts as they are. Person A said . It’s a [disputed?] fact, it’s part of the case, it’s important. The lawyers, judges, jurors, students, or spectators aren’t the ones who said it, they’re the ones who are discussing it.

    You don’t expect your urologist or gynecologist to use words like “you know”, “thingy”, “down there”. Accurate terminology is appropriate and required when discussing facts crucial to the matter at hand. Grow up and deal with it.

    1. Sorry, something interpreted my emphasis as a missing word. Person A said “thing”.

    2. You need to read up on your identity politics. The color of your skin or gender confer upon you special privileges especially when you have been put into a “victim class”. The more victim classes you have the more special privileges you are given by the system. If you have enough you can break laws, lie, cheat, steal, and do other fun stuff because you are a victim who can’t be held responsible for your actions.

      If that sounds like a Jim Crow kind of system, where you get privilege based upon a particular class status, it is because that is precisely what identity politics does.

  32. I remember having oral argument at a law school once. Texas cases are sometimes transferred to different appellate districts to even the docket load. Instead of making a bunch of Dallas lawyers come to El Paso for argument, the judges came to Dallas and had argument at a moot court courtroom at SMU Law.

    My case was a sexual assault of a child case. The courtroom was absolutely packed with bright young law students eager to watch real oral arguments. I could FEEL the squirming when I had to start talking about blowjobs and handjobs in front of the judges. But quoting the actual language used by the child to describe what happened can be essential in child sex assault cases. I hope that the students who were shocked and uncomfortable learned an important lesson about what actual oral arguments can be like — which was the whole reason they were there.

    1. I do too.

      And I might add, that seems like a legitimate situation for a trigger warning, which I am often skeptical about. Nothing wrong with warning the students, “hey, this is a child abuse case and you may hear some really gruesome discussions of what is alleged to have happened. You should be prepared for that”.

      1. That trigger warning should come before the student enrolls in the law school – or better yet, before they enroll in college at all. If they can’t handle such discussions, they can’t do the job they are training for, and should save their time and money.

        1. Not every lawyer has to get involved in such cases. It’s a specialized field, and someone who can’t handle it can have a successful legal career while avoiding it. It’s a lot harder to be a good lawyer while avoiding any situation where racial slurs would be mentioned.

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