The Volokh Conspiracy

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Free Speech

Race-Based Speech Restrictions

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One facet of the demands that people stop quoting the word "nigger"—even when they are quoting Supreme Court opinions or discussing other real-world incidents—is that the calls are sometimes (though not always) expressly race-based. In one example that I've seen, some law student groups distributed a flyer with the heading "Can I say the n-word?," and responded,

  • if you're "black or mixed with black," "Do what you want," but
  • if you're "white" or "a person of color but not black," "Nope[,] never."

I think this is wrong as a matter of manners and ethics, and would be illegal if turned into an official university rule.

[1.] To begin with, like many unsound ideas, there is a kernel of good sense at its root. Words mean different things in different contexts (which is part of my core argument that mentioning a word isn't the same as using it), and the speaker's identity can be a part of the context in which an ambiguous statement is interpreted.

The classic example is ethnic jokes. People often enjoy jokes that laugh at their own group's familiar foibles, but only if they think the joke is said with affection, rather than out of genuine hostility. If I tell a typical Jewish joke to someone who knows I'm Jewish, it's unlikely to be perceived as anti-Semitic. (Of course, much depends on the joke.) But if the speaker isn't known to be Jewish, listeners, especially Jews, might wonder whether the joke is said out of real hostility (again, depending on the joke and depending on how well they know the speaker). The same is likely true of people using pejoratives to greet each other.

And it's true of written communication as well as oral communication. Indeed, the identity of the speaker might become more important in interpreting ambiguous statements in writing because some of the other contextual factors that might convey the speaker's intentions (is it said with a smile?) are missing.

But that applies to humor and similar matters where the meaning of the statement may be ambiguous; it doesn't apply to serious discussions in which facts are being quoted. If someone is talking about this very debate, and asks, "Should professors be allowed to say 'nigger' in class when discussing cases or novels or films or songs in which the word appears?," that has a pretty clear, precise meaning, quite apart from the speaker's identity.

Likewise, two Supreme Court opinions in Tharpe v. Sellers (2018) say that juror Gattie's affidavit stated,

that, in Gattie's view, "there are two types of black people: 1. Black folks and 2. Niggers."

That statement has basically the same meaning—and not a racist meaning—in the per curiam majority (which had the votes of five white Justices and one Hispanic Justice) as in the dissent (which was written by a black Justice and joined by two white Justices). The statement by the juror might have had a non-racist meaning (or perhaps a differently racist meaning) if the juror had been black rather than white. But not so for the quote by the Justices.

So our sense that the speaker's race may indicate whether jokes and greetings should be interpreted as having a pejorative meaning, I think, doesn't apply to quotations in the context of substantive discussions. And for reasons I expressed in my earlier post, I don't think that anyone should feel constrained from accurately quoting such statements a university, in the classroom or out (or of course in a court opinion).

[2.] Note also the extra dimension that the race-based rule would add. Say that you have people discussing or debating a particular matter—in a conversation, on a panel, in a moot court argument, in a classroom discussion, or otherwise. They would then literally have to use different words in the same conversation depending on their race: Black parties to the debate would be able to accurately discuss the details. White, Hispanic, Asian, or American Indian students would have to expurgate those very same details. A pretty pernicious result, it seems to me.

[3.] Now to the legal point—if implemented as policy by a university, or some other employer, such a race-based speech restriction would violate various bans on discrimination:

  • Title VII of the Civil Rights Act for employees,
  • Title VI for students,
  • state laws banning discrimination in employment and education, and,
  • in a public university, the rules under the Equal Protection Clause.

Those laws ban treating people differently, including as to the "terms and conditions of employment" and not just as to hiring or firing, based on race. And the one case I know of that squarely confronted race-based speech restrictions made clear that they were covered (Burlington v. News Corp. (E.D. Pa. 2010) (emphasis added)):

We begin by addressing an issue that does not appear to have been decided by the federal courts: can an employer be held liable under Title VII for enforcing or condoning the social norm that it is acceptable for African Americans to say "nigger" but not whites? The text of the statute is the starting point for our analysis. Title VII makes it unlawful for an employer to "discharge any individual, or otherwise to discriminate against any individual … because of such individual's race." It is well settled that Title VII's prohibition of race-based discrimination protects white employees as well as minority employees. McDonald v. Santa Fe Trail Transp. Co. (1976) (stating that Title VII is "not limited to discrimination against members of any particular race"). As the law by its terms outlaws treating employees of one race differently from another race, the question becomes is there some justification for treating the white employee who says the word differently from the African American employee who says the word.

In Towne v. Eisner (1918), Justice Holmes observed that "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." This is certainly so with this particular word. Merriam-Webster notes in the usage section of its definition of the word that "[i]ts use by and among blacks is not always intended or taken as offensive, but … it is otherwise a word expressive of racial hatred and bigotry." Merriam Webster's Collegiate Dictionary 837 (11th ed. 2005); see also Randall Kennedy, Nigger: The Strange Career of a Troublesome Word 105-08 (First Vintage Books ed. 2003). Professor Kennedy, an African American, made the observation that "many people, white and black alike, disapprove of a white person saying 'nigger' under virtually any circumstance. 'When we call each other `nigger' it means no harm,' [rapper] Ice Cube remarks. 'But if a white person uses it, it's something different, it's a racist word.' Professor Michael Eric Dyson likewise asserts that whites must know and stay in their racial place when it comes to saying 'nigger.' He writes that 'most white folk attracted to black culture know better than to cross a line drawn in the sand of racial history. Nigger has never been cool when spit from white lips.'"

Historically, African Americans' use of the word has been ironic, satirical, or even affectionate. Too often, however, the word has been used by whites as a tool to belittle, oppress, or dehumanize African Americans. When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it.

Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans. To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a "good" race-based social norm that justifies a departure from the text of Title VII. Neither the text of Title VII, the legislative history, nor the caselaw permits such a departure from Title VII's command that employers refrain from "discriminat[ing] against any individual … because of such individual's race."

UPDATE [June 14, 2020, 12:51 pm]: Some good words, I think, from Prof. Randall Kennedy (Harvard Law, the same one quoted in the opinion above), in a CNN interview; Prof. Kennedy explain why he opposes the attempts to suppress quoting of the word "nigger," and adds:

SMERCONISH: A quick final question. I think I know the answer, based on what you've said, but I want to hear you say it. Is the race of the speaker, in the context you've identified, irrelevant?

KENNEDY: I think so. If you're making a good point, you're making a good point, whether you're white, black, red, doesn't matter, brown. A good point is a good point. And it would be a terrible thing in American culture if you erected a race line with respect to who can say what.