Free Speech

Recent Developments in Controversies About Quoting Slurs from Court Cases

A CNN story on the Rutgers law school controversy; the settlement agreement in the firing of Central Michigan University professor Tim Boudreau; and the views of Prof. Nadine Strossen, former President of the ACLU.

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[1.] Profs. Adam Scales and Gary Francione from Rutgers Law were on CNN's Michael Smerconish program this morning, explaining why they think that faculty and students need to be able to accurately quote court cases, including when they include slurs—much worth watching, I think. The controversy at Rutgers continues; to my knowledge, the faculty hasn't decided whether to try to institute a policy against such quotes.

[2.] I recently learned about a settlement in the controversy between Tim Boudreau, a Central Michigan University tenured media law professor (and Journalism Department chair) who was fired for accurately quoting "nigger" and "fag" from the opinions in two leading First Amendment cases, and from the record in another leading First Amendment case. I submitted a state Freedom of Information Act request, and got a copy of the settlement agreement.

Prof. Boudreau, who was represented by a lawyer from the Foundation for Individual Rights in Education, withdrew any claims he might have against CMU, retired from CMU (he was apparently eligible for retirement), and in exchange received 10 months' salary and benefits (from Sept. 1, 2020 when he had been fired, to June 30, 2021, the end of this academic year). I think he could well have prevailed had he sued, especially given Sixth Circuit precedent. But litigation is always risky and emotionally draining, and I always understand why people might not want to litigate further. [UPDATE: For FIRE's story about Prof. Boudreau, which goes considerably beyond just this incident, see this post.]

[3.] Connecting the two controversies, here is a letter that Prof. Adam Scales (Rutgers Law School, as noted above), Prof. Nadine Strossen (New York Law School, and former President of the ACLU, 1991-2008), and I sent to the President of CMU arguing in favor of reinstating Prof. Boudreau:

Dear President Davies:

As a black man born in 1922 Detroit, Judge Damon Keith had doubtless been called "nigger" on regrettably many occasions. Yet when he wrote the opinion in Dambrot v. Central Michigan University, Judge Keith mentioned the word 19 times. He could have exclusively used an expurgated version of the word. ("N-word" does appear 10 times in the opinion, and "N word" once, in a quote.) But he chose not to, and we think not by accident.

Rather, Judge Keith likely (1) thought it important to accurately quote the facts, even when the facts include offensive words, and (2) drew a sharp distinction between wrongfully using a word as an insult (or perhaps even as an odd compliment, as Coach Dambrot may have misguidedly intended it), and properly mentioning it as a fact. Judge Keith knew the case would be read by many people of all races, and doubtless discussed by many people of all races—in future oral arguments, in law firm conversations about how best to use the precedent, and in classrooms. Yet he precisely and repeatedly discussed the facts, and counted on people to understand that there is a world of difference between factual mentions and insulting uses.

Both these points are largely uncontroversial in universities and among judges for almost all other words. And they're broadly accepted by judges as to "nigger" as well as for any other word: The word appears in nearly 10,000 court decisions (and those are just the ones available on Westlaw) since 2000 alone. These include opinions from Supreme Court Justices including Justices Sotomayor, Thomas, O'Connor, Ginsburg, and a six-Justice per curiam signed on to by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. They include opinions from illustrious federal appellate judges and state court judges, including liberal luminaries who yield to no-one in their desire for racial equality.

The word appears routinely in briefs, including those submitted by prominent advocates for equality; in oral arguments in court; in academic articles on law; and elsewhere. (A draft article cowritten by Harvard Law School's Randall Kennedy lays out a wealth of evidence on this.[1]) Less than two weeks ago, the word was mentioned 52 times in the opinions in a Connecticut Supreme Court decision (State v. Liebenguth), and had been said 6 times by the Justices in that oral argument. Indeed, expurgating Judge Keith's opinion is disrespectful to him as a judge and as an author—as if he is some naughty schoolboy whose carefully chosen wording, based on decades of legal experience and now itself part of the law, is unfit for polite company.

Prof. Tim Boudreau was teaching a class about law, in which doubtless some students wanted to become lawyers and all wanted to learn about the legal system. He was discussing an important case—the earliest appellate precedent on campus speech codes.[2] The case sheds important light on general First Amendment debates; unsurprisingly, the class materials included plenty of cases on such general topics that were not themselves media cases, such as Brandenburg v. Ohio, the Texas v. Johnson flagburning case, and more. And the case governs the rights of (among others) student newspapers and students on social media, a subject that, equally unsurprisingly, was covered in the class (see the syllabus for Week 6).[3] By following the norms of the legal profession in accurately quoting the case, Prof. Boudreau acted entirely properly.

The same is so of his giving the trademarks "NIGGA" and "NIGGERPLEASE" as analogies in discussing Matal v. Tam, a case involving a racial epithet as a trademark ("Slant") [this was one of the other items for which Prof. Boudreau was faulted in the Investigative Report -EV]. The terms "Nigger" and "N.I.G.G.A.," for instance, appear in the Federal Circuit en banc decision that the Supreme Court affirmed in Matal, and in 10 briefs filed with the Supreme Court in that case plus 4 filed with the Federal Circuit. One of those briefs, by the way, was filed behalf of the Fred T. Korematsu Center for Law and Equality, Hispanic National Bar Association, National Asian Pacific American Bar Association, National Bar Association ("the nation's oldest and largest national network of predominantly African-American attorneys and judges in the United States"), National LGBT Bar Association, and National Native American Bar Association as Amici Curiae in Support of Petitioner—groups that few would call racist or racially insensitive.

And Prof. Boudreau was also following practices that are standard in the university more generally for pretty much all other words, and that remain standard among many professors for this word as well. The university, like the courtroom, is supposed to be a place where people accurately and unflinchingly discuss the truth. That some people find certain facts to be offensive, whether facts about the world or facts in a court opinion, cannot require professors to expurgate those facts (just as it does not require judges to expurgate those facts).

We thus think Prof. Boudreau acted properly. But even if we are mistaken, and it would have been pedagogically better for him to use a euphemism instead of an accurate quotation, it is wildly improper to fire a tenured professor for such accurate quotation, especially in the absence of any clear rule prohibiting it. See, e.g., Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001) (which the [CMU Investigative Report on the Boudreau matter] did not discuss); Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996) (which the Report did not discuss either).

The prohibition on speech that creates a "hostile learning environment" most certainly is not adequate warning: Court cases make clear that a "hostile education environment" is created only by behavior that is sufficiently severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit," Davis v. Monroe Bd. of Ed., 526 U.S. 629 (1999), and no case even hints that accurately quoting two epithets from a court case and the name of a registered trademark in discussing another case would qualify as "severe[ and] pervasive" misbehavior. We're quite sure that judges wouldn't conclude that something that courts routinely say in their opinions is a violation of federal hostile environment law when quoted by professors in a law class.

Indeed, in Savage v. Maryland, 896 F.3d 260 (4th Cir. 2018), the unanimous panel (all three members of which were appointed by President Obama) specifically held that reading aloud multiple documents that contained the word "Nigga"—repeated "over and over again," id. at 266—is not hostile environment harassment. There, a prosecutor had been reading letters from suspects, and the arresting officer complained that this created a hostile environment. But the panel concluded that "it would not be reasonable to believe" that reading the letters created "a racially hostile environment" in violation of antidiscrimination law:

[T]he racial slur read by Oglesby is particularly odious, and "pure anathema to African-Americans." … "Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as 'nigger' by a supervisor in the presence of his subordinates."

But context matters, as [Clark County School District v. Breeden, 532 U.S. 268 (2001),] instructs, and the question is whether use of a racial epithet has created a "racially hostile" work environment. And while the employer in [one precedent] used racial epithets in his own voice and to express his own insults, and the employer in [another precedent] directed epithets at the plaintiff to "cap explicit, angry threats that she was on the verge of utilizing her supervisory powers to terminate [the plaintiff's] employment," this case is decidedly different…. Oglesby was not aiming racial epithets at Savage, or, for that matter, at anyone else, or using slurs to give voice to his own views. Instead, he was reading the word "Nigga" aloud from letters written by criminal suspects, presented to him by a police officer in the course of a trial-preparation meeting.

Id. at 277 (citations omitted). Using epithets to insult employees or students thus may create a hostile environment; but quoting them from case documents does not. Likewise, quoting the Savage precedent in a law class—or quoting the Dambrot precedent—would not create a hostile environment, either.

Moreover, the Investigatory Report's repeated references to Prof. Boudreau's mentioning of "other racial and homophobic slurs" makes clear that the slippery slope is very real: If the decision is not reversed, Central Michigan University professors should fear for their jobs if they quote the facts from leading Supreme Court precedents such as Matal v. Tam (with its reference to the Slants, which the report labels as "language considered to be a racial slur") or Snyder v. Phelps (where the Court struck down a damages award for near-funeral picketing by the Westboro Baptist Church that contains signs such as "God Hates Fags"). Indeed, on p. 6, the Report expressly faults Prof. Boudreau for "us[ing] homophobic slurs during his teaching of material associated with the Westboro Baptist Church."

Central Michigan University certainly has an opportunity to make a name for itself in the academy through such an extraordinary action—it's just not a name that we would think the University would seek. And of course the University may also acquire the rare distinction of being the defendant in two separate campus speech suppression cases, though that too is a distinction that we would think best avoided. (We do not even discuss here the seeming lack of due process and Faculty Senate input in a matter that so deeply affects faculty freedom, a topic we leave to others.)

The firing of Prof. Boudreau should therefore be immediately and completely reversed.

[1] See https://reason.com/wp-content/uploads/2020/08/epithets.pdf. [EV adds: Since this letter was written, the article has been much expanded and finally published, and is now available here.]

[2] The Investigatory Report notes that Doe v. Univ. of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989), came before the Dambrot litigation, but Doe was only a one-judge district court decision, and thus not legally binding precedent; Dambrot yielded a binding precedent from an appellate panel, 55 F.3d 1177 (6th Cir. 1995). Searching in Westlaw for Dambrot citations, "55 f.3d 1177" & "first amendment", yields 168 court cases; searching for Doe citations, ("721 f.supp. 852" "721 f. supp. 852") & "first amendment", yields only 37 court cases.

[3] For just some examples of law review articles citing Dambrot on such questions, see, e.g., Patrick O. Malone, The Modern University Campus: An Unsafe Space for the Student Press?, 85 Fordham L. Rev. 2485, 2505 (2017); Frank D. LoMonte, Fouling the First Amendment: Why Colleges Can't, and Shouldn't, Control Student Athletes' Speech on Social Media, 9 J. Bus. & Tech. L. 1, 7, 10 (2014); Meg Penrose, Tinkering with Success: College Athletes, Social Media and the First Amendment, 35 Pace L. Rev. 30, 32 (2014); Meg Penrose, Outspoken: Social Media and the Modern College Athlete, 12 J. Marshall Rev. Intell. Prop. L. 509, 513, 525, 528 (2013); Darryn Cathryn Beckstrom, Who's Looking at Your Facebook Profile? The Use of Student Conduct Codes to Censor College Students' Online Speech, 45 Willamette L. Rev. 261, 300, 308 (2008).

NEXT: Today in Supreme Court History: May 8, 1884

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  1. He received a year’s salary, which seems inadequate compensation for the stress and trauma he endured.

      1. The US government should name the Chinese oligarchs making policies, and sanction them, then cancel them.

        1. ” then cancel them.”
          Are you suggesting assassinations?

          1. If war breaks out, they should be first to go, not millions of innocent people.

            In the Iraq war, the oil people of West Texas attacked the oil people of Takrit, on our money, and on the lives of our and their children. Millions of innocent people trying to live their lives were killed. Even the dictator, Saddam was hanged. Those skunks then started ISIS. They are still untouched.

            It’s maddening.

    1. It may have more to do with the Michigan state retirement system and his being a year older and having a year more service.

      1. He cannot deduct legal expe ses because mo injury took place. He may have to borrow money to pay taxes on the full amount. All the lawyers should be sued for malpractice for failure to disclose that, including the drafter of this awful settlement. A judge not informing the plaitiff shoild forced to pay out of personal assets. Sick of the lawyer con.

        1. Doesn’t restoring the injury, paying him the lost wages, mean he has to pay taxes on it because it’s income. This differs from reimbursement for losses.

        2. If he hadn’t been fired, he would have got the same pay and paid the same income taxes, apart from the matter of this being a lump sum in this year, and last year losing income and lowering his tax bracket; he may well come out ahead.

          1. The problem is that he had legal expenses which cannot be deducted. He should have been informed for his informed consent prior to proceeding.

            From the IRS:
            Legal Expenses
            Legal expenses that you incur in attempting to produce or collect taxable income or that you pay in connection with the determination, collection, or refund of any tax are miscellaneous itemized deductions and are no longer deductible.

            You can deduct legal expenses that are related to doing or keeping your job, such as those you paid to defend yourself against criminal charges arising out of your trade or business.
            .

            1. What were his legal expenses?

    2. Yes, this seems like a lousy settlement. FIRE, which was representing him, has good lawyers, so I’m surprised. You’re right that he can’t deduct legal fees, so if his income is $100,000, and he has to pay $25,000 in taxes, and he has to pay, say, $50,000 in legal fees, he’d be left with $25,000. On the other hand, if he’d won, he’d have gotten perhaps $200,000 plus, if it was a section 1983 action, legal fees of, say, $150,000 to pay FIRE. I’m just guessing at these numbers– anybody with expertise know if they’re on target?

      Also, he signed a nondisparagement clause. That should have been worth $100,000 in itself, depending on what secrets he’s being paid to keep quiet about.

      1. Saying that Behar is “right” is always a bad idea; when talking about law it’s never true. While most legal fees are not deductible, there are exceptions for employment-related cases.

        And of course Behar’s a loon, claiming without any knowledge what was disclosed or not disclosed to Boudreau, and inventing new duties for a judge that not only don’t exist, but for a judge that doesn’t even exist. (This was a grievance, not a lawsuit.)

  2. This is like watching kids in kindergarten.

    1. Unfortunately, it is not kindergarten. Unfortunately, kindergarten has been reached by the Marxists. I reported my Superintendent for emotional child abuse for a course teaching white kindergarten students are racists and at fault for the condition of blacks. A black female child welfare officials called me. She demanded to know the name, address, and birthday of the specific white child who was abused. I did not know any kindergarten students personally. She said she was dropping the complaint. This black female supremacist child welfare worker must fired.

      1. https://www.msn.com/en-us/news/us/asian-american-parent-rebukes-virginia-school-board-for-admissions-policy-changes/ar-BB1gvxaU?ocid=msedgdhp

        I oppose the killing of millions of Commies in the USA. I support visiting the oligarchs behind this movement. The same should be done when conflict erupts with Commie China.

        1. Coke Cockatoo Cuckoo for Commies!

          1. That is a really offensive comment. I request that you be cancelled by the Reason Foundation.

            1. With this new Flag Comment feature, everyone should try to get everyone else cancelled. Before I left Facebook, I was bagging a dozen Commies a day, getting them banned.

              1. Coked-up Cockatoo’s Keyboard Commie-bagging Crusade!

                1. Still incapable of addressing the actual message, still resorting to insulting the messenger. Apparently you are incapable of actual messages yourself. Is that the public persona you wish to advertise?

                  1. We should all flag every Queenie comment, until it is cancelled from the Reason Foundation.

  3. Well one argument will go right over their heads, that his use of ‘nigger’ was ok because
    he was quoting a Black judges opinion.

    Just because a campus radio station is blasting 25 times a day a rap with multiple repetitions of ‘nigga’, at least that’s what they claim they are saying, and a Black student could sing along word for word, white students definitely cannot.

    A white professor should know his place better, and not get all uppity and think he can do everything a Black professor, or Black student can.

    1. Equity is a masking ideology for Marxism and should not be tolerated.

    2. “Just because a campus radio station is blasting 25 times a day a rap with multiple repetitions of ‘nigga’, at least that’s what they claim they are saying”

      I’m waiting for some White professor to get into trouble for driving across campus with his radio tuned to said campus radio station, and maybe singing along with it.

      Remember that back when tapes and CDs were sold, the primary market for Rap music was White males.

    3. Yes, poor white people, they are so downtrodden.

  4. I still feel indebted to Nadine Strossen for allowing me, as a summer associate at Sullivan & Cromwell in 1980, where she was then an associate in the litigation department, to apartment-sit for her and her husband while they were taking a well-earned vacation. I doubt she remembers me at all, for we met only briefly, but an apartment-sitter comes to feel as though he knows quite a bit about the person whose premises he’s tending. Her politics and mine, then and now, differ spectacularly, but I respect her as a consistently honest and capable advocate; I’ve followed her subsequent career fondly; and on issues like this one, my views align very nicely with hers.

    Good for her, Prof. Scales, and you, Prof. Volokh, for sending and publicizing this letter!

  5. Respectfully Professor Volokh, *this* is what you overlooked: https://www.cmich.edu/fas/police/Pages/default.aspx

    My guess — just an educated guess — is that he was told that the campus police would no longer protect him, and he could either remain on campus and *die*, or he could leave — his choice. This is a disturbingly common practice and one needs to remember that at a state university, this is the municipal police — the folks who answer 911 calls.

    The problem with campus police departments is that they are run by chiefs who serve “at the pleasure of” the administration — the same issues may arise with a mayor or governor but they seem to be worse in higher education.

    I am personally aware of a situation where another campus police department told an undergrad that they knew that other students intended to “smash in his head with large rocks” and that they didn’t intend to do anything to protect him — he could either drop out of school or die, it was his “choice.”

    As it was widely known that I had intervened in a situation to prevent two professors from being assaulted a few years earlier and no one was *really* quite sure what I might do if physically attacked, I got a somewhat different version of this: not only would the campus police not protect me, but they’d arrest and prosecute me for being a victim. I was bluntly told that I would be arrested “the next time the department has contact with [me] — for any reason and regardless of circumstances.”

    It’s hard to describe what that does to you unless you’ve had it done to you — you become a “non-person” in the Soviet sense and everything you ever believed in you having civil rights sorta evaporates. And it’s actually worse than that when the institution lets it be known of the “wisdom” of not associating with you.

    Professor Volokh, the man did not have a choice — and that’s what I think you fail to understand. Yes, hopefully he got the best deal he could — but please don’t think he had a choice otherwise.

    And as an aside — if the Michigan state retirement system is like those with which I am familiar, one can retire quite young — at the expense of what your monthly check will be. For example, the Massachusetts system is how many years of service you have and your age, and I personally know someone who got a much bigger check because she retired *after* her birthday and not before it.

    That may be relevant here — retiring at the end of the year as opposed to when they fired him may, depending on the rules, may give him a larger check. But still likely way smaller than if he retired when he was older…

    1. One other thing — IANAL but that is an agreement between him and his union — go through it like a lawyer but it appears to me that it is the *union* that he is waiving his claims against — including the fiduciary duty to represent him in an employment issue with the university.

      I really don’t expect much more from the Never Educate Anyone (NEA) but — again IANAL — I think the clause where he agrees that he was fired for the word and not his age speaks volumes….

      This is the union’s wet dream — they can dump a member whom they don’t want to support without liability or cost because the university is agreeing to pay the year’s salary. IMHO it raises a real question regarding bar ethics because the union is supposed to be at arm’s-length with the university, and it doesn’t appear to be here….

        1. OK, AINAA.

          I still would like to see a labor lawyer’s take on this, though.
          Suits against universities that end in settlements usually end in settlements with the university, not the employee’s union…

      1. One other thing — IANAL but that is an agreement between him and his union — go through it like a lawyer but it appears to me that it is the *union* that he is waiving his claims against — including the fiduciary duty to represent him in an employment issue with the university.

        Just how much of a fucking idiot are you?

        I am personally aware of a situation where another campus police department told an undergrad that they knew that other students intended to “smash in his head with large rocks” and that they didn’t intend to do anything to protect him — he could either drop out of school or die, it was his “choice.”

        As it was widely known that I had intervened in a situation to prevent two professors from being assaulted a few years earlier and no one was *really* quite sure what I might do if physically attacked, I got a somewhat different version of this: not only would the campus police not protect me, but they’d arrest and prosecute me for being a victim. I was bluntly told that I would be arrested “the next time the department has contact with [me] — for any reason and regardless of circumstances.”

        Oh, I guess as stupid as you think the rest of us are, if you’re expecting anyone to believe this load of horseshit.

        1. ” I guess as stupid as you think the rest of us are, if you’re expecting anyone to believe this load of horseshit.”

          Actually, the load of horseshit sounds very similar to what happened to Bret Weinstein at Evergreen, where the campus police told him to stay off campus because they couldn’t protect him from the students.

          1. Yes, I forgot about him.

            But this particular “load of horseshit” was actually documented by Inside Higher Education — one of the two trade newspapers for the High Ed industry, the Chronicle of Higher Education being the other. See: https://www.insidehighered.com/news/2012/02/06/students-letter-causes-stir-umass

            What isn’t publicly known, and one can either believe me or not, I don’t much care, is that CCPH (the campus mental health folks) “completely cleared” Molander, thus precluding UMass from booting him — leaving bulling the only remaining option.

            1. And just one typo in html and…

              Anyway, there was also a change.org petition — not that’s a credible source but it is *another* source…
              https://www.change.org/p/university-of-massachusetts-amherst-reinstate-tyler-molander-as-a-student-with-a-full-apology

            2. At what point in either link are you asserting that any of the claims you’ve fabricated are “documented”?

          2. According to the Volokh Conspiracy writeup:

            “I have been told by the Chief of Police it’s not safe for me to be on campus,” said [Evergreen State College professor Bret] Weinstein, who held his Thursday class in a downtown Olympia[, Wash.,] park.

            An administrator confirmed the police department advised Weinstein it “might be best to stay off campus for a day or so.”

            https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/26/professor-told-hes-not-safe-on-campus-after-college-protests-at-evergreen-state-university-washington/

            That doesn’t exactly cover the campus police in glory, but it is not, in fact, remotely similar to what Dr. Ed is pretending happened to him.

      2. I think you saw the paragraph where he said he wouldnt file suit against his union, for bad advice, etc. The agreement is not with the union, it’s with the university, but as part of it he agrees not to sue the union. The union is thus a “third-party beneficiary”, I think the term is.

      3. One other thing — IANAL but that is an agreement between him and his union — go through it like a lawyer but it appears to me that it is the *union* that he is waiving his claims against

        Once again, you should’ve stopped with IANAL.

        Nor, of course, was the NEA his union.

    2. My guess — just an educated guess

      There is nothing whatsoever educated about you.

    3. I am personally aware of a situation where another campus police department told an undergrad that they knew that other students intended to “smash in his head with large rocks” and that they didn’t intend to do anything to protect him — he could either drop out of school or die, it was his “choice.”

      No, you’re not. Seriously, why do you fabricate these stories?

      As it was widely known that I had intervened in a situation to prevent two professors from being assaulted a few years earlier and no one was *really* quite sure what I might do if physically attacked, I got a somewhat different version of this: not only would the campus police not protect me, but they’d arrest and prosecute me for being a victim. I was bluntly told that I would be arrested “the next time the department has contact with [me] — for any reason and regardless of circumstances.”

      As always, none of this happened.

  6. I have to say, Eugene; this was a very disappointing settlement. Getting 10 months’ salary is SO small…it makes him look guilty. (And, so I’m clear, I absolutely do not think he is remotely guilty of anything warranting termination.) This tiny settlement is what innocent defendants give nuisance plaintiffs to get them to go away…cheaper than the cost of litigating.

    As you wrote; it’s totally understandable why someone who is in the right might still want to settle a case at unfavorable terms. I am not the aggrieved party and I am not in his shoes and I don’t know what he has been thinking and experiencing and feeling. But man, the optics are terrible. What a bad result.

    And a settlement like this will only give encouragement to the next university or school who wants to censor its professors.

    What a disappointment. 🙁

    1. “This tiny settlement is what innocent defendants give nuisance plaintiffs to get them to go away…cheaper than the cost of litigating.”

      Which — combined with the fact that the settlement appears to be more with his union than the university — is why I believe that he was told that he would be in mortal peril if he remained.

      I really think that’s part of this…

      1. ” is why I believe that he was told that he would be in mortal peril if he remained.”

        Which, if he had evidence to prove that happened, would boost any claims for monetary damages if he went to trial in a civil suit.

        1. Those boosted monetary damages might well be difficult to collect if he was deceased. Just sayin’.

          1. He’d already been fired. A civil suit for monetary damages over employment discriminations/wrongful termination would not involve him being reinstated, so I have no idea where you think the danger would come from.

            1. Ummmm — do the police have a duty to protect an individual citizen?

              IANAA — but have seen that mentioned repeatedly — see: https://mises.org/power-market/police-have-no-duty-protect-you-federal-court-affirms-yet-again

              And — a filed suit would make his home address a public record…

              1. If he’s not on campus, what’s the motive for the campus activists to attack him?

                1. They are national activists…

    2. “This tiny settlement is what innocent defendants give nuisance plaintiffs to get them to go away…cheaper than the cost of litigating.”
      Exactly so. The settlement was a pittance. Three years salary would have been more like it.

  7. How much work does the use-mention distinction do? Is there any mention a professor could make in or to class that would not be protected or is everything that is said by one protected as long as it’s a quote from something else?

    If, say, a professor knew that a student was in his class whose sister was somewhat recently murdered or committed suicide, if they then chose to read details of the affair from the newspaper or court records to the class with the student there, is that ok? Let’s say the sister was killed as a hate crime or committed suicide in result of hate-related harassment, either one, but involving the use of epithets aimed at the sister’s ethnic group (or whatever) and the professor chose to excerpt the epithets to ‘get a discussion going’ about how people in the class felt about them, or whether the newspaper should have printed them or whether it was legally relevant or what not? Ok as long as quoting?

    I just wanted to know how far the principle goes.

    1. “I just wanted to know how far the principle goes.”

      Why?

      1. I would guess as an excuse to use bigoted slurs again, as happened in a recent thread where QA seemed to think the use/mention distinction did not exist.

        1. Now, now, Michael, enough of this performance art of your quasi-religion of anti-racism.

          Also, I know nuance isn’t your thing, but:

          “QA seemed to think the use/mention distinction did not exist” =/=”How much work does the use-mention distinction do?”

          1. “Now, now, Michael, enough of this performance art of your quasi-religion of anti-racism.”

            This insinuation that black people can’t, or don’t, perceive a difference between hearing the words “nigger” and “uncle tom”, and being called niggers and uncle toms really indicates that QA has a very low estimation of black people, that QA is not a serious person, or both.

            Seriously, I’m sure that this crap impresses the hell out of the kids in Psych 101 at the community college, but it is not a serious way to make your point.

            1. The part you quote is a parody of McWhorter’s position from the discussion Michael is referencing, I would think a serious person such as yourself would get that (but, then again, overly serious persons do struggle with that I guess [‘That’s a parody Commander Data, it’s when humans…’]).

              1. “The part you quote is a parody of McWhorter’s position…”

                It’s not a parody. McWhorter said that he didn’t think people were truly offended by innocuous reference to racial slurs.

                You distorted his position to claim that he didn’t think black people were truly offended by being called niggers and Uncle Toms, and chose to express that by calling him an Uncle Tom. Probably because you didn’t have the balls to call him a nigger.

                And now you’re reduced to calling your hackery a parody. As I said, that might work with the kids in Psych 101, but you’re really not teaching critical thinking.

                1. Yup. Very similar to how Kristen Clarke mow comically claims her letter to the Harvard student newspaper arguing that Blacks are superior to Whites was “satire”.
                  But sadly, this seems to work not just for the kids in Psych 101 at the community college, but for elected representatives in Congress.

                  1. It would be one thing if she was just a Congresscritter.

                    But Barrack O’Biden has nominated her to head the Civil Rights Division at the US Department of Justice.

                    I fear for the future of the republic…

                2. “It’s not a parody. McWhorter said that he didn’t think people were truly offended by innocuous reference to racial slurs.”

                  No, that’s not what he said. He said that people SHOULDN’T be offended by certain words used in that context, not that they weren’t. It’s very evident that people are truly offended by the use of certain words, rightly or wrongly.

      2. I’m curious about ideas.

        1. “I’m curious about ideas.”

          OK, but you first. Let’s set a baseline. Say the professor in your hypo did exactly as you described, but used euphemisms for the slurs at issue.

          Would that be completely innocuous, questionable, or something else. If we get to the bottom of that, we can figure out how reading the actual slurs changes the situation.

          1. No, no. You’ve already answered my question with a question once (often considered bad form among humans), we’re not going there yet again.

            I would think with your superior understanding of the use-mention distinction you could easily and quickly explain the work it does or does not do in my hypos, so that we can understand better the work it does or does not do in the current controversies. So let’s have that first.

            1. Lol your hypos only involve mentioning, non using, so the use-mention distinction is not doing any “work”. But since the real distinction at issue is between mentioning and redacted mentioning, you need to show how much work the mention of slurs is doing in your hypo.

    2. If I knew someone who’d been in the news for some horrible crime or situation, and it was something somehow relevant to the class, I might ask the professor in advance and ask if it would come up in class, but I wouldn’t assume it was the professor’s job to know -without being told – which of his students were connected to various events in the news.

      1. “I wouldn’t assume it was the professor’s job to know”

        I started my hypo with: “a professor knew”

        1. I do beg your pardon.

          Your hypo says “somewhat recently” – probably too early for an appeals court to weigh in – how else would it be relevant to a law class?

          1. Schools are standing on top of a slippery slope, with their skis strapped on, ready to ride the slope, and you’re expressing concern that they’ll suddenly start skiing in the opposite direction to what they’re facing?

            1. “Schools are standing on top of a slippery slope, with their skis strapped on”

              Except that the sun is shining, the snow is melting, and the ledges are starting to break through the surface.

              A growing number of state legislatures are starting to express concerns about their state universities and colleges — and the strong spring sun is starting to melt the snow.

              While I don’t doubt that the institutions are ready to ride the slope, if you’ve ever skied over an exposed ledge, you’ll understand how I suspect this is going to end. And if you haven’t, think of one ski (or both) suddenly stopping while you remain in motion, going downhill…

          2. I don’t mean this pejoratively, but don’t be pedantic. The hype works whether it’s a law class or not (maybe it’s a law class about journalism and it’s a news article they’re reading) for what we’re discussing (academic use of slurs in class).

            1. Well, then I guess we get back to the use-mention distinction. With a professor who knows a student is personally involved in some bad-news situation, to deliberately rub their nose in it seems like use not mention. More like “you’re a dumb [bad word]” than “the court’s opinion says that use of [bad word] to insult an employee can be part of a hostile environment.”

              I checked Wikipedia, and after the Abraham Lincoln assassination his son Robert Todd attended what is now Northwestern Law School. I don’t know if he studied military law (which would have helped Robert in his future Secretary of War job), but if so the military commission trial of his father’s alleged assassins may have at least been mentioned. Unless they wanted to defer to his sensibilities?

        2. “a professor knew”

          I think it would be relevant HOW said professor “knew”, as it could be everything from the student being interviewed on the network news to the campus Behavioral Intervention Team sharing some of the student’s mental health file without the student’s knowledge or permission.

          And then there is the larger issue of being concerned about ones students — which, IMHO, far too professors are.

          But I’ll throw this back at you — say you had a student whose uncle was a police officer who had died in the line of duty. Say you knew this because Student Affairs had sent a “please excuse…” email to the student’s professors, mentioning not only the funeral but travel time to Texas.

          Maybe the email was cryptic, merely stating “a police officer in Dallas (TX) who died in the line of duty last Thursday” — which is probably how I would word it. But being morbidly curious, you go to DuckDuckGo and bring up this: https://www.foxnews.com/us/dallas-sniper-who-gunned-down-5-cops-wanted-to-kill-white-people-chief-says And then you find that there is a CNN version that says the same thing, although not quite the same way.

          So do you discuss Black Lives Matter in class?

          Again, let’s assume it is relevant for the curriculum. What do you do?

          Might I suggest that you deal with this the same way that you deal with your hypothetical? That it really has nothing to do with race or sexual orientation and everything to do with concerns about your student as a human being — your duty to concurrently be humane and be an educator.

          1. I should have explicitly stated — a White student (as the perp killed White officers).

            Also, take a look at _Tinker v. Des Moines_ — the school’s argument was that the black armbands would upset the students whose parents were then serving in Vietnam.

            It’s the very same argument you raise.

          2. Uh, he knew because it was public knowledge/record. As often is the case, I find myself wondering wtf you’re talking about.

            1. Which is why I wrote out “Behavioral Assessment Team” rather than just using “BIT” — you do know that you can look up terms that you aren’t familiar with, don’t you?

              I also don’t see you answering my hypothetical which was the exact inverse of yours.

    3. “If, say, a professor knew that a student was in his class whose sister was somewhat recently murdered or committed suicide, if they then chose to read details of the affair from the newspaper or court records to the class with the student there, is that ok? ”

      If it has something to do with the class the professor is teaching, yes. Although if the professor has any decency, he will warn the student in advance, assuming professor is aware that one of his students is in a sensitive situation.

      If it has nothing to do with the class, and it is just gratuitous harrasment of a student, then no.

      Now are you seriously comparing the us of the N-word for all black students, in a court case that may have happened before the student was born, to reading a newspaper account of the murder of a close relative of a current student?

      1. Why any warning or talk of decency if the use-mention distinction does the work it is posited to do (or do I misunderstand the work it is posited as doing, if so please explain the nature of that work)?

        “Now are you seriously comparing ”

        No. Ideas put forward to resolve controversies are in part defined and helpfully understood by their boundaries (this is why On Liberty is not just a statement of the Harm Principle and The End but rather many, many subsequent pages of ‘hard cases’ hypotheticals dealing with when and how the principle applies or doesn’t).

        1. “Why any warning or talk of decency if the use-mention distinction does the work it is posited to do (or do I misunderstand the work it is posited as doing…”

          The use-mention distinction is being used to illustrate the difference between calling black people niggers, and talking about black people being called niggers.

          But from your previous comments I take it that you don’t understand the difference, so maybe that’s why you are having so much trouble.

          1. The other thing is if one is being *more* hurtful in *not* mentioning that the victim was called a “nigger.”

            One of the issues with hate crimes is that they *are* hate crimes — and many people feel that not mentioning that it was a hate-based murder is a form of continuing oppression.

            While I disagree — I consider murder to be reprehensible regardless of motive — mine is not a majority opinion.

          2. I think you don’t understand my comments, originally or in this reply to Bored (or maybe you don’t understand his?). If the use-mention distinction, which you obviously superiorly understand, does the work I asked about why would Bored talk about the ‘decent’ thing to do regarding my hypo? It’s all mention, so why would ‘decency’ be a factor at all?

            Now that I’ve explained it more have a go.

            1. A faculty member has two distinct and often conflicting duties — the duty to be humane and the duty to educate. Neither is absolute.

              But go back to my hypothetical, that of a White student whose uncle was one of the Dallas officers murdered by that Black sniper.

      2. That’s well put.

        There is no conflict between narrowly tailoring a conversation with a specific person and having a general discussion with a general audience.

        If your buddy Fred is dying from lung cancer, it would be pretty thoughtless to say ‘Bummer that that two pack a day habit caught up with you, innit?’. But that doesn’t mean it is forever off limits to publicly discuss the hazards of smoking, even if Fred is going to hear the discussion. Even if the person pointing out the hazards isn’t a smoker.

        When German guests are over for dinner, I don’t remark ‘So, any of your relatives ever work at the camps in WWII?’, but as a society we surely shouldn’t forbid mention of the Holocaust by anyone who isn’t a Holocaust survivor.

        1. “Don’t mention the war!”

          1. We need to be able to upvote.

        2. “we surely shouldn’t forbid mention of the Holocaust by anyone who isn’t a Holocaust survivor.”

          THAT is the real issue here — ability to claim exclusive use of a word is a form of power.

        3. That doesn’t help with my example because in it you know there is a German guest in your class (so to speak).

          1. That is an incredibly racist thing to say.

            I have personally met graduate students from Germany whose spoken English was better than mine. Yes, there are clues that indicate the person is from Germany, certain German usage patterns that don’t occur in English, but I doubt you’d catch them.

            1. Good grief this comment is more dense than a black hole. No one is talking about Germans’ English aptitude. Are you drunk?

              1. Neither drunk nor blind:

                ” you know there is a German guest in your class”

                How do you know?!?

                All you have is a name, a student number, a snailmail address (campus dorm or nearby apartment complex) and maybe a major.

                Maybe the student has a German-sounding last name, but lots of multi-generational Americans do as a lot of Germans immigrated here in the 18th Century — Worcester County, Massachusetts comes to mind where many of the municipalities have Germanic names, e.g. Fitchburg.

                So how do you know that none of your students aren’t German citizens?

              2. Black hole? Flagged for racism.

                1. Maybe you read on CNN
                  “Black physicist rethinks the ‘dark’ in dark matter”
                  https://www.cnn.com/2021/05/02/world/black-scientists-structural-racism-scn-wellness/index.html

                  Even physicists have spout shithead nonsense

                  1. Unfortunately the reporter was to clueless to ask the professors opinion about Stephen Hawkings theorem that
                    “A black hole has no hair.”

                  2. She raises an interesting question: If black is the absence of color, how are we able to see the color black? If it’s reflecting light in the visible spectrum, that light would have to have a color(s).

          2. “there is a German guest in your class”

            If there is a German student in my history class, we’re not going to skip WWII to avoid triggering them (or the Polish student whose grandparents were on the other side of the equation).

            That’s different from what I might discuss with dinner guests at my house.

    4. “if they then chose to read details of the affair from the newspaper or court records to the class with the student there, is that ok?”

      I can answer that in terms of pedagogy: is it relevant to the curriculum?

      Do not forget the origin of the concept of academic freedom — Mrs. Stanford was hurt hearing a Stanford Economics professor saying that her late husband had exploited Chinese labor in building his railroad.

    5. ” is that ok? ”
      Maybe insensitive depending on how recently. but okay.
      And let’s remember the word is not one that blacks do not use themselves,
      What we see is false outrage and a chance to play a power game with an upper hand.

  8. It turns out that quoting the word only harms black people if they happen to notice it.

    1. “I’m curious about ideas.”

      OK, but you first. Let’s set a baseline. Say the professor in your hypo did exactly as you described, but used euphemisms for the slurs at issue.

      Would that be completely innocuous, questionable, or something else. If we get to the bottom of that, we can figure out how reading the actual slurs changes the situation.

      1. Huh. That went in the wrong place.

        1. Don’t sweat it, people often make such mistakes when in the emotional rush of, say, a quasi-religious fervor….

  9. Very nice letter, and good idea to mention the use of “the word” by left-wing judges and organizations, but I don’t think there’s any call to suck up to those left-wingers in quite so cringe-worthy a manner.

    “liberal luminaries who yield to no-one in their desire for racial equality”

    Really? In the context in which the term is used, and as understood by your average academic reader, “liberal” conjures up names like Blackmun and Ginsburg, both of whom supported racial discrimination in certain circumstances against whites (and maybe even Asians). Do they really “yield to no-one in their desire for racial equality” if they literally support racial discrimination?

    “Fred T. Korematsu Center for Law and Equality, Hispanic National Bar Association, National Asian Pacific American Bar Association, National Bar Association (“the nation’s oldest and largest national network of predominantly African-American attorneys and judges in the United States”), National LGBT Bar Association, and National Native American Bar Association as Amici Curiae in Support of Petitioner—groups that few would call racist or racially insensitive.”

    Again, how many of these groups support racial discrimination so long as it’s against the “correct” targets? Are we absolutely sure that none of them has been racially insensitive – eg, against black Republicans?

    Why not put it this way: “Judges and organizations who are presumably admired by most of the CMU administration as alleged advocates of racial equality have used the word,” etc.

    PS – could whoever blares his or her car stereo in the convenience store parking lot turn to a station which doesn’t use “the word” in its songs?

  10. In the article “An Artist on How He Survived the Chain Gang,” the current (May 10 2021) issue of the New Yorker printed the word multiple times with the article’s subject, the late Winfred Rembert’s, explanation of why he insisted on printing it.

    “I understand that seeing that word written flat out on the page may hurt some people. My hope is they will come to understand why it’s there. As a young person, I was called a nigger so many times I answered to it like it was nothing. That’s what happened. My story will not be as clear if I block out the word or even change a single letter. A substitute doesn’t carry the same effect. To me, it isn’t the same word. I’ve got to use the word just like I’ve heard it said so many times in my life. I think about all the people who went to their graves because they didn’t want to be called a nigger. Some people died because they wouldn’t put up with it. They were killed. I want the reader to understand the effect it carries when you use that word and how degrading it is.”

    1. Chain gang? Sounds rough.

  11. I believe Jack Nicholson said it best;
    “YOU CAN’T HANDLE THE TRUTH!!”.

  12. This is a good illustration of how the law is rarely what Prof. Volokh says it is: Elane Photography has been sanctioned and Prof. Boudreau has been fired.

    1. Ambrose Bierce thought he was being cynical when he defined “Lawful” as “Compatible with the will of a judge having jurisdiction.”

      But the remorseless advance of legal positivism has turned that joke into reality. Take that, Ambrose!

      1. I’m not sure your narrative of increasing legal positivism in judge’s decisions jibes with historical reality. It’s an interesting topic.

        1. How would you account for judicial interpretations of the law being referred to as “law,” if not for legal positivism?

          Anyway, it was the way these decisions are treated, not the subjective motivations of the judges themselves, which I was referencing.

    2. “This is a good illustration of how the law is rarely what Prof. Volokh says it is: Elane Photography has been sanctioned and Prof. Boudreau has been fired.”

      He’s been wrong twice? Wow. And they had to pay Prof. Boudreau, so I don’t know if that counts.

      1. Yeah, I wouldn’t say he’s been ‘wrong,’ Boudreau settled, and the issue in the other case is essentially just yet to be decided ultimately. I do take y81’s point if it is that the ‘law in action’ is often different than the ‘law on the books’ because of things like social and political factors at work (pressure to settle suits or waive rights, cases seen as not good test cases for political reasons, etc.,).

      2. Severance pay, essentially, and now he has to find a new job with them giving him bad reviews.

  13. There are cases of people abandoning their elderly parents, there’s murderers who kill their victims in all sorts of nasty ways, there’s rape cases, and of course family-court cases. All shocking stuff.

    Yes, it’s a slippery slope.

  14. “sticks and stones can break my bones, but words can never hurt me.”
    Lived that belief for 98 years now and they still are true!
    When did that phrase disappear from the language?

    1. There’s just some areas where that is shown to be a bit simplistic. Even our law today recognizes the harmfulness of words alone in certain situations (emotional distress suits, libel/slander, emotional abuse in family law, fighting words, etc.,). The idea that there might be other categories out there that should be legally cognizable can hardly be dismissed with a folk saying (generally useful though it may be as a ‘life guide’).

      1. That slogan is often misunderstood. It wasn’t just a factual observation, (Words can’t physically hurt you, that makes them very different from blows.) it was also advise: Toughen up, buttercup: Words can only hurt you if you let them.

        Today we encourage people to be vulnerable rather than tough, a bad choice, I think.

        1. Wrong.

          Today we encourage people to speak up and fight against what they perceive to be a wrong.

          Nothing wrong with that.

  15. On the first day, when it’s still possible to drop for a full refund, there should just be a class session where everybody uses every slur that an English-language speaker is likely to come across while reading court cases. Once that class is done, then it’s old news and we can learn about the law. For those whose constitutions are too delicate, then they find out early that they’re too fragile for the practice of law and can still drop for a full refund. Bam, problem solved.

  16. Some areas of the law often involve repeated use of racial slurs. If your are studying the law of employment discrimination and harassment, hate crimes enhancements or civil rights cases, it is inevitable that some cases are going to mention racial slurs, if nothing else but as part of the evidence. The idea that these are unmentionable results in a stunted understanding of the law as being taught to the students. Which is what law school is all about.

    The federal standard for discriminatory harassment is where “the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”

    Is one racial slur enough? How about once a month? How about if the boss does not use slurs, but the clients occassionally do? What about the occassional off-color joke?

    It is hard enough to explore these issues without having a speech code stymie understanding of the law as it applies in the real world.

  17. “Recent Developments in Controversies About Quoting Slurs from Court Cases”

    Many, if not most, of the vile racial slurs published at this blog this year have not involved “quoting slurs from court cases.”

    Yet they managed to comply with the Volokh Conspiracy’s civility standards . . . the same standards used repeatedly to mute those who are not conservatives at this blog.

    You’re fooling no one . . . except perhaps the gullible right-wingers who are your fanboys.

    Carry on, “often libertarians.”

    1. Artie, we don’t want to mute you. You need to be cancelled. You are working hard to promote the interests of the Chinese Commie Party.

  18. They used “n-word” in the settlement agreement. If that is not a commentary of our current state of affairs and dysfunction, then nothing is.

    1. Good point….

  19. Thank you, Professor VOlokh, for publishing the settlement agreement. It’s an interseting nondisparagement clause, because it’s carefully limited.

    “Dr. Boudreau shall not, by oral or written expression or any other act of communication to any third party, by name, disparage, criticize, or impugn the reputation or character of CMU’s curent or former Board of Trustees members, Board of Trustees, administrators, directors, other employees,eagents and representatives, both individually and in their official capacities (Releas6s). This provision shall not be construed to prohibit Dr. Boudreau from communicating his disagreement with CMU’s decision to terminate his employment for the way he spoke various words including the “n-word”, his criticism of CMU’s decision and generally his beliefs and opinion on the efficacy of his teaching methods. ”

    Observations:
    (1) He can talk about the incident he was fired for.
    (2) He can disparage the University, just not the various individuals who are to blame for any university scandals he may reveal.
    (3) The University and its officials are free to disparage him however much they want.
    (4) No damages are specified for breach of the clause. He is paid his settlement money within 30 days, and there are no liquidated damages. Presumably the damages would be the default of expectation damages, which in this case would be like defamation damages except he would be liable for harm caused even by truthful statements about public figures.

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