A law student at Rutgers did something law students do. The student quoted a passage from a 1993 New Jersey Supreme Court decision, State v. Bridges (1993), that included the N-word. That word, together with some of the other worst epithets, can be found in over 10,000 decisions. It can be found in the New York Times. It can be found pretty much everywhere. But does it need to be said?
Black students at Rutgers Law School are petitioning for a policy against the use of racial slurs after an incident in which a white student quoted a racial slur directly from a 1993 legal opinion during a professor’s virtual office hours, The New York Times reported.
The petition also calls for apologies from the student, who has not been identified, and the professor, Vera Bergelson, who told the Times she did not hear the word spoken and would have corrected the student if she had.
Faculty at Rutgers, a public university in New Jersey, discussed Friday whether to voluntarily bar racial epithets from being spoken in class, even in the context of quoting court decisions.
Co-Dean David Lopez backs a policy prohibiting the use of the epithet because “this language is hateful and can be triggering, even in the context of a case.” Some prawfs object, arguing that it “implicates matters of academic freedom and free speech” when it precludes a prawf or student from quoting a decision.
At Volokh Conspiracy, Eugene tells of his law review article with Harvard’s Randall Kennedy arguing that this violation of free speech, and there’s no question that hateful epithets are protected speech, and any prohibition of the use of the word would devolve into broader and more serious censorship of hate speech.
When I was involved in a similar controversy a year ago, people told me: Of course this word is mentioned elsewhere in the legal system, for instance when clients or witnesses testify about it or talk about it when being interviewed. But it’s different when a professor, who is in a position of power in the classroom, says it. Yet of course once one rejects the use-mention distinction, and treats quoting a slur as forbidden, that applies equally to all speakers. And sure enough, here a student with no classroom power is being hounded as well.
Others told me: Sure, the word is written and can be written, but it shouldn’t be said out loud. But of course once one rejects the use-mention distinction, that logic applies to speaking as well as writing. (Surely we’d agree, for instance, that sending someone an e-mail calling them a “kike” or “n*****”* or what have you is reprehensible, because writing really isn’t that different from speech in this respect.) And indeed, as Randy’s and my article chronicles, in just the last year we’ve seen a flurry of cases where professors were condemned for writing the word.
I don’t doubt Eugene is right about the slippery slope. Randy Kennedy may call it the “Atomic Bomb,” but other identity groups will have their own words they demand be placed on the taboo list, never to be uttered by unauthorized personnel. I appreciate why they have drawn a principled line in the sand, for officially making one word absolutely forbidden and its use subject to punishment, but it opens a door that will almost certainly lead to free speech disaster, as already demonstrated by a series of hits and near-misses, not to mention absurd and irrational extensions.
But we still don’t have to say the word.
Eugene distinguishes its use as an intended epithet as opposed to its quoted mention for accuracy. He further replies to the cry of traumatization by arguing that greater exposure to the word will better prepare students to handle the trauma they are certain to experience when they leave the classroom and enter the well.
Can the word not be inherently offensive enough that it need not be backed up by claims of trauma? We’ve all seen and heard the word, and yet we’re not cowering in a corner weeping uncontrollably. It’s the most offensive word in the language but nobody “gets” PTSD from its utterance. Discussion based on such claims are not only false and childish, but distract from the point: It’s outrageously offensive and need not be uttered.
The pseudonymous Lawprofblawg** at Above the Law takes it a step (or ten) further.
The authors do not balance whatever value they claim is achievable solely through uttering slurs with the costs to the audience and to pedagogy. It’s easy for them to not balance those costs when they assume there are none. I’ll be frank here: The injury discussion reads a lot like “we don’t believe it’s that bad. Suck it up.” As the authors put it, “Some have argued that mentioning an anti-black slur in the classroom improperly ‘places a burden on Black students that other students do not face.’ We are skeptical about the magnitude of the burden; indeed, we doubt that it is materially greater than the normal burdens that students may face in many situations.”
There is an undeniable tension here between what compels a prawf or fellow classmate to utter the word and what students in the classroom take away. It may not be intended to be gratuitous. It may very well be intended as a “noble slur,” used to shock and remind as if Lenny Bruce was still alive today.*** but it’s so deeply offensive, so deeply mired in controversy and outrage, that it will overcome whatever putative pedagogical message was intended.
Volokh and Kennedy raise important points, and the notion of creating official rules, with official punishments, for students and prawfs who use the word crosses a line that should not be crossed if we’re to maintain free speech and academic freedom. Yet, LPB is right as well, that the word is offensive, serves no useful pedagogical purpose and will become the issue regardless of any contention to the contrary.
Perhaps this is the most naive conclusion possible, but we must maintain the right to say the word, and then we should maintain the sound discretion to never do so, even if it’s just to quote it. Just because we can does not mean we should. We shouldn’t. We don’t have to. The most valuable aspect of having a right to free speech is that we also have the right to choose not to speak, not to needlessly offend. I choose to exercise that right not to use the N-word and think it’s the best, and only, way out of this morass.
*Eugene spelled the word out. I substituted asterisks because I choose not to use the word. It is simply my choice, and my choice is not to say or write the word. Nor will I allow anyone to use it in the comments, and any comments using the word will be trashed. You’ve been warned.
**I questioned the use of the ‘nym for this post. I’m of the view that if you’re going to challenge a controversial argument, you should have skin in the game, meaning your name attached to your argument. LPB explained his position, which I accept as genuine even if I disagree.
***Bruce had the better solution, to take the sting out of words, all words, by their promiscuous use so that no use of epithets would have the power to offend (much like the perpetually outraged screaming “racist” or “sexist” on twitter). Alas, that didn’t happen and it’s not going to happen.
The problem is that the claim of offense (and more so, that of trauma) is dishonest, and demonstrably so. The word is used all the time, in alleged music and in general conversation, by, um, dark-skinned people. That isn’t offensive, much less traumatic–but if a lighter-skinned person says the word, it’s the worst thing ever. That just doesn’t fly. If the word’s offensive, it’s offensive, and nobody should say it. OTOH, if you’re capable of distinguishing whether it’s said by a white person or a black person, you’re similarly capable of figuring out the context in which the white person is using it.
I think many black people would agree with you. They’re neither stupid nor hypocritical. Others wield it like a weapon even when they know they’re using against someone who meant no harm. But then, many of those people aren’t black, but allies.
This isn’t to say some aren’t overly militant about it because they can get away with it, and believe eradicating the word is worth the cost.
The valid reason to object to quoting the word is because of social – and now legal – consequences. It’s mainly a conformity and self-preservation issue. To claim it is because of alleged “harm” is to implicitly claim that other slurs are harmless and those people’s feelings don’t matter enough for us to care. It’s the supremacist logic of selective humanization. Saying “but this word is uniquely toxic” is non-responsive to the argument and just underscores that point. Ban the quoting of all or ban none, and good luck finding the line.
Also, we are going to need a euphemism for “n-word” soon because people are getting a little too comfortable with it.
“Also, we are going to need a euphemism for “n-word” soon…”?
Yes, this is how all offensive terms evolve. crippled-> disabled -> handicapped -> differently abled -> persons with disabilities. Today’s tolerable word becomes intolerable when its usage becomes routine. There are similar series for the terms for ethnicities, races, sexual orientations, genders; and for some of them they cycle back to a word that previously was offensive, then wasn’t, then was again.
Words are often like hemlines, going up and down with fashion. The N-word, however, was never anything but a slur. As for the euphemism, EPP may be right that it will be deemed as evil as its root.
As for keeping it uniquely toxic, it’s one thing to have a word, one word, that everyone agrees is that bad. As soon as it expands beyond it, all bets are off. There is no limiting principle here.
I can’t say I follow your reasoning. Where I live, the overwhelming majority of times the N-word is uttered today, it is not a slur. It is when people who are not black use it that it is a slur. I think this is fine, for the same reason that I may direct an insult to my brother but you may not. But the fact that it is now used daily not as a slur shows how the N-word evolves much like other words evolve.
You can say it. You just did.
I’m more disturbed by the implication that caselaw content that is “triggering” can safely be, and ought rightly to be, excluded from legal education.
Only three footnotes?
I don’t think that’s what anyone is arguing, but simply to sub out the word for the euphemism when studying the case.
I have no issue with you self censoring slurs of whatever sort (which I’m sure you’re very relieved to hear, hanging on my every word regarding your policies), because I definitely think it’s a personal choice one needs to make, not a matter of legality so much as civility.
But these are law students. If they can’t handle hearing it in class, how are they going to carry themselves in front of a judge when representing a client and the word in question comes up?
Further to that, given the phrasing of their petition:
“At the height of a ‘racial reckoning,’ a responsible adult should know not to use a racial slur regardless of its use”
How would one discuss Matal v. Tam?
I guess maybe at the height of a racial reckoning you simply don’t cover such material. But isn’t refusing to cover it also insensitive, or trying to brush it under the carpet?
I hope these comments are received less poorly. I tried not to be an asshole today, but leopards and their spots, etc.
As I said in the post, and the innumerable times I’ve ridiculed the Play-Doh and puppy room crowd, I think it’s all a huge, steaming pile of bullshit with the adults pretending its real to pander to their unduly passionate little shits. That said, if it remotely true that hearing the word traumatizes them, then they need mental healthcare and can’t be allowed into the rough and tumble of a courtroom.
Your Matal v. Tam raises an interesting point, that there are cases where the word, like “Slants,” is integral to the case. Ain’t no way around the word, and that’s the point of the case.
This whole thing with trying to ban a word is ludicrous to the point that it carries the seed of its own destruction. People who are offended by it can get over it or they can be offended by it. It’s their issue to deal with.
I don’t do it for them. I do it for me. Needlessly offending is different than traumatizing.
B. McLeod.
“People who are offended by it can get over it or they can be offended by it. It’s their issue to deal with.“
I quite agree. However, the offended are forcing their version of reality on everyone else lest they be canceled.
We are getting closer and closer to a Stasi environment. They get to decide what word to use and if you don’t follow the party line, well…..
Laura Williams.
“If someone looked like he might challenge the Communist Party’s legitimacy or control, the Stasi systematically destroyed his life. They used blackmail, social shame, threats, and torture. Careers, reputations, relationships, and lives were exploded to destabilize and delegitimize a critic. Some forms of harassment were almost comical: agents spread rumors about their targets, flooded their mailboxes with pornography, moved things around in their apartments, or deflated their bicycle tires day after day. Others were life-altering: Individuals labeled as subversives were banned from higher education, forced into unemployment, and forcibly committed to asylums.“
Newspeak.
Sure, they may try. Sometimes it won’t go at all well, and eventually, people will tune out the perpetual cries of outrage.
You say Stasi like the #Resistance called Trump Hitler. Go too far in the hyperbole and everyone looks pretty much like a lunatic. There’s no need to go there as you can express the thought without invoking the Stasi.
It’s only a matter of time till the cops have a new territory to cover…
It’s good to see the old JB show up every once in a while.
I think the student should announce to the world. “You can all kiss my ass.” If you have a problem with said statement please turn your head to the left 90 degrees and prepare to discuss it with the bat headed towards your head.
No violence, Mom. Not gonna have it.
I don’t like violence either. But always have a but if a mob of inraged idiots in their maddened rage are harrasing someone over a word they themselves use daily maybe even every other that comes out of their mouths and are determined to destroy someone and their career and for all I know my life. Only a fool or a do gooder idiot would know at least the possibility of massive violance might just be employed in response against the loudest assholes in the mob. I know I live that leave me and mine alone screw with us and we will reply with 120% of what you used. If you get hurt or worse. Well you started it. You don’t get to start it and then with your shot in call it over and walk away.
Mom. Don’t make me pull this car over and trash your comments again.
So one group can say the “word” with no fear of any repercussions and the other group at the least lose their jobs and will face the hand of the government prosecution (extremism training) for uttering the same word or having the wrong thoughts. One would think that as a CDL you might see a little issue with the 14th.
What part of my position that there should be no official repercussions eluded your super reading comprehension skills?
I disagree with your general premise that the word shouldn’t be uttered ever again on account of it being so horrible. The fact is that there is a group of censorious asshats who have convinced enough people that words are actual violence. And those people want to move the goalposts further and further in what is and is not acceptable to say. We should not appease those people one bit.
The question is not over a word. It’s over intent. It’s whether you are insulting someone or not. Any same and rational person can tell that quoting a court case in a law school course is not an insult. By letting them make it about a word, they are pushing their censorship. Sure, it’s not a word we particularly need to use, until it’s actually frickin needed.
You, yourself have bemoaned the loss of words due to oversensitive crybabies. This, to me, is no different. Giv8bf in here justvlends credence to their censorship. Much as bad dudes often are the cases that make it to the SC for the line to be drawn, we draw the line here in this awful word now, so that we dont have to try and walk it back when it involves words we actually need.