Free Speech

"The New Taboo: Quoting Epithets in the Classroom and Beyond" Now Published

The article is co-written by Prof. Randall Kennedy (Harvard), a leading scholar of race and the law, and me.

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It's at 49 Capital University Law Review 1, and you can read it here. A short excerpt that captures the heart of our affirmative argument:

The question of how legal discussions should deal with fact patterns that include epithets is not, of course, original to law schools. Rather, it has long arisen in the profession for which law schools train their students. We might, then, ask: How do lawyers and judges deal with this question?

The answer, it turns out, is that they routinely quote the epithets literally and precisely, without euphemisms or expurgation. A Westlaw query for nigger & date(aft 1/1/2000) finds over 9,500 Westlaw-accessible opinions (including cases, trial court orders, and administrative decisions). And that does not include the nearly 5,000 such opinions from before 2000, plus whatever is present in the vast set of trial court orders that don't appear on Westlaw. A search for (nigga niggaz) & date(aft 1/1/2000) finds over 2,300 opinions. A similar search for "fag" yields over 3,000 references, though a few of those are false positives.

Nor is this a reflection of some special callousness towards these two epithets; courts also accurately quote other epithets. To give just one illustration, the word "cunt" appears in over 1,500 Westlaw-accessible opinions, over 3,500 appellate briefs and trial court filings, and over 650 law review articles. Unsurprisingly, these documents are written by both male and female authors; just to take as a sample the dozen most recent authored federal appellate opinions containing this word, five were written by women and seven by men—not far removed from the general female/male ratio on the federal appellate bench.

This is not a sign, we think, that judges are generally vulgar or sexist. We expect many of them would never use the word as an epithet themselves, orally or in writing; but when the word is part of the record, they quote it. They insist on accuracy and directness much more than do newspapers: searching through Lexis's Major U.S. Newspapers database (which archives articles in 48 major newspapers) reveals exactly one quotation of "cunt," in a 2009 article from the music calendar section of the San Antonio Express News, as part of the name of a "hardcore death metal band."

We see the same for other vulgarisms of the sort that newspapers view as  "unprintable." Consider this for comparison: the word "motherfucker" and its variants have never appeared in the print editions of 38 out of the 48 major United States newspapers; in the remaining ten, it appeared only sixteen times put together. But it has appeared in over 10,000 Westlaw-accessible opinions, including six from the United States Supreme Court (dating back to 1974) and over 500 from federal appellate courts. Judges seem to value direct and accurate quoting. [Further details omitted. -EV] …

These are serious, thoughtful judges, many of them liberal luminaries. It is worth considering that they might have made a sound decision in quoting the words fully and accurately.

Now the judges rarely explain why they made such a decision, but we think we can plausibly infer two things:

1. They likely concluded that, in legal matters, direct and accurate reporting of the facts is a key facet of rendering justice, even when an expurgated version or an indirect description would convey much the same information. Thus, for instance,  … People in Interest of R.D. (Colo. 2020) notes, "We reluctantly reproduce this racial slur and other pejorative terms from the record to give an uncensored account of the facts." … And from a 2015 Rhode Island Supreme Court case:

We note that, in the testimony of both troopers, the various epithets allegedly uttered by defendant on the night of his arrest were transcribed without redaction. We have chosen to reproduce their testimony in this opinion in a similarly unbowdlerized fashion because what defendant is alleged to have actually said is so central to the issues on appeal. Unfortunately, many of the words in question are likely to cause real offense to some readers, but we are convinced that an unflinching examination of  defendant's speech is critical to a just analysis of his arguments.

2. The judges also appear to adopt the use-mention distinction …. Though they doubtless think that using an epithet as an insult is wrong, they apparently see it as quite proper to mention it as a fact from the record or in a quote from a precedent (and see it as no serious burden on their audience).

This is well-established as to vulgarities: Though "courts condemn counsel's use of profanity in the courtroom," "courts generally find it permissible for a prosecutor to repeat profanity in argument when the profanity is part of the evidence presented at trial." Similarly, consider In the Matter of Cullins, where the Kansas Supreme Court suspended a trial judge for using vulgarities and epithets—"fuck," "bitch," and "cunt"—and in the process itself quoted the words forty-four, nine, and nine times, respectively, indeed without apologizing for or even remarking on its quotations. The court was apparently drawing a sharp line between a judge saying offensive things, which it was punishing, and a judge quoting the words in discussing the facts of the case.

And courts follow the same pattern as to racial slurs. To give one example, consider this sentence from a 2020 [Ninth Circuit] opinion …: "We have considerable difficulty accepting … that, at this time in our history, people who use the word 'nigger' are not racially biased." Surely that's right, but surely the judges did not think this makes them racially biased for including the word, or for quoting it six other times in the opinion. Rather, the judges are again distinguishing mentioning the word (which they apparently view as quite proper) from using it (which they recognize is strong evidence of racial bias).

Naturally, this is just part of the argument (the article is 65 pages long, with lots of further analysis and evidence); other parts deal, among other things, with counterarguments, such as proposed distinctions between written and oral references, proposed distinctions between the classroom and the courtroom, claims about trauma, and more. I hope our readers find it interesting.

NEXT: The American Humanist Association's Withdrawal of a 25-Year-Old Award to Richard Dawkins

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  1. Interesting coincidence that this gets published the same week when the f-word is almost certainly going to ring out against the virtual walls of the Supreme Court.

    1. All PC is case. Zero tolerance for PC. Sue.

      1. I have to start writing the “d word,” as in, “lawyer d word.”

      2. All PC is case.

        All Behar is incoherence.

  2. As a lawyer whose practice is largely composed of discrimination cases, I have often had to use The Word Itself in questioning witnesses about what somebody else said. Witnesses, to their credit, are hesitant to use The Word Itself, so it is often difficult to tell from their testimony whether the person they are testifying about said The Word Itself or some euphemism like “the N-word,” which the witness is more comfortable saying. For obvious reasons, it’s important to get that right.

    1. Indeed; we offer some examples this in n.73:

      Occasionally, attempts to use euphemism or to talk around the subject can be confusing. See, e.g., Bell v. Alvord Unified Sch. Dist., No. EDCV 19 875 JGB (KKx), 2020 WL 5093084, at *2 n.1 (C.D. Cal. June 10, 2020) (“It appears that Plaintiff’s mother assumed that her son’s reference to ‘n word’ was his attempt to avoid repeating the offensive racial slur. Months after the [Complaint] was filed, defense counsel informed Plaintiff’s counsel that the word used was ‘n word’ and not ‘nigga.’ Plaintiff then clarified that he was not using ‘n word’ to avoid saying the word but was repeating what was actually said.”); Dapkus v. Chipotle Mexican Grill, Inc., No. 15 C 6395, 2017 WL 36448, at *5 (N.D. Ill. Jan. 4, 2017) (“In addition, Chipotle’s inability to point to uncontroverted evidence that Dapkus used the term ‘nigger,’ and not only ‘nigga,’ is significant given the parties’ agreement that the former term, regardless of situation, carries an extremely negative connotation because of its history. Rather, much of the evidence that Chipotle relies upon is testimony from other employees that Dapkus used the ‘N’ word. However, the employees are never asked to specify which term the ‘N word’ refers to . . . .”); Horn v. Mesa Well Servicing, L.P., No. 15 CV 0329 SMV/CG, 2016 WL 9777359, at *6 (D.N.M. June 8, 2016) (noting the ambiguity created by a question such as “‘[Do] the people around you use that kind of language,’ without making clear exactly what ‘that kind of language’ referred to”); Barrow v. Living Word Church, No. 3:15 CV 341, 2016 WL 2619754, at *4 (S.D. Ohio May 5, 2016) (noting that plaintiff’s allegation that coworkers had described Al Sharpton “with a racial epithet” were ambiguous, because it is unclear “what the racial epithet spoken of Reverend Sharpton was”); Verified Petition Exhibit B, Gordon v. City of New York, No. 1:15-cv-05761-KAM-RER, at 12 (E.D.N.Y. Oct. 6, 2015) (noting that “[t]here is confusion about exactly what the Respondent said,” partly “generated by the use of the euphemisms ‘f word’ and ‘n word’”); Baptistas Bakery, Inc. & Teamsters Local Union No. 344 Sales & Serv. Indus., 352 NLRB 547, at **32 n.71 (2008) (“It’s not clear from the record if McCall here, used the actual slur ‘nigger,’ or used the euphemism, ‘the N word.’ I had asked the witnesses not to burden the record by continuously using the slur after the first use, and it’s unclear whether Blanquel, in his testimony, was simply following my instructions or accurately quoting McCall.”).

      1. This strikes me as actually the strongest reason to use the terms.

        1. In a court case, there’s also an issue of persuasion. The most famous example of this was Mel Nimmer saying the actual f-word to start his argument in Cohen v. California, thereby making clear to the Court that there was nothing mystical or taboo about his client saying it on his jacket.

          But with respect to the unexpurgated n-word, for instance, F. Lee Bailey used it, a lot, during the OJ Simpson trial. Bailey wanted the jury to hear it, and to feel the shock of hearing it, so they would associate it with Mark Fuhrman. And that’s just good advocacy. It doesn’t pack the same punch to just say “Fuhrman used the n-word” or “Fuhrman used racial epithets” (the language the prosecution preferred).

          1. True story. I was cross-examining someone who claimed that a black state trooper punched him without provocation, though he admittedly used the unexpurgated term “n****r.” He felt compelled to explain that he did not actually call the trooper a n ****r; rather, he said, “Why are you acting like a n****r?” Violating the “rules” of cross-examination, I encouraged him to explain the distinction, which he obligingly did. It seems there are black people who aren’t n****rs and black people who are n****rs, depending on how they act. He also claimed that the mild-mannered trooper, who is a deacon at his local church, called him a m**********r. The sort of thing a n****r would say. I was quite confident that the jury would not believe that, and I used it, and the unexpurgated N-word, in summation.
            The jury hung and someone else re-tried the case. But it was the third hung jury I had gotten in a little over a year, earning me a nickname I cherish to this day.

      2. This is a good review of how PC is case.

  3. The data for the newspapers is really interesting. I imagine journalists have an equivalent passion to truthfully and accurately reporting things, yet they do not use these words, and I’m sure they also understand the use-mention distinction.

    1. I stopped counting how many news articles I read that boil down to “somebody said something offensive” with no details about what was said. Reporters can describe rape or murder but they can’t describe words.

      1. About a month ago a basketball player named Meyers Leonard got into some trouble for using an anti-semitic slur while online video gaming. Oddly, press coverage had no trouble printing the slur, but wouldn’t use the vulgarity around it:

        https://twitter.com/MasonGinsberg/status/1369386329264582659?s=20

    2. You imagine incorrectly. The ideal of ‘objective journalism’ has been out of fashion for coming up on 50 years now. Most date it to the rise of the Columbia School of journalism, though some date it to Noam Chomsky’s papers.

      1. You might disagree that the end result is accurate and truthful but do you really think that the people who decide to go into journalism have a passion for (or think they are into) truthful and accurate reporting?

        1. My experience is that peeps who decide to go into anything have no idea what they are getting into. Back when I was on active duty I got to be friends with a one star who taught at the War College and he made the comment the only war where peeps knew what they were fighting for was the Trojan War where they were fighting for Helen of Troy.

        2. No, my opinions about the end result are irrelevant. The evidence is really clear. Just read any of the many, many articles in the Columbia Journalism Review on the topic of objectivity. Most are on the theme that objectivity is either impossible or a lie. They reject the very idea of objectivity as a goal.

          To your related question, it doesn’t matter much what the students want or believe when they decide to go into journalism – they get indoctrinated in the profession. That’s not a criticism, by the way. Every profession indoctrinates its students to some degree. Most such indoctrination is good for both the profession and the professional. The decision to jettison objectivity, however, may be good for journalism but it’s bad for society.

      2. The alleged ideal of ‘objective’ journalism was a lie from the beginning.

        1. Journalists have a Code of Ethics. It requires writing all sides of a story. Violations of it are negligence per se.

          1. Journalists have a Code of Ethics.

            No.

            It requires writing all sides of a story.

            No.

            Violations of it are negligence per se.

            Also no. You hit the trifecta!

        2. Objective journalism doesn’t require objective journalists, nor does it require journalists to remain silent on their own opinion. The problem is journalists who present their biased opinions as fact, and proclaim themselves to be the unbiased arbiter of truth.

  4. This argument would be easier to take serious without this blog’s record of publishing vile racial slurs outside the context of quoting epithets from original sources.

    This blog’s vivid record with respect to viewpoint-driven discrimination — removing “c_p succ_r” and banning “sl@ck-j@w” — doesn’t help, either.

    Carry on, conservatives . . .

    1. That’s ridiculous. Prof. Volokh co-authored a scholarly paper full of strong reasoning and copious citations with a highly regarded Harvard professor, in a significant (albeit second tier) law review.

      And you think people aren’t going to take it seriously because you have some meaningless, far-back gripe about a blog commenting policy?

      You should seriously consider getting help.

      1. The record of this blog and of its proprietor in this respect speaks for itself, and includes repeated use of a vile racial slur, sometimes in a gratuitous manner that ranges far beyond ‘quotation of a case.’

        The UCLA law dean can confirm this point. A robust search function would establish the point to a degree only Volokh Conspiracy fans — who tend to favor conspiracy theories, superstition, and nonsensical right-wing dogma at the expense of reason, evidence, and the reality-based world — would attempt to contest.

        Carry on, clingers.

  5. Interesting but, while I think you make a good case that ppl ideally shouldn’t be offended by expurgated uses I don’t think you make much of a case that there would be much if any harm if such words weren’t used in law classes.

    Yes, law students must be ready to deal with these words in unexpurgated form in legal cases but c’mon we don’t really believe them when they claim to be so shocked they can’t continue or think. We know that’s largely performative and that they’ll be able to operate perfectly fine when they hear those words.

    Ok, but if that is the case and it really doesn’t matter practically isn’t there a decent case for avoiding such words merely on the grounds that doing so is a kind of signal of respect (most rules about offense are largely arbitrary and we might imagine each group gets to distribute it’s offense points as it chooses up to a certain level of imposition on others) or just on the pragmatic ground that if you don’t then the students tutting and potentially protesting just isn’t worth the bother in this case?

    My sense in reading the piece was you gave lots of reasons why arguments given that you shouldn’t use such words in the classroom are bad but didn’t back up the idea that not using them would actually create harm much at all.

  6. Hot off the presses, a long running dispute under the name _Brookline v. Alston_ (https://www.mass.gov/files/documents/2021/04/27/f12974.pdf) where somebody accidentally left a message transcribed as “fucking n—-r” on a black coworker’s voicemail.

    The caption caught my attention because Allston (extra l) is an unincorporated neighborhood of Boston next to Brooklike and I thought this was some sort of inter-municipal dispute.

  7. “The article is co-written by Prof. Randall Kennedy (Harvard), a leading scholar of race and the law, and me….”

    A leading scholar of you? Does that qualify as logrolling? 🙂

    1. Comma, man! I put in the comma!

      1. Never let grammar/linguistic facts get in the way of a bad joke.

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