One Judge's Perspective on Quoting Epithets

From Judge Jamal Whitehead (W.D. Wash.) Friday in Young v. Boeing Co. (W.D. Wash.):

According to Troglia—who identifies as "mixed race (Hispanic) and not 100% Caucasian"—Young became frustrated and called Troglia a "bitch ass nigger"¹ on February 24, 2023, while the two were working together….

¹ Throughout this order, the Court uses the phrase "N-word" when speaking in its own voice. But when quoting the record, the Court reproduces the actual language used. Judicial opinions that euphemize the record risk obscuring the very conduct at issue. Where, as here, the use of a racial slur is central to an employer's termination decision and the plaintiff's claims, the Court declines to place a thumb on the scale by softening the language that drives the dispute.

Of course, as Randy Kennedy and I noted in our The New Taboo: Quoting Epithets in the Classroom and Beyond, different judges exercise their discretion differently on such matters: Some judges avoid expurgation altogether (see, e.g., this decision from last week); others expurgate some slurs; others expurgate a wide range of vulgarities; and others expurgate some mentions of a slur but not others (e.g., not direct quotations from the record). In any event, this example struck me as worth noting.

Comments

[Stupid Government Tricks]

The problem I have with expurgation is the wide variety possible and the obfuscation of reality. IANAL and don't read a lot of court documents, but I imagine the various differences can make it hard to find matching text which is disguised as euphemisms.

[John F. Carr]

I see the especially vulgar word "alien" censored even in direct quotations from laws and judicial decisions.

[Archibald Tuttle]

"the Court declines to place a thumb on the scale by s******** t** l******* t*** d***** t** d*."

[CJColucci]

I haven't been able to find it, but four or five years ago, there was a Second Circuit discrimination case where the evidence was rather thin and the record was unclear --probably because of the reluctance of witnesses or counsel -- whether a key person said "N word" or actually said "nigger." Given the thinness of the evidence, this was potentially decisive and the case had to be sent back.

[y81]

Maybe John McWhorter should teach a CLE for judges where he could explain the use/mention distinction.

[The Margrave of Azilia]

Ideally, the rule should be that using words like the N-word, the F-word, and many other words of a similarly offensive nature, should be avoided unless there's a non-hateful reason to use the words.

Hence the distinction between using a bad word to describe one's own group (i. e., being ironic or self-critical) and using the word to describe someone else's group (which is usually done to express hatred). Some words have actually entered mainstream discourse in this way. "Quaker" used to be an insult but was turned into a self-description. I doubt that anything similar will happen with racial epithets.

And in the workplace, where the Supreme Court informs us workers must be treated with geometric equality (like the right, regardless of sex, to marry a man), then eventually even the "I'm describing my own group" exception won't work, because either everyone who uses an epithet will have to be punished, or no-one, with no racial distinctions. Admittedly we haven't reached this brave new world yet.

[Rossami]

While your rule sounds nice, it is far too vague and discretionary for anything close to fair enforcement. While there are times when courts must divine the intent of an actor to determine criminality, we should not be expanding that problem.

[The Margrave of Azilia]

Hmmm...I was thinking primarily of a *cultural* rule, and I was speculating that this cultural rule might be superseded (at least in the workplace) by a *legal* rule of geometric equality.

Nonetheless, common experience usually confirms Chris Rock's insight that White people *can't* say [bleep], while Black people can, because the meanings are different depending on who's saying it.

[Frank Drackman]

It's like that "Curb your Enthusiasm" Episode, Larry is so offended that some Redneck said "Nigger" that he tells his friends exactly what the guy said, just as a N, I mean African American man walks by.
OK, it's funnier if you watch it.
It's an easy episode to find, it's called
"The N Word"

Frank