Free Speech

UCLA Law Dean Apologizes for My Having Accurately Quoted the Word "Nigger" in Discussing a Case

I, however, do not apologize.

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When I teach First Amendment law, I tend to talk for a few minutes each week about real First Amendment events in the news. In October 2019, when two UConn students were being prosecuted for "racial ridicule" for walking on campus and shouting "nigger" (apparently at no-one in particular)—an extremely rare instance of an actual hate speech prosecution in the U.S., and thus an excellent illustration of the legal rules that we had been learning and the arguments that we had been considering—I discussed that case in class. As I always do, I discussed the facts, without expurgation or euphemisms. A few weeks after the class, I learned that some students had disapproved, but I didn't discuss it further with any students.

In early March 2020, right before an event at which a professor from a different law school was talking, someone shouted to me something like, "Volokh, don't use the n-word today!" (I'm not expurgating here, as you might gather; he did say, "n-word.") The speaker, to whom I was talking at the time, asked me what that was about, and I responded that, last Fall, I had talked about the prosecution of the UConn who had shouted "nigger," and some students were upset about my quoting that word. I wasn't speaking to the class as a whole, though I also wasn't trying to whisper: Especially at an American university, it seems to me, faculty and students (and others) should be free to discuss incidents in the news (or incidents in the law school) without looking over the shoulder to see who might overhear and be offended.

Also, no-one has tried to make anything of this (at least yet), but to fully disclose matters, let me note that in my Amicus Clinic class this Semester we were discussing our cases, and in one of them a man was being prosecuted for saying "What, are you an idiot? What do I have to do, be a nigger to be served in this—in this place?" to a black employee at the VA. (I believe that such speech might well have been constitutionally unprotected against a "fighting words" prosecution, or perhaps under some other theory; but the jury instruction in his case allowed the jury to convict him based on the use of "loud, abusive, or otherwise improper language," and our argument for amici will be that this prohibition on "otherwise improper" language is unconstitutionally vague and potentially viewpoint-based.) As you might gather, I quoted that as well.

My Dean (whom I much like, and whose work I generally much respect) has now issued a public apology to the UCLA Law community for the first two of these incidents:

Earlier in the year, Professor Eugene Volokh used the "n-word," both in class—in teaching a First Amendment case—and outside of class when recounting the incident to a colleague. As you may know, Professor Volokh has strong views about why he chooses to use incendiary language—even when vile—in his classroom, without euphemism or alteration. While he has the right to make that choice as a matter of academic freedom and First Amendment rights, so long as he is not using this or other words with animus, many of us—myself included—strongly believe that he could achieve his learning goals more effectively and empathetically without repeating the word itself. That is equally true in casual settings outside the classroom.  Slurs, even when mentioned for pedagogical purposes, hurt people. The n-word is inextricably associated with anti-Black prejudice, racism and slavery; it is a word that carries with it the weight of our shameful history and the reality of ongoing anti-Black racism. I am deeply sorry for the pain and offense the use of this word has caused, and I very much respect the important work our Black Law Students Association undertook, using speech to counter speech, in the flowchart they distributed around the building.

I want to respond here by explaining why I think I was right, and why I will continue to accurately quote things in class and outside it. This is of course very similar to what I said about the controversy at Wake Forest involving the great legal historian Prof. Michael Kent Curtis, but I thought I needed to repeat it here as well.

My view is that, in class readings and in-class discussions (as well as in outside-class discussions), professors ought to mention what actually happens in a case or incident, without euphemism or expurgation; and students should feel free to do the same. If professors and students feel uncomfortable with saying those words themselves, I wouldn't condemn their decision to use an expurgated form (see, e.g., Prof. Geoffrey Stone's decision along these lines); but I think the better approach is to accurately quote.

Professors certainly shouldn't use epithets, racial or otherwise, to themselves insult people. But when they are talking about what has been said, I think it's important that they report it as it was said. This is often called the "use-mention distinction," see, e.g., Randall Kennedy, How a Dispute Over the N-Word Became a Dispiriting Farce, Chron. Higher Ed., Feb. 8, 2019; John McWhorter, If President Obama Can Say It, You Can Too, Time, June 22, 2015 (distinguishing "using" from "referring to").

Thus, when I have talked in my First Amendment Law class about Cohen v. California, I talked about Cohen's "Fuck the Draft" jacket, not "F-word the Draft." When I talked about Snyder v. Phelps, I talked about Phelps' signs saying things like "God Hates Fags." When I talked about Matal v. Tam, I talked about a trademark for a band called "The Slants," which some view as a derogatory term for Asians. I suspect many, likely most, law professors do the same; they should certainly be allowed to. If I were to talk about the Redskins trademark case, I would say "Redskins," rather than talk around the word, the way some news outlets apparently do.

To turn to speech hostile to a group I belong to (Jews), when I talked about a rare recent group libel case, the Montana State v. Lenio case, I noted that Lenio said, "I think every jew on the planet deserves to be killed for what kikes have done to our #dollar and cost of living Killing jews > wage #slave ….," "#Copenhagen [referring to the then-recent Copenhagen shootings, including at a synagogue] It's important to note that jews hate free speech & are known bullsh-ters, could be #falseFlag So Hope for many REAL dead kikes," and "Now that the holocaust has been proven to be a lie Beyond a reasonable doubt, it is now time to hunt the Nazi hunters." (As it happens, both my parents came close to actually being killed by Nazis in World War II: My father was trapped in besieged Leningrad [civilian death toll about 1/3], and my mother was a Jew in Kiev [likewise, death toll about 1/3 or more] who would likely have been murdered with the other Ukrainian Jews if she hadn't been evacuated to Siberia. Nazi rhetoric and symbolism: Not my favorite.)

We have had readings or slides discussing cross-burning, and depicting swastikas and Confederate flags connected to cases or problems. And of course when I talk about leading First Amendment cases (such as Brandenburg v. OhioVirginia v. BlackNAACP v. Claiborne HardwareBoard of Ed. v. Pico, and more) that use the word "nigger," I don't try to avoid the word, and don't expect my students to.

This is so for several related reasons:

[1.] First, the law school is part of a university, where we should try to discuss the world as it is, the evil as well as the good, whether in law classes, history classes, literature classes, film classes, modern music classes, or elsewhere. This strikes me as a fundamental feature of the modern university: The right (I think the duty, but at least the right) to accurately present and discuss the facts of the world around us. That should be true of literature departments, of history departments, of law schools, or any other part of the university where such matters may arise.

[2.] Another reason is that, once a rule is set forth that you can't use "nigger," people will naturally assume that this reflects a broader principle. What about "fag" in "God hates fags" from Snyder or the other Westboro Baptist Church cases? What about swastikas or Confederate flags or "Negro," in law school classes or history cases or other classes in which these are parts of the relevant materials?

Normally, we expect students to accept candid discussions of awful things (and history and law are chock full of awful things). But once one word that bitterly insults one group is made taboo, it's human nature for other groups to expect equal treatment for themselves. A categorical principle that all of us can quote all words, precisely because we are reporting the facts rather than using the words pejoratively, strikes me as a much better approach, and one that will help decrease the extra hurt feelings that will arise if, say, gay students were told that "fag" can be quoted but "nigger" can't be.

[3.] Beyond this, a good deal of history and of crime is much more painful than mere racial hostility (even the bitter hostility that many actual uses of "nigger" reflect). Genocide. Slavery. Hitler, Stalin, Mao. Rape. Child molestation. Lynching.

Some students may understandably find being reminded of such things to be much more painful than just hearing a quote from some racists. To give one concrete example, some years ago several law school administrators at a Top 20 law school told students designing a moot court problem to remove one of the precedents from the readings. (Moot court problems often focus on writing and oral delivery rather than research, and therefore give students a closed set of precedents on which they can rely.)

The problem was about the First Amendment and threats. The case that they were told to remove was the most important precedent in the field, Virginia v. Black. The reason given to remove the case was that the precedent involved cross-burning, which might be seen as too traumatic for some students. The result would have been pedagogically nonsensical, Hamlet without the Prince. Indeed, it would have taught the wrong message—and, I think, would have been humiliating for the students and the school when outside judges asked the students in the oral arguments why they hadn't discussed the key precedent.

Fortunately, the decision was ultimately reversed. But this is where we go with the logic of compulsory expurgation of racially offensive material from sources that include it.

[4.] Moreover, law schools are training people to become lawyers. Lawyers have to deal with facts as they are, regardless of how unpleasant those facts may be. They need to read cases that contain nasty words and describe nastier actions. Do a Westlaw search for nigger & da(aft 1/1/1990), and you will find a bit more than 10,000 such cases, and there are many cases that quote other epithets as well; nor is the pace slowing down. (These cases, by the way, include Supreme Court opinions by, among others, Justices Blackmun, Ginsburg, Marshall, O'Connor, Sotomayor, and Thomas.)

And that's just in the cases that lawyers may have to read and discuss. On top of that, lawyers have to listen to witnesses who report what they heard. They have to listen to opposing counsel who quote cases and evidence. They have to hear judges who do the same. (Westlaw archives far fewer oral arguments than cases, but a search through its limited trial transcript and oral argument database for likewise reveals hundreds of mentions of "nigger.")

And indeed every day, lawyers of all races, religions, ethnic groups, and sexual orientations handle cases—whether in criminal law, employment law, education law, civil rights law, family law, or elsewhere—in which they hear extremely offensive material. They handle these situations with professionalism, and don't let the casual cruelty, callousness, and hatred that they read or hear about get them down. (Just to give one prominent example, the defendant's brief in the leading First Amendment precedent Brandenburg v. Ohio, a case in which a KKK speaker used the word "nigger" repeatedly, was cowritten by Eleanor Holmes Norton, now the delegate to Congress from D.C. and then a young black lawyer. Unsurprisingly, both the Supreme Court opinion and Del. Norton's brief accurately and repeatedly quoted that word.)

I do not for a moment think that black lawyers allow themselves to be debilitated by hearing material about racism, gay lawyers about hatred towards gays, Jewish lawyers about anti-Semitism, and so on, whether that material describes violent attacks, contains epithets, or whatever else. I think that, as law students and law professors, we should follow this example.

[5.] Indeed, the implicit message of the claim that black law students, in particular, need to be protected from hearing cases that contain the word "nigger," because they find it so "painful" or "challenging" (to quote the Dean of Wake Forest's law school) or offensive or even traumatic, is that young black lawyers will likewise be sharply disturbed by hearing the word in the everyday reality of their practices—in courtrooms, in depositions, in witness interviews, wherever it is part of the facts of a case or of a relevant precedent. If this were true, then this would suggest that black lawyers are going to be less effective than white lawyers, because they are so pained, challenged, disturbed, and distracted by simply hearing the word.

As I mentioned in item 4 above, I do not for a moment believe that black lawyers actually are less effective lawyers, precisely because I do not believe that they are so easily wounded simply by hearing the facts of a case. But I also don't believe that black law students (or other law students) are likewise so easily wounded.

I believe that students and lawyers of all identities are perfectly capable of handling the often ugly reality of the world, as reflected in the precedents and in the cases before them. And I think it does them no service to tell them that they are somehow entitled to be so shielded from that reality that they don't even hear some aspects of that reality.

For more on this subject, see Randall Kennedy's book Nigger: The Strange Career of a Troublesome Word,(2003), as well as Randall Kennedy, How a Dispute Over the N-Word Became a Dispiriting Farce, Chron. Higher Ed., Feb. 8, 2019; John McWhorter, If President Obama Can Say It, You Can Too, Time, June 22, 2015, which I also mentioned above. And if you're interested, you might also consider Johnnie Cochran's argument in the O.J. Simpson trial, which I think provides a helpful analogy (though I recognize that we're talking here about analogy and not identity).

Prosecutor Chris Darden had argued that the Judge should exclude evidence of Mark Fuhrman's use of the word "nigger," "because it is so prejudicial and so extremely inflammatory that to use that word in any situation will evoke some type of emotional response from any African American within earshot of that word." Darden went on,

Mr. Cochran would like to ask a white police officer if he ever used that word and after that white police officer testifies there will be other white male police officers, and by the time those other officers testify they will—the jury will have heard this word, they will be upset, they will have become emotional, and as soon as Mr. Cochran works them up into that emotional frenzy he would like to get them into, as soon as he does that and the next white police officer takes the witness stand, the jury is going to paint that white police officer with the same brush Mr. Cochran painted Detective Fuhrman.

Here was Johnnie Cochran's response:

[Mr. Darden's] remarks are demeaning to African Americans as a group….

It is demeaning to our jurors to say that African Americans who have lived under oppression for 200 plus years in this country cannot work within the mainstream, cannot hear these offensive words. African Americans live with offensive words, offensive looks, offensive treatment every day of their lives, but yet they still believe in this country. And to say that our jurors, because they hear this offensive word—every day that people call, that they interact with people, we have heard this in the questionnaires—to say they can't be fair is absolutely outrageous for the prosecution to stand here and over the last couple of days to present character assassination against this man, unfounded, bogus charges after charge after charge, then to withdraw seventeen of those charges, for them to have the temerity, the unmitigated gall to come into this courtroom and talk about fairness.

What we are going to be talking about this afternoon, your honor, is words out of the mouth of Mark Fuhrman. What I want to share with you are the things that this man said, not what we made up, what he said, what he told people….

Your honor, we didn't create Mark Fuhrman. We take witnesses the way we find them. We didn't tell him to go to the doctor and say all those things that I will share with you this afternoon. We didn't tell him to say those things in front of Kathleen Bell….

Cochran was an excellent lawyer who was prepared to confront the ugly reality of the world in effectively defending his client. Teaching students that they are entitled never to hear the word "nigger" quoted from accounts of real cases or incidents will not, I think, help them become such excellent lawyers.

NEXT: Should We Replace Traditional Elections with Sortition?

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  1. I can understand why the word “nigger” is so verboten in modern culture (e.g. KKK, Trump Sr., etc.). Are there any other words that should be forbidden in polite conversation? Please provide examples. Also, are trans-racial people like Shaun King allowed to use the n-word without repercussions? Sure, he’s biologically white but culturally he identifies as Afro-American.

    1. The first syllable of the word “country,” when said in reference to female anatomy.

      1. Not a word I’d use, but certainly one I’d mention if it comes up in a case — over 1300 cases in Westlaw, with half in just the last 10 years. And of course it’s in the Appendix to FCC v. Pacifica Foundation, published in U.S. Reports.

  2. You actually used the *w*rd not once but several times. Thats it I’m ringing up all your bosses and any media outlet I can find to get you fired. Also I think your bank, social media account providers, fundraising platforms, and review sites would like to hear about this so any financial transactions, communications, and private business you conduct becomes extra difficult for the rest of your life. We like to be through these days.

  3. I’ve sometimes wondered if/when the NAACP will change its name/abbreviation to NAABP or NAAN-WP.

    1. Wouldn’t it be NAAAAP?

      1. Yes, I thought of that about 2.5 tenths of a second after clicking Submit.

    2. You would be amazed at how few know what the “CP” stands for.

      1. Replacing the CP with POC … not quite accurate

  4. Any prospective lawyer should be required to read this post.

  5. To undo the pain caused, it should only be referenced by its reverse spelling, Reggin.

  6. “To turn to speech hostile to a group I belong to (Jews)”

    I thought you were going to say lawyers.

    1. Well, “‘The first thing we do, let’s kill all the [Jews]” actually appears to be a more common attitude than “‘The first thing we do, let’s kill all the lawyers.”

      1. I read somewhere that lawyer jokes were actually anti-Jewish jokes in disguise. I don’t have the citation with me now.

        1. I’d love to hear more about this, but I’m skeptical — my sense is that people have been hostile to lawyers, on more or less the grounds reflected in many lawyer jokes, long before Jews joined the profession in any great numbers.

        2. “I read somewhere that lawyer jokes were actually anti-Jewish jokes in disguise. I don’t have the citation with me now.”

          Bullbleep.

          With the exception of certain aspects of the Islamic community, there is not hatred of Jews qua Jews. There *is* hatred of lawyers qua lawyers. And of those who hate Jews qua Jews, most hate Christians as well.

          1. Thanks for the information, which confirms my belief that those guys chanting “Jews will not replace us” in Charlottesville had to be dirty, lousy Muslims.

            Your ignorance is comprehensive, Dr. Ed.

          2. Dr. Ed:

            I grew up in a Christian church in which one of the elders once said during a sermon that his only objection to the Holocaust is that it wasn’t actually successful in completely eradicating the world’s Jews. My third grade Sunday school teacher quoted the passage in the Gospel of Matthew in which “the Jews” telling Pilate that “his blood be upon us and upon our children” meant that the Jews deserved all of the suffering they have received since then.

            Arthur is right. Your ignorance appears to be bottomless.

            1. By the way, Eugene, is there a way to upload an image to a comment? After all these years, I still have a copy of a letter that same elder wrote to a Jewish history professor in which he (the elder) proudly laid out why he hates Jews. I’m sure it would be quite enlightening for Dr. Ed and others who think anti-Semitism is restricted to Muslims, and those who also hate Christians.

      2. Perhaps you need to get out more?

        1. See, that’s exactly what they aren’t letting me do!

          1. Polish your pitchfork, we’re not far from that….

      3. “The first thing we do, let’s kill all the lawyers.”
        Always thought “The Butcher” was one of the bad guys and they wanted the lawyers (protecters of the ‘good guys’) out of the way.
        But, it has been awhile.

      4. Well, “‘The first thing we do, let’s kill all the [Jews]” actually appears to be a more common attitude than “‘The first thing we do, let’s kill all the lawyers.”

        You should spend more time among non-lawyers

      1. Eddy: Good lawyer joke there!

        1. OK, it’s lost on me. Please explain the lawyer joke there.

          1. Use of the word ‘lawyer’ as an epithet, poking fun at their percived spot being down near politicians and used car salesmen.

  7. TL;DR version:

    Context matters.

  8. It seems that your Dean missed a great opportunity to help these students learn how to be better lawyers. I’m glad that you’re taking the opportunity to teach her how to be a better Dean.

  9. A hundred years ago, no one thought someone saying, say, “goddamned” was going to cause real harm to anyone, either, but censoring and punishing people who might use such a phrase publicly allowed the pious to advertise their piety. Same idea.

    1. So you’re saying the 2nd commandment did not play a role in sustaining Judaism and Christianity through the centuries?

      1. Or 4th commandment, rather. Goddamned.

    2. A hundred years ago, no one thought someone saying, say, “goddamned” was going to cause real harm to anyone, either, but censoring and punishing people who might use such a phrase publicly allowed the pious to advertise their piety. Same idea.

      Bernstein, you sound like a court making a mistake about its jurisdiction over religious issues.

      Also, I have no knowledge about that issue 100 years ago. Pretty sure what you say would be mistaken about the expectations of some practitioners of some Christian denominations in southern Appalachia circa 60–80 years ago—about which I do have personal anecdotal memories.

      The question would not center as some might expect, on the fate of a blasphemous person personally, but instead on what believers might expect to be the fate of a community judged harshly by God for condoning blasphemy. That “advertising piety,” bit did not come entirely from personal character flaws, however much it might have chimed with them. It has deep roots in a particular Calvinistic tradition, which thought personal offenses against God could provoke wrath against an entire religious community. New England Puritans believed that. The harsh reputation amateur history attributes to the Puritans owes much to manifestations of that belief. Growing up, I was sometimes among Appalachin Calvinists who looked a lot like Puritans, at least in that way.

  10. “Especially at an American university, it seems to me, faculty and students (and others) should be free to discuss incidents in the news (or incidents in the law school) without looking over the shoulder to see who might overhear and be offended.”

    That point — and this general expression of support for free expression — would be more powerful coming from someone who has not repeatedly engaged in viewpoint-based censorship.

    What kind of person uses “nigger” but censors “cop succor” and “slack-jaw?” The list starts with a conservative law professor, apparently.

    1. I’m sure I’ve asked you this before, but If you answered I don’t remember: what exactly happened in this incident where you feel Prof. Volokh censored your comment?

      And regardless (or perhaps especially) if Prof. Volokh did in fact delete your comments for using language he didn’t like, I’d be happy to wager any amount you care to name that Prof. Volokh will not remove this comment, or any future comments where you reference your previous comments, for precisely the reasons he describes in this post.

      1. Several incidents:
        1) Artie Ray Lee Wayne Jim-Bob Kirkland was banned for making fun of conservatives. Artie Ray was OBL from the other side. Prof. Volokh banned Artie Ray.
        2) I used the term “c@p succ@r” to describe people who reflexively excuse or enable abusive police conduct. That term was erased from more than one post by Volokh Conspiracy management and I was instructed to stop using it.
        3) I was warned not to refer to conservatives as “sl@ck-j*ws.”

        I believe Prof. Volokh is entitled to ban commenters and censor comments for any or no reason — this is his playground. He also is entitled to criticize others — with a low-grade partisan slant, perhaps consequent to a blind spot — for engaging in similar viewpoint-based censorship. Hypocrites have rights, too. So do clingers.

        1. How is that hypocritical in any way?

          Did he ban you from accurately quoting someone who used those words?

          I could just as easily see him banning someone for repeatedly calling black people the n-word on this site. And I’d expect him to. But that action would in no way be hypocritical.

          And I’m certain you see why there is absolutely no hypocrisy involved.

          1. Mr. Moroni, I humbly submit that a common patriotic citizen and distinguished member of America such as yourself should take note of this comment:

            “It’s not that the “fighting words” exception prohibits racial epithets as such (and indeed fighting words bans that single out bigoted epithets are unconstitutional, see R.A.V. v. City of St. Paul); it’s that it prohibits face-to-face personal insults. Saying “You nigger” to a VA employee might be fighting words, just like saying “You motherfucker” might be. (I appreciate that both words are sometimes in ways other than as personal insults, but the question is whether they are fighting words when they are indeed used to insult.) The question is whether “What do I have to do, be a nigger to be served … in this place?” would implicitly be understood “What do I have to do, be a nigger like you to be served … in this place?”; if so, then it might be fighting words just like “What do I have to do, be a motherfucker like you …?” might be fighting words.”

            Please recognize that this comment’s author (1) was not quoting anyone in using vulgarities and epithets, (2) was not censored by this blog, and (3) was Prof. Eugene Volokh.

            I further and still humbly submit to a distinguish citizen such as yourself, Mr. Moroni, that I believe your point can not withstand that comment.

            (P.S.: I had a chance to speak with Michael Keaton, and mentioned your work. He told me he still likes to use your nomenclature.)

            1. Eugene is still just referencing the words of others and speaking about their legal significance. He’s not actually calling anyone those names.

              Look, I know that you understand the difference. Eugene is in no way saying that it’s okay or appropriate to call another human being these things. He’s quoting others accurately and I think you probably agree with his reasons for doing so, especially when teaching actual case law.

              The comment section rules are pretty clear: behave as you would at someone’s living room gathering. If you’re being purposefully rude, your host has every right to ask you to leave.

              And I actually appreciate your comments when you are not being disingenuous. But in this case, I believe you are. And I don’t mean that as an insult. I respect your intelligence enough to assume you aren’t missing the contextual difference here.

              Maybe you’re just trying to be meta and get around the comments rules by quoting those insults rather than hurling them, even though in this case you’re quoting yourself.

              That is a something of a clever troll.

              And I’m glad Michael Keaton appreciates the greatest fargin character in the history of cinema in this somenombatching country.

              1. > Eugene is still just referencing the words of others and speaking about their legal significance.
                > He’s not actually calling anyone those names.

                Indeed; as an ex-logician, I feel obliged to point out the crucial use/mention distinction (https://en.wikipedia.org/wiki/Use–mention_distinction). Obviously a prohibition against the _use_ of a certain term does not apply to _mention_ of the term—otherwise prohibiting the term explicitly would be prohibited.

                1. Those who enforce rules like this _prefer_ vague rules – otherwise, those not in the in-group might know how to follow the rules and avoid persecution.

  11. Why don’t we just all admit to ourselves that black people are royalty? If someone ever asks me why I try not to speak to blacks, my answer will be that I’m a mere commoner, and we’re uncomfortable addressing royalty.

    1. Sid,
      I don’t get it. A joke? (I’m guessing so, but I’m totally not getting it. Is there some meme going around that all black people think they came from royalty? Or is it something else entirely???)

      1. Not really an answer to your question, but how about a story? In 2008 I was on a bus, traveling from San Rafael to Marin City, when two 50-ish black men sitting by the rear doors were talking extremely – needlessly- loudly. Across the aisle from me was a Mexican woman of about 30, looking haggard as if she’d just finished a shift making beds or the like. She turned around and said, “would you two PLEASE be quiet?” To which one of the gentlemen responded, “how you like get slapped, bitch? You don’t NEVER tell a black man to be quiet!”

        See, Arthur believes that the crackers are white. But that’s changing.

        1. Great story, Sid! I think it’s beautiful that a group of conservative law professors have created a space in which conservatives feel comfortable letting their hair down, expressing genuine conservative thoughts, and sharing stories about the good old days.

          This tune reminds me that there will always be a space in the Volokh Conspiracy’s parking lot for reminiscence with respect to a time when black men weren’t so lippy and ‘real American’ white men weren’t so brutally oppressed.

    2. “Why don’t we just all admit to ourselves that black people are royalty?’

      Let it all out. All of the pain from the oppression of white, male, conservative Christians. All of the pain from experiencing all of this modernity, reason, science, and inclusiveness. All of the pain from all of this damned progress . . . and the recognition that this progress is going to continue.

  12. First, let me be clear that I think you have a reasonable position even if I’m inclined to disagree with part of it.

    When it comes to the written word I tend to agree. After all the written word allows for a precision in quotations that the spoken word does not so the cost for giving it up in the spoken context is much less.

    Second, you the idea that it’s about shielding minorities from a certain word is simply incorrect as the fact that our society reacts differently depending on the skin color of the speaker. Rather, our society has adopted the rule that it’s disrespectful for non-blacks to use that word. It’s not a rational norm or one which we might engineer but that describes all politeness norms. I mean you could say the same about asking a woman her age or the rules requiring tips. And no it won’t expand to these other words because those words tend to be intent and context driven offense not purely based on speaker group identity (non-homosexuals can get away saying fag in a positive fashion provided they are careful).

    But, as you are constantly pointing out when it comes to language (descriptions) sometimes you just gotta take society as it is presented to you and this is one of those times where you are unlikely to shift these deeply held norms while you will succeed in offending and distracting a number of people.

    If you didn’t have written quotes to fall back on I might have a different view but the cost is relatively small.

    I mean at some point you just gotta take people’s claims about what upsets them at face value and ask if the benefit from upsetting them is more than the cost.

    1. I mean at some point you just gotta take people’s claims about what upsets them at face value

      What if I don’t believe all of them and think that some non-zero number of them are opportunistically trying to exercise power, performatively object, or the like?

  13. I would have a mixing console, like a radio producer would have, and get famous people to record the words you can’t use and then whenever one comes up just hit the button that corresponds with the word. So get President Obama to say the n word and get Buttigieg to say the f word etc.

    1. You want a list of the words you can’t use at a conservative blog? Ask the Volokh Conspiracy’s Board of Censors . . .

      1. When I make fun of your name suggesting you are a cuckold it gets deleted. So that can be added to the list of censored words.

  14. Especially at an American university, it seems to me, faculty and students (and others) should be free to discuss incidents in the news (or incidents in the law school) without looking over the shoulder to see who might overhear and be offended.

    The reason you want to grow a full beard is that it makes it more difficult for others to read your lips. I learned this 30 years ago — at an American university….

  15. So I guess the Dean wouldn’t like the song “Straight Outta Compton,” especially as covered by Nina Gordon.

    https://www.youtube.com/watch?v=NG2EGOB9-lc

  16. Doubleplus ungood

  17. A very long time ago, when I attended the law school Eugene teaches at, Mel Nimmer, who argued Cohen v. California before the US Supreme Court, was on the faculty. He gave a talk, which I attended, about the argument. I don’t remember a lot about it, except he said he decided, for tactical reasons, to use the word “fuck” as often as he possibly could during the argument, and that Chief Justice Burger unsuccessfully attempted to prevent him from doing so. There are times when it is appropriate to use taboo words. To Kill a Mockingbird, one of my favorite books, uses “nigger” frequently, and in my view the book wouldn’t be nearly as good if it didn’t.

    1. He actually only used it once. But he did it after Burger had said that he hoped nobody would use it.

  18. Slurs, even when mentioned for pedagogical purposes, hurt people.

    This is feeble-minded reasoning that very nearly self-destructs. It makes me want to cross-examine the Dean before a fair-minded judge and jury.

    Presumably “pedagogical purposes” include educating students regarding which combinations of letters in print, or sounds when spoken, are slurs.

    Does the Dean propose that there be a bound leather volume, secured deep in the bowels of the UCLA Law Library, wherein students can find the decrypted explanation of what “n-word” means? Who’s the gate-keeper to this Book of Slurs That Must Never Be Repeated, Even to Know What Not to Repeat?

    It seems to me literally impossible to teach people not to use slurs without being able to specify the slur.

  19. I never understood why this one word, was soooo forbidden, that you couldn’t even accurately quote it in a historical or factual way. Maybe if you need to say it, to say accurately quote a court case, you have to hire a rapper who can stand in and just say the word on cue. Just start saying the phrase and when the word pops up shoot him a sign, he fills in the forbidden word, and you just keep on talking. Would that make the PC police happy?

  20. The work of Mark Twain provides food for thought. Twain’s boyhood was lived prior to the end of slavery. Twain played with boyhood friends who were slaves. If you read his fiction, especially The Adventures of Huckleberry Finn you find, “nigger,” time and again. Some of Twain’s non-fiction uses the word too.

    That has made Twain a controversial author among present-day cultural guardians, and it has delivered pressure to keep those works by Twain out of libraries. On the other hand, when I was growing up in the Jim Crow South, which was then under pressure to change, but resisting to the utmost, I was quite frequently urged to read Huckleberry Finn, both by teachers, and by some of my older relatives. In hindsight, I came to suppose (from other memories of them) that the folks who I remember urging that book on me were actually racists. I can’t help but think that at the time, Twain’s reputation was burnished among racists because they liked that he was a cultural icon who said, “nigger.” But they misunderstood Twain.

    It seems to me now that urging me to read Huckleberry Finn came from the same cultural impulse that put the confederate anthem, “The Bonnie Blue Flag,” into my grade school singing curriculum. That arrived at the moment the schools were integrated—a coincidence that I also noticed only in hindsight. But I do remember wondering at the time—even as a third-grader—what the newly-arrived black kids made of it, when they were told they had to sing, “Hurrah, hurrah, for Southern rights hurrah, and hurrah for the Bonnie Blue Flag of southern liberty.”

    What makes all that about Twain especially interesting to me is that if you read Twain’s correspondence and some of his essays, you do not see blacks referred to as, “niggers.” In those works, blacks are always, “Negroes.” For those not familiar with the mores of the South prior to 1960, if a southerner was free to speak as he pleased, and chose to say, “Negro,” it was always done for a purpose, never casually. It was intended to register disapproval of, “nigger,” and all that word stood for.

    The contrast of those two usages in Twain’s writing, “Negro,” in everyday usage, and “nigger,” in his art, shows clearly enough that Twain’s artistic intention never embraced racism, but instead the opposite. He chose, “nigger,” when he wanted to introduce the shock of degraded social reality into his artistic creation. He knew, “nigger,” was a word intended to make readers (and listeners) feel that degradation viscerally. Twain had artistic uses for that feeling.

    I hope this comment illustrates one way to understand why censoring, “nigger,” can come at a cost—the cost of weakening at least some communication, instead of improving it.

    1. Alas, an italics accident in paragraph 2, carried over into paragraph 3. Italics should have turned off after, “Finn,” in paragraph 2. Here it is as it should have been:

      The work of Mark Twain provides food for thought. Twain’s boyhood was lived prior to the end of slavery. Twain played with boyhood friends who were slaves. If you read his fiction, especially The Adventures of Huckleberry Finn you find, “nigger,” time and again. Some of Twain’s non-fiction uses the word too.

      That has made Twain a controversial author among present-day cultural guardians, and it has delivered pressure to keep those works by Twain out of libraries. On the other hand, when I was growing up in the Jim Crow South, which was then under pressure to change, but resisting to the utmost, I was quite frequently urged to read Huckleberry Finn, both by teachers, and by some of my older relatives. In hindsight, I came to suppose (from other memories of them) that the folks who I remember urging that book on me were actually racists. I can’t help but think that at the time, Twain’s reputation was burnished among racists because they liked that he was a cultural icon who said, “nigger.” But they misunderstood Twain.

      It seems to me now that urging me to read Huckleberry Finn came from the same cultural impulse that put the confederate anthem, “The Bonnie Blue Flag,” into my grade school singing curriculum. That arrived at the moment the schools were integrated—a coincidence that I also noticed only in hindsight. But I do remember wondering at the time—even as a third-grader—what the newly-arrived black kids made of it, when they were told they had to sing, “Hurrah, hurrah, for Southern rights hurrah, and hurrah for the Bonnie Blue Flag of southern liberty.”

      What makes all that about Twain especially interesting to me is that if you read Twain’s correspondence and some of his essays, you do not see blacks referred to as, “niggers.” In those works, blacks are always, “Negroes.” For those not familiar with the mores of the South prior to 1960, if a southerner was free to speak as he pleased, and chose to say, “Negro,” it was always done for a purpose, never casually. It was intended to register disapproval of, “nigger,” and all that word stood for.

      The contrast of those two usages in Twain’s writing, “Negro,” in everyday usage, and “nigger,” in his art, shows clearly enough that Twain’s artistic intention never embraced racism, but instead the opposite. He chose, “nigger,” when he wanted to introduce the shock of degraded social reality into his artistic creation. He knew, “nigger,” was a word intended to make readers (and listeners) feel that degradation viscerally. Twain had artistic uses for that feeling.

      I hope this comment illustrates one way to understand why censoring, “nigger,” can come at a cost—the cost of weakening at least some communication, instead of improving it.

      1. Oh crap, I’m going to bed. You figure it out. And please, why can’t we have an edit function?

  21. “I believe that such speech might well have been constitutionally unprotected against a “fighting words” prosecution, or perhaps under some other theory”

    Wait what? From everything I’ve read on sites like this, the claim that the ‘fighting words’ exception broadly prohibited hate speech has no merit because that and related exceptions require something very extreme; but if the cited comment meets the threshold for an exception, then it’s time to concede that hate speech *is* prohibited, except for extremely mild forms of it.

    1. It’s not that the “fighting words” exception prohibits racial epithets as such (and indeed fighting words bans that single out bigoted epithets are unconstitutional, see R.A.V. v. City of St. Paul); it’s that it prohibits face-to-face personal insults. Saying “You nigger” to a VA employee might be fighting words, just like saying “You motherfucker” might be. (I appreciate that both words are sometimes in ways other than as personal insults, but the question is whether they are fighting words when they are indeed used to insult.) The question is whether “What do I have to do, be a nigger to be served … in this place?” would implicitly be understood “What do I have to do, be a nigger like you to be served … in this place?”; if so, then it might be fighting words just like “What do I have to do, be a motherfucker like you …?” might be fighting words.

      1. That’s a lot of profanity and vulgarity from someone whose sensibilities can’t abide “c@p s*ccor” or “sl@ck-j@w.”

        1. Rev, I think you’re being willfully obtuse, because I find it implausible that you don’t understand the use-mention distinction as applied here. Please stop wasting our time (and your credibility) with this line of argument.

  22. The word epithet that I know is a lot closer to pronoun than slur. That gives one the option of denigrating epithet or angelic.

    I’ll bet that the first attestation of epithet as contemptuous is recent, a recent step in the mashing of our language.

    I have been reading Jackson Crawford on Old Norse literature and note the word Old Norse hnǫggr (“miserly, stingy”) which descendants may no longer be used in polite conversation.

  23. I’m guessing that the Dean’s apology is not, or will not be, the end of the story. Has the Dean insisted that you apologize or encouraged you to do so? Has the Black Law Students Association demanded an apology from you? Have they demanded that black law students be allowed to opt out of your classes? Have they organized protests to follow you around the campus and harass you? I understand that you may not wish to discuss this much more than you have, and I really hope that the Dean’s pathetic groveling apology puts an end to it but I very much doubt that it will.

    1. The Dean, to her credit, has not insisted that I apologize. No-one else has demanded an apology from me, at least as of this writing. (I don’t teach any required classes, so there’s no occasion for anyone to consider whether students should be able to opt out from them.) I agree that there may well be more happening on this; I put up this post because I think it’s important for me to explain my position, but obviously not everyone is going to be persuaded by it.

      1. Artie Ray Lee Wayne Jim-Bob Kirkland is glad to hear that some people, such as that dean, refrain from bringing the hammer down on people whose words rub some the wrong way.

  24. I think #4 is the crucial point. Law school is supposed to teach you how to think like a lawyer. Lawyers have to use uncomfortable words sometimes. I’ve said words I never want to have to use when I’ve been in court on sex assault cases. The actual words have power and meaning — a jury hearing a sanitized version isn’t going to be nearly as affected as hearing the actual words he was saying to the victim. It isn’t important in every context, but there are absolutely times you need to use the actual language, and the attorney needs to be able to recognize those times and use it effectively.

  25. Dr. Volokh,
    I’d suggest consideration of a sixth Reason in support of your position, to suppress racism.
    Most of us probably suspect your words if spoken by a black Eugene Volokh would not have precipitated the Dean’s public apology. Dave Chappelle and many black rappers relentlessly use the words nigger and nigga with impunity yet few blacks or white liberals are triggered or offended. Why is the pigmentation of one’s skin or the geographic origins of one’s ancestors germane to what words can cross a person’s lips, regardless of the context of usage?
    If the acceptability of one’s speech is not solely judged by context but societal norms mandate that it must also be judged by the color of the speaker’s skin, then we can never become color blind. We can never achieve Dr. Martin Luther King’s dream. That kind of political correctness perpetuates racism, the treating of people differently based upon their race.
    Additionally, this need to protect black ears from ever hearing the word is in itself offensive and arguably racist. It suggests that blacks are somehow disproportionately less able to handle offensive words or are less able to discern the distinction between citing the word academically verses it being a pejorative directed at them. I refuse to believe blacks are less capable in that realm just as I reject the notion they are disproportionately less capable of finding the license branch and securing an ID that could be used for voting.
    To rely upon racist premises to condemn something as racist is intellectually offensive. To eradicate racism, race itself must be erased from being any kind of criteria in evaluating people’s behaviors or their speech.

    1. If anyone can erase racism in our society, it’s Mr Bill and Prof. Volokh.

  26. And here I am wondering if you’ll get banned from Facebook thanks to the title of this piece, displayed in full there.

  27. As much as lawyers like to talk about “slippery slopes,” one would think that the Dean would have known that he was starting down a very steep one. Once articulation of a particular word has been declared to be socially impermissible even in the course of academic discussion about of the word’s legal significance, there will be endless numbers of people who will start demanding that the words they most deplore also be banned. Before long, the list of banned words could become longer than the list of permissible words. Come to think of it, maybe even the term “slippery slopes” will have to be banned.

    1. Slippery slope does sound kind of dirty when you put it like that.

  28. Hmmm. There is a version of this statement at ATL, with the word “nigger” bowdlerized, but leaving the words “slants” and “fags” intact.

  29. Many of the arguments for banning the n-word boil down to fears of one or more of the following consequences:

    i) Triggering feelings of dread or fear among racial minorities.
    ii) Appearing to intimidate racial minorities.
    iii) Indicating solidarity with or sympathy for racists.

    But, if i-iii are sufficient to ban on epithets it should ban scores of them, which might threaten or indicate racism as much as the n-word does. And why, despite America’s history of slavery and racism, aren’t other slurs against African Americans also anathematized? I believe that “spear-chucker”, for example, is allowed in quotation where the n-word is not.

    Something else must explain the obloquy reserved for people who use the n-word even in quotation or dispassionate description of the word’s use. The something else may be fear of…

    iv) Transgressing norms of groups that speakers are expected to respect.

    What, then, justifies members of anathematizing groups to certainly condemn even those who use the n-word in strictly professional contexts? For the reasons mentioned, fears of i-iii cannot consistently explain the disparate treatment of (a) the n-word and (b) other racial pejoratives. Perhaps special sensitivity to the n-word is an expression of the moral superiority of those who enforce the stricture. Or maybe condemnations amount to assertions of cultural power. Or maybe condemnations are to express solidarity with the group, which would make avoidance of the term a shibboleth and the n-word itself a sort of anti-shibboleth.

    Hardly any group is without its unwritten rules, and the special status of a word might fairly be accepted as a respectable custom. We in the West don’t slurp our noodles. Japanese, in contrast, may slurp as a sign of appreciation of the cook.

    Is the fetish against the n-word like that? If the fetish is mere custom, it is open to challenge. Freedom of speech is more fundamental to Western liberal values than either custom for its own sake or expression of group solidarity.

    Many Americans revere the national flag with respect approaching sanctity. But even polite circles wincingly accept disrespectful representations of the flag – say on grungy clothing – as long as such representations are not meant as assaults on the nation itself. When, on the other hand, disrespect of the flag is meant to disrespect the country, offense is as reasonable as is offense at racial epithets use in the context of reasons i-iii. But even when the flag is burned or soiled or, as in the case of one art exhibit, used as a floor covering on which viewers are invited to step, members of the professional classes are typically slow to air whatever sense of offense they feel. Freedom of expression is a stronger thread in the cultural fabric of American elites even than is the respect for the national symbol.

    The same elites often criticize quickly and loudly the use of the n-word even in a professional context – even when it is quoted to make an example of the word’s use. Criticism that is retaliation for transgressing group norms (explanation iv) amounts to a claim of moral superiority or is an exercise of cultural power and intimidation. And if criticism of Volokh is merely assertion of moral superiority or an attempt to intimidate, then doesn’t Volokh have a right verging on duty to push back? In addition to what he has already written, he could say something like this:

    “You have no claim of moral superiority in this context. I am not offending anybody except to the extent someone chooses to be offended by my precise use of this term in a non-pejorative context. And I object to brute intimidation for the same reasons I object to brute behavior anywhere.”

    If Volokh or others accept censorship of their clinical use of the word “nigger”, they tolerate bullying. And isn’t the point of anti-racism in this age in large part to resist intimidating behavior?

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