Joel Cohen

Are race (or ethnic) slurs unsayable, even when material?

It’s oh-so-easy to raise the First Amendment flag to defend hate or taboo speech. The First Amendment, though, only applies in the instance of state action – when the government is the restricting engine of free speech.

It’s easy, too, on the other hand, to argue that segments of American society have become  obsessively fearful of potentially offending just one (maybe fragile) individual. It tells us that certain language, certain phrases, certain verbal conduct have become verboten  — no matter how educationally useful discussing them might be to critical discourse.

Some Black rappers (particularly gansta rappers) use the N-Word in many songs they sing. Nonetheless, the progressive populace that is particularly sensitive to racial inequities – some may call it “woke” – seem not to be complaining about its use in song.  They seem to claim that the rappers are articulating it only intending to depict reality and the “Black Experience.” These artists, then, are purportedly acting as modern day Marvin Gayes (“Make me wanna holler, the way they do my life”). It may be, some say, that the majority of their consumers are white – but it’s the Black rappers who are spreading this odious word.

Accordingly, some Black artists arguably take the liberty of employing this insidious word in order to communicate to “their own,” even if they incidentally, maybe purposefully, communicate them to non-Black consumers (who truly shouldn’t repeat them to others). “Marvin,” though, didn’t need to shock his listeners with disquieting lyrics simply to provoke serious introspections on the part of his avid listeners.

Notably, when the New York Times, in April, published John McWhorter’s essay titled “How the N-Word Became Unsayable”, that described the evolving nature of the N-Word, the iconic newspaper, that almost presents itself as being published on Mount Sinai every morning, chose to air a sidebar piece by its Opinion editor to explain precisely why it published McWhorter’s essay. His essay, indeed, uttered the offending word 24 times.  And both McWhorter and the Times went out of their way to point out that McWhorter, himself, is Black.

I imagine that if I composed an essay about the word “kike,” I’d mention my ethnicity  (although, given my surname, the reader would likely know that without the exculpating notation).  Query, though, if my essay about the K-Word were publishable by the Times, whether the paper would also present a sidebar explaining why it was publishing it at all, noting that the writer is Jewish. Good for the goose, after all.

The world began to appreciate the term “N-Word” during the 1995 O.J. Simpson trial.  Race was critical there of course, and (Black) prosecutor Chris Darden seized the moment quickly.  It was obviously a prosecutor’s tool to demonstrate how viscerally offensive the N-Word, particularly when used by LA police detective Mark Fuhrman, is to Black people — so much so that Darden couldn’t emotionally even bring himself to utter it aloud.  Nonetheless, Darden was employing a litigator’s strategic gesture, as the commentators certainly knew at the time. Actually, it also had the added benefit of making F. Lee Bailey, Simpson’s (now late) lawyer, look bad by so readily using the verboten word when cross-examining Fuhrman,  unintentionally presenting himself as quite comfortable using it. Maybe Darden, beguilingly employing critical race theory, was deliberately setting Bailey up, i.e., even Simpson’s lawyer doesn’t see the word as problematic.

Still, would a criminal lawyer today be required to forego using the actual word to cross-examine an officer who had employed the taboo word during a street arrest — for example, demanding that the Black suspect assume the position? There’s little chance that an experienced defense lawyer would pull his punches and ask the arresting police officer, “Didn’t you confront the suspect, saying: ‘N-Word, get up against the wall’” (as opposed to the actual word used)? And, why should he be required to? That’s the actual word that was used by the officer (although the lawyer might wisely explain to the court in advance why using the exact word would be invaluable in conveying the officer’s deplorable action, and how offensive it would have been to the accused or anyone hearing it).

So, let’s take it from the street and the courtroom to the classroom.  At Rutgers Law School, a New Jersey state school, by the way, there has been a giant uproar over a (white) student using the N-Word in a post-class zoom discussion among three students and the class’s criminal law professor where the student read a quotation containing the N-Word from a 1993 legal opinion. Precisely why she quoted the decision remains unclear.

We do know, though, that the student was referring to an actual decision by the New Jersey Supreme Court, State v. Bridges, 628 A. 2d 270 (Sup. Ct. N.J.), affirming Bridges’ conviction for murder and related crimes.  The opinion explained that Bridges had attended a birthday party consisting of about fifty teenagers in which Bridges got into an argument with another guest, resulting in a heated exchange. Bridges left the party angrily saying that he would return with his “boys.”  As he drove away, the New Jersey Supreme Court’s decision said, Bridges yelled “I’m going back to Trenton to get my [N-Words].”

While the use of the defendant’s use of the N-Word wasn’t pivotal to the New Jersey Supreme Court’s decision, it’s use in describing the facts, given that Bridges’ “boys” did participate in the murder, was certainly relevant in describing the facts.

Again, why the female student – reportedly older than most law students — chose to raise the quote is unclear. Yes, if the student’s mention of the Bridges’ quote was gratuitous without meaningful context, the mere quotation of it would have violated academic propriety.

The professor apologized, saying that she actually hadn’t heard the remark, and would have corrected the student had she. But why? — unless the reference was gratuitous. Beyond that, does this also mean, taking this incident to its logical conclusion, that the judge who wrote the opinion in 1993 should be taken to task for not having substituted the offending word in writing his opinion, employing instead “N-Word”?

So, if a plaintiff in a defamation lawsuit alleges that defendant used the N-word full on in his defamatory statement, does that mean that everyone, including the plaintiff himself and the Court, must sanitize the pleadings, motion papers, decisions and transcripts?  Can no one repeat, in writing or in argument, the malicious full word even if it is critical to the case?  Not to mention that the sheer odiousness of it would be impactful to the jury.  How far does this go? Is it only the likes of Lil Wayne, Tupac Shakur or 50 Cent – all of whom appear to have had no issue using the N-Word or variations of it in their songs – who would consider this ridiculous? And how interesting would it be if they didn’t?

Beyond the Rutgers incident, there is also some reportage that a St. John’s University professor was recently fired for reading from Mark Twain’s Puddin’head Wilson, a critical anti-slavery book which referenced the N-Word. That, after reportedly first explaining to the students the context of the word and having said that she hoped that it would not offend anyone. If this story is true, it’s somewhat disturbing.

As an aside, an important question is how far are Jews, by contrast, willing to accept the goose/gander metaphor when the offensive labels are directed at Jews in particular – when the words “Kike,”  “Shylock,” “Jew down,” “Yid,” “Hymie,” “Sheeny,” “Jewboy” or ”Hebe” are freely used?  How generous to the issue will Jews be when the shoe is on our foot?

Free speech shouldn’t be about anyone enthusiastically using offensive words for sport or for the mere demeaning quality of it.  But quoting a judge’s decision isn’t typically intended to diminish, hurt or slur — even if the authoring judge had been the likes of Supreme Court Justice Roger Taney whose hideous Dred Scott opinion viewed Black slaves as chattel.

As for those rappers who continue to express racial slurs to members of their own community, particularly women of color, that portion of society that is troubled by the Rutgers incident, the St. John’s incident and those similar to them, need to raise hell about those rappers too (and those consumers, Black or white, who are fans)  – in fact, far more loudly. The words they utter and the context in which they utter them are flatly unsayable, ever.  Makes me wanna holler!

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Petrillo, Klein & Boxer in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School and Cardozo Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and his latest book, "I Swear: The Meaning of an Oath," as well as works of Biblical fiction including “Moses: A Memoir.” The opinions expressed in this article are not necessarily those of the Petrillo, Klein & Boxer firm or its lawyers.
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