Free Speech

We Reply to Anonymous Above The Law Columnist's Response to Our "The New Taboo: Quoting Epithets in the Classroom and Beyond"

Above the Law refused to publish our reply, so we're publishing it here.

|

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.

NEXT: Foreign Dictators in U.S. Court, Part V

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. That was not a niggardly response.

    1. Prof. Volokh is ever generous.

    2. You don’t think that the coverage was “slanted”? … Racist!!!

    3. Why the hell did he link to a Google results for “Tuesday”? What the hell was the point?

      1. My phone will turn the name of a day in a text message to a link. It’s some weird autoformatting shit.

      2. Yeah, I wasn’t sure about that, but I felt that “Tuesday” as a generic term for any old ordinary day was enough of a cliche that I thought I’d show that it actually was a Tuesday. (I’d have preferred that it was Thursday!) But maybe I was wrong.

      3. I was 100% sure that the link was to M. Bison’s famous utterance about Tuesdays and was shocked it was something else.

        https://www.youtube.com/watch?v=sjZ5I8l32CI

  2. They are more upset that you accurately represented something, and didn’t change the context or the meaning, and that you didn’t prostrate yourself enough before the discussion. Context, overall argument, and logic progression doesn’t matter tk most people now adays

  3. Everything must be memory-holed.

    1. What were we talking about. I forgot…

  4. Retards.
    The Retards (Seattle) – Fallout Records Galleryhttp://www.falloutrecords.com › gallery › retards

    1. 1998. Way WAY different time. 1998 is like 1764 in terms of cultural movement in this country.

  5. I am reminded of a professor of English Lit who went about removing the N-word from Huckleberry Finn.

    He was less successful in removing the synthesizers from Tom Sawyer

    1. Definitely a modern-day warrior

      1. He had a mean, mead stride? In like Rush, YYZ is a great jam.

  6. The primary purpose of progressive journalism is to create a world in which the use of such words is socially unacceptable. They do not intend to inform their readers so much as they intend to both indoctrinate the public and set an example for appropriate behavior. Meanwhile, they generally hold the general public in contempt.

    The general public is not only sexist, homophobic, xenophobic, and racist, in the progressive mind, but also stupid. The general public can’t be expected to differentiate between the proper use and the improper use of a term like that. This is why it’s necessary to make an example of anyone using the term at all. The possibility of excuses must be eliminated.

    Whether the way you used the word was in any way racist is completely beside the point.

    1. I agree completely, but only if you exclude black people. For progressives, use of the word by blacks is fine.

    2. It’s a standard left-wing trope these days, that absolutely anything they want you do do is just what good manners and ethics demand, so that anybody who doesn’t kneel and do exactly as told is an impolite jerk.

    3. “The primary purpose of progressive journalism is to create a world in which the use of such words is socially unacceptable. ”

      The horror, the horror…

      1. I mean, how dare people think there should be a social convention dismissing this awful word, with all it’s connections and conjurings of the worst stain on our American project, to the dustbin of history…

        1. “social convention dismissing this awful word, with all it’s connections and conjurings of the worst stain on our American project, to the dustbin of history…”

          Glad you agree that much hip hop and rap music should never be played.

      2. That approach makes more sense for religious literature or the publication of some charitable foundation, people who are already true believers, but it’s hard to imagine why the general public would put their money down and subscribe to a publication that holds them in contempt.

        Only a tiny percentage of the people who used to read some of the biggest newspapers in the country became subscribers once those newspapers went behind a paywall. People will read publications that mostly preach to them, but they aren’t likely to pay for the privilege.

        “The Seattle Times and The Dallas Morning News have been able to convert fewer than 1 percent of their formerly nonpaying digital readers into paid subscribers. The figure at The Washington Post, which has the enormous advantage of access to Amazon’s super-efficient payment system, was under 2 percent, and at [ The New York Times under 4 percent.”

        —-NYRB

        https://www.nybooks.com/articles/2020/02/27/can-journalism-be-saved/

        I have a working hypothesis that the general degradation of journalism over the years is largely a consequence of the triumph of advertising over the subscription model. And it isn’t just that advertisers are more sensitive to controversy than the general public. People don’t generally patronize restaurants that hold their customers in contempt either.

        I have high hopes for Substack.

    4. Gosh, such an original, unique point of view, it’s not at all like you’re parroting the same exact thing that thousands of other people are saying, gleaned from your own sector of the media-sphere…

      1. I’m not sure the implosion of professional journalism standards is as well understood, outside of certain circles on the right, as you seem to imagine, but even if it were, that doesn’t mean my summary is wrong.

        And even if more than enough Americans, of all political persuasions, realize that progressive journalism is no longer about reporting the news fully, fairly, and accurately (as the link below shows), I’m not sure the contempt progressive journalism has for average Americans has been fully digested by everyone.

        https://news.gallup.com/poll/321116/americans-remain-distrustful-mass-media.aspx

        When I ask Democrats in person why so many average Americans think progressives hate them, the answer often morphs into observations about why average Americans should be hated–mostly centered around the criticisms I outlined above. I’m not sure the news media is so casually blunt about their elitism, but maybe they should be.

        1. “Employment in newspaper newsrooms decreased by 45 percent from 2008 to 2017—and by 60 percent from 1990 to 2016 . . . . Newspapers’ paid circulation has declined from 62.5 million in 1968 to 34.7 million in 2016, while the country’s population was increasing by 50 percent. Just between 2007 and 2016, newspapers’ advertising revenue, their major source of income, declined from $45.4 billion to $18.3 billion.”

          https://www.nybooks.com/articles/2020/02/27/can-journalism-be-saved/

          How widely do you think this is understood, and do you think it’s understood properly? As the streaming revolution comes, the same thing is happening to the likes of CNN and MSNBC. As those cable subscriptions drop, so do the carriage fees. How much do CNN and MSNBC make from cable subscribers who don’t or won’t watch their channels? Cost is more than half the reason people drop cable and start streaming.

          The standard explanation for the implosion of journalism as a profession is to blame it all on the internet and social media. That explanation doesn’t account for other similar market disruptions in the past. Why did cable channels thrive, despite the existence of advertising driven, free, broadcast television, before the internet took off? Isn’t it because consumers, at some point, were willing to pay a premium for quality?

          Maybe journalism isn’t only imploding as a profession because of the internet, social media, and changes in advertising. Maybe the reason they’re so susceptible to being overrun by free alternatives online is because they’ve sold their journalistic standards so very short in the name of elitism, and those standards were one of the few reasons their customers were wiling to pay a premium for news.

          The New York Times announced the other week that they’re eliminating their Op-Ed page–because they can’t take the backlash when someone outside the paper writes some heresy under that label. They’re trying the term “Guest Essay” instead. Why should anyone in the general public, who isn’t a practicing progressive, pay to read anything else under the masthead of that newspaper? Why should you believe anything you read there?

          Maybe that’s indicative of what’s wrong with journalism. You can’t use a controversial term–not even to denounce it?

          Why would anyone who isn’t a Scientologist pay to read a newspaper for Scientologists written by the Church of Scientology?

  7. Professor Volokh….Tell us exactly what ATL editors told you when they refused to publish your reply? I mean, did they just flat out refuse to respond to your request, or did they actually send you a response where they refused to publish your reply?

    1. “Please pardon the delayed response. We did see your email, but we generally don’t publish one-off pieces and the instances in which we do are quite rare. I’m afraid we’re going to pass on publishing this. That being the case, if you’d like to publish your response elsewhere, I’d suggest your own well-known blog that’s affiliated with a major magazine. You’d probably generate a bigger response there with a more like-minded audience.”

      Randy’s and my hope, foolish perhaps, was to try to reach out to a non-like-minded audience (as well as the like-minded one), hoping that we could persuade some of them. But I guess that wasn’t on ATL’s agenda.

      (I should say that we here at the VC also generally don’t publish one-off pieces that aren’t replies. But if I sharply criticized someone on this blog, and that person submitted a reply, I would have a very strong presumption in favor of publishing that reply — precisely so that the same people who saw my criticism could see the reply as well.)

      1. That’s really a crappy response.

        1. The response seems reasonable. I mean, where would they be if Prof. Volokh persuaded a substantial portion of their audience?

        2. Revealing though as it misplaces the motivation as trying to reach the like minded. Generally this type of motivation confusion is driven by assuming other people share the motivations of ATL.

        3. That’s a really crappy response.

          And a poorly written one.

          1. It’s a crappy policy. They should publish replies. But if they really treat all replies this way (perhaps out of a concern for the burden of evaluating potential replies?) it’s a perfectly adequate response.

      2. Wow Professor Volokh….That is a total bullshit move on the ATL editors part.

      3. I wouldn’t publish your response, either. It’s overly long, self-indulgent, purple prose, seemingly designed more to raise your profile than to convince minds.

        People who disagree with your particular take aren’t ignorant of the use/mention distinction, as you’ve put it; I think everyone understands the distinction. Where they disagree with you is precisely the point you spend the least time focusing on, which is on what normative approach to take to the “mention” cases. As far as I can tell, from your argument, you address this disagreement by conflating descriptive grammar with prescriptive, and make some hand-wavey argument about shoring up the fortitude of law students as though they will emerge from law school as snowflakes, unless they are allowed to freely “mention” racial epithets at will.

        Don’t get me wrong – I’m on your side on this. I would go further than you have, in fact, in noting that this strange campaign against even mentioning certain words – itself not a real hindrance on our ability to engage in substantive debate – is sure to slide into other areas. It is only a matter of time, in other words, until simply asking whether we can responsibly mention a racial epithet will itself be some kind of out of bounds remark. As in, “How dare you re-litigate this question that has been completely settled, etc.”

        But this series of posts, by someone blithely describing himself as the leading scholar on this question, as well as your huffy note about ATL having the audacity of not running your response upon demand… I am not feeling much sympathy.

  8. Look, we may not agree with this, but the cultural norms have changed and it is no longer socially acceptable to even mention certain words. This has nothing to do with free speech, just like the social norm that you should not bring up your masturbation habits in a first conversation has nothing to do with free speech.

  9. Do you know who else doesn’t recognize the use-mention distinction? The FCC.

  10. I would imagine a similar distinction would apply to the redacted slur itself. Presumably most people are OK with a professor using the term “n-word” to refer to the slur, (although after the Kilborn affair this is questionable) but can’t imagine people would be OK with a professor calling a student an “n-word”.

  11. This is some near Gorsuch-level self-congratulatory cuteness/smugness here…

  12. The use/mention distinction certainly *can* do the work described here but it also nearly as certainly doesn’t *necessarily* and *always* do it. Anyone who thinks otherwise has never been in the situation of, say, being asked by their grandma to relate a string of epithets another driver hurled at them that grandma didn’t exactly catch. That feeling of wanting to use euphemisms at that moment** is like C.S. Lewis’ noted feeling that you should give up your seat on the subway, it’s indicative of something morally real.

    ** since this is the internet someone is almost duty bound to reply ‘my grandma loved cursing.’ To such a pedant, ok, sure, but then imagine one that didn’t, because I assure they exist[ed].

    1. I don’t think the use-mention distinction does all the work in the sense you describe, and also because (and this is the one legitimate point the ATL piece makes) some people would love to abuse the distinction as a free pass to say the n-word all the time for shock value.

      However, the use-mention distinction still does MOST of the work. I.e., there are many pedagogical situations where it is a legitimate choice to say the word, and as long as there isn’t bad faith or gratuitousness on the part of the speaker, people should understand when it is being mentioned rather than used and not pretend that the distinction does not exist.

      1. The author of the piece bizarrely seems to think that there are law professors just itching to go around using the n-word¹ publicly, and since these professors can’t they are maliciously finding as many cases as possible that mention the n-word as kind of a consolation prize.

        ¹I’ll say it when necessary, but I don’t think it is here.

        1. Let’s put it this way. I know people who like to quote shocking things (including, e.g., rap lyrics) for shock value. The phenomenon is not unknown.

          But a simple principle of “don’t be a douche about over-mentioning the n-word” can deal with that situation.

          1. (And by the way, congratulations on figuring out how to put a footnote in a comment!)

    2. It seems like the use-mention distinction is overthinking it. The distinction should be, don’t use the word to insult black people.

    3. “wanting to use euphemisms at that moment”

      How about “I didn’t catch them either Grandma”?

  13. Prohibitions against an uncertain collection of undesirable words and thoughts are now commonplace. For example, by fourth grade, students are expected to identify “hate speech” and are expected to be able to successfully quash such speech.

    Behold the Virginia Social Emotional Learning Standards: https://townhall.virginia.gov/L/GetFile.cfm?File=C%3A%5CTownHall%5Cdocroot%5CGuidanceDocs_Proposed%5C201%5CGDoc_DOE_4780_20210329.pdf&fbclid=IwAR2s_NE00XPl6yJ9lrhv96tAJALzARC1Ex0IaXXmCfTIGX0APAVFH30tZDk

  14. There is a much more obvious issue here.

    The authors of the more recent ATL article are racist, indeed racists of the worst sort. They wrote the article solely for racist purposes. They cannot possibly deny that they are and expect to be seriously be believed.

    You cannot argue that even indirect mention of a word is racist without being held to full accoont by your own indirect mention of the word in the act of referring to it, which cannot but conjure up the word in the reader or listener’s mond. By the argument’s own logic, anything a speaker does that tends to result in the word arising in the reader’s mind cannot have been done for anything other than racist purposes and is itself objectively racist.

    It is as Wittgenstein concluded at the end of Tractatus Logico-Philosophicus in addressing the implications of the problem of self-reference, (which theis issue is a species of):

    “That of which we cannot speak, we must pass over in silence.”

    The author of the ATL did not pass over the unspeakable in silence. He attempted to refer to it. Therefore, he is a racist. He needs to be denounced as such.

    Only people who don’t believe the argument that speaking about a racist word itself communicates racist intent, can believe their speaking about the word doesn’t communicate racist intent.

    The idea that using a less direct reference somehow avoids the problem is patently rediculous. If you make an utterance that tends to conjure up the word in the listener’s head, you have deliberately influcted trauma on the listener. And you are a racist.

    If you don’t want to be called on your racism, you need to shut up. You can’t participate in any debate. If you really believe something is unspeakable, you cannot discuss it. As Wittgenstein said, your only option is silence.

    1. That is, the ATL author cannot hide from the consequences of his racism by claiming he was talking about racism. He was talking racism. He wasn’t mentioning racism. He was using it. In disclaiming the use-mention distinction, he necessarily disclaimed its applicability to him. So he cannot rely on it to protect him from the obvious, inevitable consequences a listener must draw from his own speech.

  15. You must have spooked them.

  16. Why are adults so sensitive? When I was a kid we were ruthless in our teasing, but the expression “sticks and stones may break my bones but words may never hurt me” reminded us of a comforting aspiration that can be willed into existence. More people should aim for this rather than to impose their own sensitivities on others.

  17. The idea that individuals are damaged by these incidents have been weaponized to silence people who don’t to the ideological line.

    If these activists are to be believed some groups are constantly bombarded by these references so that the mere mention of what is alleged to be a common occurrence is traumatizing.

  18. 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

    What’s particularly puzzling is that after making this absurd claim — actually, a tendentious one, because there is no “recipient” of a mention, as opposed to a use — he then goes on to talk about how sophisticated students actually are and how they understand that context matters. But that’s all the use-mention distinction is — the notion that context matters.

  19. I’m increasingly taking the position that any word is protected and can be used anywhere at any time.

    Censoring words means censoring thoughts….

  20. If the mere utterance of the word causes black listeners to suffer pain regardless of context, then the use of the word in rap music should be banned. But instead the use of the word in rap music is thriving and celebrated (as, for example, in a rap song called “WAP” that the NYTimes celebrated as though it were a newly-discovered Mozart aria).

  21. From this post:

    “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).”

    From the original ATL post:

    “The authors argue that law professors should not be penalized for uttering slurs such as the article’s favorite, “the N-word, (what Kennedy calls the “Atomic Bomb” of racial slurs).”

    something something context matters…

  22. In for a penny, in for a pound:

    !! NSFW NSFW NSFW !!

    https://www.youtube.com/watch?v=IxsZN8_l7cc

  23. Lawprofblog asserts that (s)he has “more faith in our students’ ability to read context” than Kennedy and Volokh. Quite obviously, (s)he does not.

  24. There once was a professor named Mellish,
    who used the n-word with relish;
    When the dean was informed,
    his visage became forlorn,
    as he predicted the result would be hellish.

  25. The last couple times I heard the n-word, it was because someone had their car stereo loudly playing a song in which the word was employed. So nice to share their music with the world!

  26. ATL continues to publish Elie Mystal, who is one of the biggest racists this country has at the moment. That thing would make David Duke blush.

    And apparently ATL found time to publish a one off response by Mystal.
    https://abovethelaw.com/2021/05/n-word-ipsa-loquitur/amp/?__twitter_impression=true

  27. But your own argument proves too much.

    As your first ATL example shows this response is highly contextual so just because someone has the response in a classroom doesn’t mean they’ll have it reviewing trial transcripts. Indeed, the very fact your arg hasn’t inspired the proponents of the ban to be much more aggressive in court cases about expurgiation proves the point.

    Ok so now when you say:. “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.” it seems to follow that (given its only a slight harm as it won’t really stop anyone from dealing with word in court or depositions) at some point the costs of all that hurt thx to the embraced feeling overwhelms the benefits.

    I don’t like the shift but once a norm gets established enough refusing to comply often just hurts people.

  28. Mystal’s response amounts to gaslighting. He says that he didn’t see the column with the word, but insists that it was “an error.” If he didn’t see it, how does he know that it was an error?

    More likely, it was just what it appeared to be, a historical quotation that nobody at the time thought was a big deal.

  29. The use-mention distinction is not some grand insight. Of course there is a difference between hurling an epithet and clinically discussing one. Punishing a faculty member for clinical use of an epithet is a breach of academic freedom.

    On the other hand, the novel claim here—that we all have a pedagogical duty to expose students to epithets indiscriminately in our classrooms in order to prepare them for the practice of law is self-indulgent drivel, akin to claiming that we need to force students to look at photographs of brutal rapes or murders in case they end up representing a defendant charged with committing one and have to see horrific photos. As a former management-side employment lawyer, I’ve certainly encountered epithets in the facts of cases. Dealing with them maturely and professionally never required parading around the office “mentioning” them indiscriminately to make sure everyone was properly “desensitized” to their ugly force and as unmoved by them as hearing the word “sky.” The authors trying to present indiscriminate “mention” of epithets in the classroom as pedagogical heroism and avoidance of them as dubious teaching is absurdly biased and self-serving.

    And as a “f——t” myself, I can assure the authors that I hardly need a preening heterosexual getting off on “mentioning” this epithet in their classrooms to have experience dealing with it. Make yourself feel faux radical chic by demeaning your own identities for the thrill of taboo breaking, because that’s what this duty to “mention” nonsense is about. I’ll
    Also tell you that if a colleague of mine indiscriminately “mentions” anti-gay slurs in my presence thinking himself carrying out some duty to “desensitize” me, he’d quickly find himself told to learn some decency and respect and to get his arrogance out of my face.

    What a nice illustration of why libertarianism struggles to reach beyond its privileged base. Let’s hear more hooting for repeal of the Civil Rights Act of 1964 too! It’s all of a piece.

    1. This is not a libertarian blog. This is not an “often libertarian” blog. This is not a “libertarianish” blog. It is a movement conservative blog with a receding academic veneer.

      The sole libertarian among the Conspirators is reviled by this blog’s fans.

  30. ” 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. ”

    Prof. Volokh regularly — sometimes weekly — declines to remove vile racial slurs from the comments section of his blog (although he removes other content from the comments, customarily when content is inconvenient to movement conservativism), few to none of which comments are “quoting legal sources” when using that vile racial slur.

    Attempts to hide ‘we are merely defending the right to quote from original sources’ are unconvincing and silly.

Please to post comments