The Volokh Conspiracy
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UCLA Law Dean Apologizes for My Having Accurately Quoted the Word "Nigger" in Discussing a Case
I, however, do not apologize.
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. Ohio, Virginia v. Black, NAACP v. Claiborne Hardware, Board 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.
