Free Speech

Prof. Randall Kennedy (Harvard Law) on CNN About Accurately Quoting Racial Epithets


Watch the video here (or here, if that doesn't work). You can also read Prof. Kennedy's open letter to Harvard and Stanford Law School professors which articulates many of the same points; Prof. Kennedy of course has literally written the book on the subject, Nigger: The Strange Career of a Troublesome Word. The CNN exchange, by the way, closes with this:

[Host Michael Smerconish]: … Is the race of the speaker, in the context you've identified, irrelevant?

[Prof. 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.

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  1. I find the notion that blind people should have to confirm the speaker’s skin color before they decide whether or not they are offended patently absurd.

    1. On this blog’s Facebook page, commenter Mark Thompson wrote, “Unfortunately there are too few Randall Kennedys left.” This reminded of something — of course, not entirely on point — from the great Russian poet and singer-songwriter Bulat Okudzhava (who acquired a reputation, I think, as an honest man):

      Настоящих людей так немного!
      Все вы врете, что век их настал.
      Посчитайте и честно и строго,
      Сколько будет на каждый квартал.

      Настоящих людей очень мало:
      На планету – совсем ерунда,
      На Россию – одна моя мама.
      Только что она может одна?

      A very rough translation (“Настоящих людей” may literally seam like “real people,” but I think that phrase generally means “honest people” or “people of integrity”):

      Honest people are so rare!
      You all lie that their age has arrived.
      Count candidly and precisely
      How many are alloted for each block.

      Of honest people, there are very few:
      On the planet—barely any at all,
      In Russia—only my mother.
      And what can she do by herself?

  2. It’s unfortunate that so much time needs to spent on what is fairly common-sense. In a professional or academic setting, in context, the use of the word is clearly not offensive except to those predisposed to offense or not comprehending the context & purpose of debate. Everyone has a hot button issue or two, ideally in the circumstances I described, people do not try to restrict the ability of the group or facilitator to debate. That said, it does seem a large portion of students and folks arguing tend to be unable to control amagdylaic reaction, and never make it to rational thinking on many subjects. Beyond that, it’s asinine to assume that post-industrial societies will move past racial animus if they continue to racist history, refuse to honestly and openly speak about racial epithets.

  3. I’m not black, so I’m aware I can’t truly imagine the effect of hearing the word. If I were teaching, I would try to avoid the word as often as possible (by saying “the N-word” instead). Now there are contexts where that would not make sense or would seem very clumsy. For example, many direct quotes, and I assume the MLK, Jr. letter that the professor (forget which school) was reading from. I don’t think the word should be absolutely forbidden in an academic setting. But most times, I imagine saying “the N-word” or “racial slur” would be sufficient, and thus the kinder choice. If I’m teaching the First Amendment or Crim. Pro., and m simply describing a prosecution involving a hate crime allegation, or whether certain words are protected by the 1A from censorship, what is lost by me telling the class that the defendant (or the plaintiff in a 1A lawsuit), “said ‘the N-word’”? A class of law students will know that the defendant said the actual bad word, without me having to say it (and like curse words, I’d absolutely prefer not to say the word unless absolutely necessary). That’s my feelings on the subject anyways.

    1. Nick Gillespie’s Jacket is most certainly black.

      1. Ha! Got me there, lol.

    2. Nick Gillespie’s Jacket: I appreciate your argument, but let me try to offer an analogy — imperfect as all analogies, but I hope one that might be similar enough to be helpful.

      Let’s say that there are some people in your history class who are children of Holocaust survivors — perhaps this is 1960, when that time was still fresher, and indeed where anti-Semitism was probably more common, at least in some places in the U.S. And let’s say they tell you that they are horribly offended even by mention of, say, Nazis or Auschwitz. Again, not a perfect analogy: They’re not offended not by hearing an anti-Semitic insult, but rather by hearing the name of a group of people who murdered six million Jews, or by the name of a place that had become synonymous with mass murder of Jews. They ask you to say “N-word” instead of “Nazi” (or perhaps “N-Z-word,” to avoid ambiguity), or perhaps “Au-place” instead of “Auschwitz.”

      The trouble is that every so often in your history class, there is some mention of Nazis or Auschwitz. Do you try to avoid those words as often as possible, or say “N-word” and “Au-place,” as asked, on theory that “what is lost by” such expurgation? Or do you say, “I understand why you’re upset by hearing these words, but this is a history class, and we need to talk about things as they are, even when those things are offensive to all decent people”?

      (I actually think that, in law school, accurate quotation is especially important because that is in fact the standard practice in court cases, briefs, law review articles, and more; but let’s set that aside for now, and just focus on history.)

      1. Why were “cop succor” and “slack-jaw” such triggers?

        1. New week, same stupid Artie.

      2. To be clear, I do not think it should be against school rules to use the actual word. I’m just talking about what I think I would do if I were a professor. I’m not sure your analogy works though, at least for me, because a slur that is hurled against a person seems different to me than the mere mention of an evil group like the Nazis. But to be honest, maybe the N word is just unique, especially in this country. I think I would find it easier (but still not easy) to quote a different ethnic slur if context seemed to required it (a slur against the Chinese, or Puerto Ricans, for example) rather than the N word. That one seems particularly offensive to me, and I assume it’s because of the unique history of discrimination and violence associated with the use of that word in this country. Not sure if this makes sense, but that’s my gut reaction at least.

        1. Got it, and thanks for the response. But recall that in these situations we’re talking about mentioning a slur hurled against a person (a person far outside the class, and sometimes outside the students’ lifetimes), not actually hurling the slur at any particular student (or anyone else).

          Why is mentioning a slur hurled against a person, even a racist slur, worse than mentioning the Nazis, who murdered millions of Jews, or mentioning death camps that are known for being places where hundreds of thousands of Jews were murdered? If the objection is that it brings up in listeners’ minds their knowledge of violent hostility against their groups (even if it’s just a mention), why couldn’t the same be said about Auschwitz?

          1. Please, don’t give them ideas.

          2. I try to avoid the word because I hate it.

            But I do think the pedagogical argument Prof. Volokh is making is worthwhile. Indeed, there are situations where I would feel I had to say it too, such as if it was an issue in a court case.

            1. Let me pipe up to agree.
              In HS my (white) history teacher talked about how threatening Col. Robert Gould Shaw and armed blacks were to the Confederacy in a post Glory discussion, saying how the Confederacy refused to send Shaw’s body back, saying ‘bury him with his niggers.’

              Dunno if the quote was true, but sticks with me to this day.

    3. I’m not black, so I’m aware I can’t truly imagine the effect of hearing the word.

      Then you’ve never seen the audience reactions at a classic Richard Pryor stand-up routine. It’s amazing how well they hide their anguish at the mere utterance of the word, putting on brave faces and disguising the pain by responding with uproarious laughter. The tears are a dead giveaway though.

  4. “And it would be a terrible thing in American culture if you erected a race line with respect to who can say what.”
    Wonder where the Prof. has lived for the past few decades?

  5. A local businessman just lost a major contract for asking an employee why he couldn’t use that particular word, except he actually used it in his question.

    He makes ice cream. Now he makes a whole lot less.

    You may have heard of it. It was big news.

    1. Why “he” could not use that word? He the business man, or he the employee? Impossible to tell from what you wrote (and I’m unfamiliar with the case, so I have no idea off my my own independent knowledge).

    2. And I’m boycotting the company that isn’t buying it from him anymore.

  6. The answer is clear.

    Whenever a non-African American needs to use “that word” in the context of legal hearings or accurately quoting someone, the person will quote the relevant section up to “that word”

    At that point, the following song will be played: “N.I.*.*.E.R. (The Slave and the Master)” by Nas.

    Then after the offensive word has passed, the quote can be continued.

    In this way, no non-African American need ever utter the forbidden word.

  7. I think we get into some comically dangerous territory when we can’t use a word even when we are criticizing someone by accurately quoting the other person using the word.

  8. In one of their exchanges, professors Glenn Loury and John McWhorter examined the question of whether and when it was appropriate to use the “n-word” in class. Loury mentioned an incident involving Chicago Law Professor Geoffrey Stone who came to Brown University where Loury teaches to give a speech. Stone, Loury explained, used the “n-word” during his speech and later one black female student stood up to complain to Stone.
    Loury said that Stone told her that she didn’t have the right to lecture him on the use of the word and that he would say what he wanted. Pretty tough response.
    But as Paul Harvey would say, here’s the rest of the story. Last year Stone said that after discussing the question of using the word in class with his black students that he decided that he would no longer use it. Stone explained, “My conversation with the African-American students convinced me that the hurt and distraction caused by use of the word in the story are real and to be taken seriously. As a teacher, my goal is to be effective and I decided that use of the word in that story isn’t sufficiently important to justify the hurt and distraction it causes. For me, this is a great example of why free speech is important. It enables us to learn from each other.”
    No word on whether he apologized to the black Brown University student.

    1. Indeed — it’s a subject on which people differ, and on which people change their minds. My view is that of Geoffrey Stone 2015 (and Randall Kennedy 2020) rather than of Geoffrey Stone 2020, in part because I think that by saying “n-word” we’re teaching law students the wrong lesson about how the legal system can be expected to deal with such matters; but of course Prof. Stone, whom I very much respect, has come to take a different view.

      1. A problem may be that your view of how things work in the legal profession may be off, or in danger of becoming wrong soon. There has been much talk the last few weeks how, when people would write off the campus speech codes or censorship by saying “wait till they graduate and enter the real world and the workforce; they’re in for a rude awakening,” what actually happened is those students graduated and made the workplace like their college experience. They forced the workplace to change; the workplace or “real world” didn’t force them to change. As Andrew Sullivan recently tweeted; “We’re all on campus now.”

        So, why the confidence that the legal profession has not changed, or soon will not, similarly change? Is it that hard to imagine that lawyers may soon get fired or sanctioned (or punished by a jury) for writing the N-word out in a brief or saying it in oral argument or closing statement, rather than literally saying “the N-word”? For better or worse, I’m not sure the legal profession is far off from that, if it’s not already there.

        1. Having handled more than a few cases where it’s come up, I do think the legal profession (in the sense of lawyers who actually litigate real cases) is indeed very far off from that. But to the extent that we’re not, I think it’s also worth fending off that day as late as possible, for the reasons Prof. Colophon has described in his prior posts on this subject.

          1. We are pretty far away from it. Indeed, I suspect eventually some of these woke / successor ideology people will find themselves on the other side of some free speech battles and rediscover the importance of it.

      2. EV, I may be wrong, but I get the impression you feel defensive about this matter in a way I haven’t seen you previously on any other. And that includes issues concerning which like the instant one you’ve been personally vilified. Easy for me say, I know, but don’t let it get to you.

        As someone who believes the American Right is on the wrong side of most cultural controversies — including, maybe especially, its support for a president who seems determined to trample every norm of human decency — this is one of the exceptions. It can’t be pleasant to have your motives assailed by people seemingly oblivious to how your position can be reconciled with sensitivity to historical racial injustice. All I can say is, I believe history will vindicate your bona fides in this matter, though I have no idea whether either of us will live to see it.

        Feel better now? (Kidding aside, I hope you find a way to.)

  9. Latest in Boston — they want to tear down a statute of Lincoln that BLACK CITIZENS funded a century ago to celebrate the emancipation proclamation.

    We really are f*cked…..

    1. But what has Lincoln done for black people since then?


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