The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Less than two years ago, Above The Law ran an interesting column titled, "The Case for Legalizing All Drugs." That column contained the following passage:
When studying the history of prohibition, author Johann Hari discovered that it came about in the middle of a race panic …:
After the Civil War, Reconstruction failed, and what you had were African Americans and Chinese Americans who—rightly—were pissed off….. Many white Americans explained this growing rebelliousness at the start of the 20th century by saying that African Americans and Chinese Americans were forgetting their place, using drugs, and attacking white people….
The official statements are extraordinary. A typical one said, "The cocaine nigger sure is hard to kill." …
Now perhaps some ATL readers and editors viewed that as the day an "atomic bomb" was detonated on this site (to quote the label repeatedly used by the anonymous Lawprofblawg's recent ATL column sharply condemning classroom mentions of the word). Perhaps, like Lawprofblawg, they saw it as the day that the columnist (and the author being quoted) was "attempt[ing] to convey information in the most racist way possible" by accurately quoting an epithet from the historical record.
But we expect that most of them viewed the day as, well, a Tuesday: Just an ordinary day on which someone was engaged in the ordinary activity of accurately quoting a source for the sake of a precise and serious discussion of an important subject.
That is because, much as some might denounce it, the use-mention distinction is fundamental to the way communication operates (so fundamental that we often apply it subconsciously). Lawprofblawg asserts that, "The use-mention distinction is a quaint argument for the side of the utterer, but it means absolutely nothing to the recipient"—but of course the distinction doubtless meant a great deal to readers of the column we quote. If an ATL columnist had used a racial epithet to insult the columnist's political adversary, we expect readers and editors would indeed have been quite upset. (When one of us referred to the "atomic bomb of racial epithets," it was a reference to such uses of the word as an insult.) But the mention of the epithet, to our knowledge, rightly yielded no reaction, on this occasion or on others when ATL posts mentioned the epithet.
Nor is Above The Law unusual in this respect. As our article on the subject noted (pp. 12-14 & 24-25), the use-mention distinction has been routinely, likely even subconsciously, relied on by judges, lawyers, and law professors in literally tens of thousands of opinions, briefs, and articles. The distinction has been relied on in opinions by some of the nation's most respected judges, of all ideological stripes. It has been relied on in articles by many of our eminent academic colleagues, of all races, at both of our institutions. We suspect it has likely been relied on in articles by some of Lawprofblawg's esteemed colleagues, whatever institution he might happen to teach at.
It has likewise been routinely relied on by judges, lawyers, and witnesses speaking in courtrooms, depositions, and the like, in thousands of cases. Lawprofblawg insists that slurs shouldn't be quoted when authors can use "less offensive alternative[s]." But in all or nearly all of these situations, the judge, lawyer, witness, professor, or ATL columnist could have expurgated the word—they just concluded that accurate quoting is better than expurgation (rightly so, we think).
And of course the use-mention distinction is likewise routine in other contexts, such as the law school classroom: Compare (1) a professor noting that Justice Holmes had said, in Buck v. Bell, "three generations of imbeciles are enough"—a commonplace and unremarkable mention of a notorious quote—with (2) a professor calling a student an "imbecile," which likely would be condemned as an unprofessional use.
The same is true with racial insults as well. We haven't (yet) heard much call for expurgating class mentions of the trademark at the heart of the 2017 Matal v. Tam Supreme Court case (The Slants, the name of a band whose albums include, for instance, Slanted Eyes, Slanted Hearts). But if a professor used the word by saying to some Asian students, "Hey, you slants [or slant-eyes], you're whispering to each other too loudly," people would rightly condemn that.
Our article takes the view that this basic principle (mentions fine, uses as insults bad) has no peculiar exception for (1) professors and perhaps students (2) in the classroom and perhaps law school hallways quoting sources containing (3) the words "nigger" and "fag"—just as it has no exception for ATL columnists, judges, lawyers, or witnesses, or for law professors writing law review articles. (We infer that Lawprofblawg would apparently further narrow this exception just to (4) "white" professors, an adjective he thought worth noting seven times in his article; but we think there should be no such exception, regardless of the speaker's color.) Likewise, we take the view that students in the classroom are just as capable of distinguishing uses from mentions as they are when they read opinions, law review articles, or Above The Law columns.
Now we are of course aware that some people, of all racial groups, do argue for such an exception. Again, as best we can tell, they are completely comfortable with the use-mention dichotomy in most situations (even if they don't expressly think of it using the label "the use-mention dichotomy"). But they would have a special rule for classroom mentions of this one particular word, or perhaps of these two words, or sometimes at classroom mentions of racial or anti-gay epithets more broadly.
Our argument is that this is a demand that legal educators should be resisting, rather than enthusiastically embracing or even reluctantly succumbing to. When they graduate, our students will be expected, in a wide range of cases (see pp. 40-42 of our article), to read and hear—and sometimes write and say—these words. The more we view the words as taboo in the law school classroom, the more we reinforce an attitude that will leave our students less prepared to deal with them in practice.
One day, a client may call a newly minted lawyer and say, "I need your help; my son is black, and kids at school keep calling him 'nigger' but the school isn't doing anything about it." The lawyer's reaction shouldn't be, "How dare you say such a word in my hearing?," or even a silent "I'm so upset at my client."
Rather, it should be to calmly help the client, even recognizing that the epithet will doubtless be mentioned many times in the case in interviews, depositions, and the like. Indeed, at least some of the time, if a witness says in a deposition, "John called Mary an 'n-word,'" the lawyer might need to tell the witness, "I realize this might be upsetting, but could you please be more specific about what exactly John said?" (For a few examples of what happens when lawyers are vague on such matters, or let witnesses be vague on such matters, see note 73 of our article.) Teaching law students that the word is taboo will make it harder for students to serve the client well in such a situation.
As we argued in the article, we think that feelings of hurt aren't unchangeable givens, untouched and untouchable by the ways in which their expression is received. Such feelings are, at least in part, affected by the responses of observers.
The more that law schools validate the idea that it's justifiable to feel hurt simply because one hears words quoted from a case, the more the feeling will be embraced, and the more there will be demands to avoid such words. On the other hand, if we tell students that they ought not feel hurt when a term is being mentioned when accurately describing a case—just as respected judges routinely mention it in their opinions for the sake of accuracy, and just as ATL columns do the same—then we can better help them deal with these and other difficult facts calmly, the way one expects effective lawyers to do.
Of course, this is just a sketch of our argument, which our article develops in much more detail, and with much more evidence. We hope readers will find the article interesting; and we hope it will help them to decide for themselves whether professors and students in law school classes may freely discuss court opinions and court filings, without expurgation—or whether some things that are said in the courtroom can't be said in the classroom.