Nigger: The Strange Career Of A Troublesome Word (15 page)

The student's statement, generous as it is, needs a bit of qualification. The offer of a second chance ought not to be automatic but should instead hinge on such variables as the nature of the offender's position and the purpose behind his or her remark. In contrast to District Attorney Spivey, the teacher held a position that, while important, did not entail her exercising powers like those wielded by a prosecutor. Moreover, again in contrast to District Attorney Spivey, the teacher was not attempting to humiliate anyone. She was simply trying to instruct her students for their own benefit, albeit in a regrettable manner. In such circumstances she, like Coach Dambrot, deserved a second chance.

Advocates of broader prohibitions against “hate speech” maintain that the current legal regime is all too tolerant of
nigger-
as-insult and other forms of racial abuse. Several of the most
prominent of these advocates—notably Charles Lawrence, Mari Matsuda, and Richard Delgado—have, in their positions as professors in law schools, provided intellectual underpinnings for campaigns aimed at banishing hate speech.
⁵⁹
They and their allies have succeeded in persuading authorities at some colleges and universities to enact new speech codes. They have succeeded, too, in shaking up and enlivening civil libertarians, a group that had become intellectually complacent in the absence of a strong challenge. They have been unable, however, to sway the judiciary and have thus been forced to witness the invalidation of speech codes tested in litigation.
⁶⁰
They have also largely failed to capture opinion. In the American culture wars of the
1980
s and
1990
s, the left-liberal multiculturalists who sought increased regulation of hate speech were soundly trounced by a coalition of opponents who effectively derided them as censorious ideologues—otherwise known as the P.C. (Political Correctness) Police.

The point, however, is not simply that the champions of speech codes lost on a variety of important fronts; it is that they
rightly
lost. For one thing, proponents of enhanced hate-speech regulation have typically failed to establish persuasively the asserted predicate for their campaign—that is, that verbal abuse on college campuses and elsewhere is a “rising,” “burgeoning,” “growing,” “resurgent” development demanding countermeasures.
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Regulationists do cite racist incidents on campus—the African student at Smith College who found a message slipped under her door reading, “African Nigger do you want some bananas?”;
⁶²
the counselor at Purdue University
who was greeted by the words “Death Nigger” etched onto her door;
⁶³
the taunt written on a blackboard at the University of Michigan: “A mind is a terrible thing to waste— especially on a nigger”
⁶⁴
—but too often the dramatic retelling of an anecdote is permitted to substitute for a more systematic, quantitative analysis. Indeed, some commentators do not even seriously attempt to document their assertions but instead simply note a number of apparently outrageous events and then charge, without substantiation, that these episodes are, for example, representative of “a rise in the incidence of verbal and symbolic assault and harassment to which black and other traditionally subjugated groups are subjected.”
⁶⁵
A list of twenty, fifty, one hundred, or even three hundred racist incidents may appear to offer a terrible indictment of race relations on American campuses—until one recalls that there are hundreds of institutions of higher education across the country. Bearing in mind the numbers of young collegians who are constantly interacting with one another, often in close quarters, is a useful aid for keeping in perspective the catalogue of racist episodes that regulationists point to as the predicate for what they see as urgently needed reform.

A persuasive assertion that racially assaultive speech is on the rise ought logically to entail positing that there was a greater incidence of such speech in year
Y
than in year
X.
Demonstrating such a trajectory, however, is a daunting enterprise. After all, even when one is able to say that the number of reported incidents in a certain year was greater than the number of reported incidents in another year, there remains the problem of determining whether the reporting itself was a
mirror of reality or a result of efforts to elicit from subjects their dissatisfaction with conduct they perceived to be offensive. Acknowledging such complications opens the way to considering alternative interpretations to those put forth by the regulationists. One alternative is that the growing number of reported episodes involving hate speech is a function of both an increased willingness to report perceived insults and an increased willingness to record them, which would mean that the perception of a rising tide of racial vilification is an illusion that paradoxically signals progress rather than regress. Or it may be that the regulationists are correct—that increased reporting does in fact reflect a greater incidence of verbal abuse. Even if that is so, however, there remains a question of interpretation. Here again, it is possible that episodes of verbal abuse are actually indicative of racial progress. On some campuses, for example, racist verbal abuse may not previously have been a problem simply because there were too few blacks around to generate racial friction. More recently, with the advent of a critical mass of black students, the possibilities for racial conflict may have escalated. At institutions where this is the case, increasing numbers of racial insults could be merely a function of more frequent interracial interaction and all that comes with it—for good and for ill.

Proponents of enhanced speech codes portray blacks on predominantly white campuses as being socially isolated and politically weak. Yet the regulationists clearly believe that the authorities to whom they are appealing are likely to side with these students and not with their antagonists. This, as Henry Louis Gates Jr. observes, is the “hidden foundation for the
[anti–] hate speech movement.…You don't go to the teacher to complain about the school bully unless you know the teacher is on your side.”
⁶⁶

Resorting to school authorities, however, has had its own costs. In stressing the “terror” of verbal abuse, proponents of hate-speech regulation have, ironically, empowered abusers while simultaneously weakening black students by counseling that they should feel grievously wounded by remarks that their predecessors would have shaken off or ignored altogether.

An examination of the substance of the regulationists’ proposals turns up suggested reforms that are puzzlingly narrow, frighteningly broad, or disturbingly susceptible to discriminatory manipulation. In
1990
, after much debate, Stanford University prohibited “harassment by personal vilification,” which it defined as speech or other expression that

Perhaps the most notable feature of this provision is how little it accomplished. One of the incidents at Stanford that had fueled the call for a speech code in the first place involved the defacement of a poster bearing a likeness of Beethoven. After
an argument with a black student who claimed that the composer had been partly of African descent, white students darkened a portrait of him and exaggerated the curliness of his hair and the thickness of his lips. They then affixed their negrofied poster to the door of the black student's room. Regulationists were outraged by this conduct, which they perceived as being aggressively racist. But the Stanford code would not have covered this action or, for that matter, most of the other verbal or symbolic “assaults” about which regulationists complain. During the first five years of Stanford's code, in fact, no one was ever charged with a violation. Some might argue that this record suggests that the code effectively prevented bad conduct, thus obviating the need for disciplinary proceedings. But a more plausible explanation is that conduct of the sort prohibited by the code was virtually nonexistent before its enactment and virtually nonexistent afterward—a veritable straw man.
⁶⁸

The Stanford code covered a single, specific type of speech: vulgar racial insults directed from one person to another in a face-to-face encounter. Such exchanges do happen; at the University of Wisconsin, for instance, a group of white male students reportedly followed some black female students, all the while shouting, “I've never tried a nigger before.”
⁶⁹
But conduct of this sort is sanctionable via traditional legal machinery (or if not through reputation-besmirching publicity), without resort to newfangled modes of repression. It is likely, moreover, that especially on a college campus, antiblack polemics that are polite, skillful, and conventionally garbed—think of
The Bell Curve
—will be far more hurtful to African Americans
than the odd
nigger, coon, jigaboo
, or other racial insult, which in any case will almost certainly be more discrediting to the speaker than to the target. Yet under the Stanford code, the damaging but polite polemic is protected, while the rude but impotent epithet is not. This problem of underinclusiveness is a major embarrassment for the regulationist camp because, as Gates notes, “the real power commanded by the racist is likely to vary inversely with the vulgarity with which it is expressed. Black professionals soon learn that it is the socially disenfranchised—the lower class, the homeless—who are more likely to hail them as ‘niggers. 'The circles of power have long since switched to a vocabulary of indirection.” By focusing on vulgar words that wound, regulationists “invite us to spend more time worr[ying] about speech codes than [about] coded speech.”
⁷⁰

Because speech codes of the Stanford variety fail to address what some regulationists see as intolerable forms of speech, broader prohibitions have been proposed. Professor Charles Lawrence, for example, has urged that the ban on racial epithets be extended beyond the context of face-to-face encounters, while Professor Mari Matsuda has advocated punishing “racist speech” in general. Such proposals, however, encroach upon legal doctrines that have helped to make American culture among the most open and vibrant in the world.
⁷¹
Under the overbreadth doctrine, regulation must be narrowly drawn so as to touch only that conduct which a governing authority may validly repress; where a regulation sweeps within its ambit a substantial amount of protected speech along with unprotected conduct, the overbreadth doctrine instructs
courts to invalidate the regulation. Under the vagueness doctrine, regulation that may chill protected expression must be drawn with especially rigorous exactitude. And under the doctrine of content neutrality, a governmental authority cannot prohibit certain forms of speech merely because it objects to the ideas or sentiments the speaker seeks to communicate. To quote one of many Supreme Court pronouncements on this theme: “If there is one star fixed in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”
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The cumulative effect of these and related speech-protective doctrines is a conspicuous toleration of speech and other representations that many people—in some instances the vast majority of people—find deeply, perhaps even viscerally, obnoxious, including flag burning, pornography, Nazis’ taunting of Holocaust survivors, a jacket emblazoned with the phrase “Fuck the Draft” worn in a courthouse,
The Satanic Verses, The Birth of a Nation, The Last Temptation of Christ.
And just as acute wariness of public or private censorship has long furthered struggles for freedom of expression in all its many guises, so has resistance against censorship always been an important and positive feature of the great struggles against racist tyranny in the United States, from the fight against slavery to the fight against Jim Crow.
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For this reason, we may count ourselves fortunate that the anti–hate-speech campaign of the regulationists fizzled and has largely subsided. This particular effort to do away with
nigger
-as-insult and its kindred symbols was simply not worth the various costs that success would have exacted.

Finally, I turn to the eradicationists—those who maintain that
all
uses of
nigger
are wrongful and hurtful and ought to be condemned by dint of public opinion. Their absolutist position simply fails to acknowledge adequately either the malleability of language or the complexity of African American communities. Even the proponents of enhanced speech codes—the “regulationists” whom I have just criticized—make a distinction between racist and nonracist, impermissible and permissible usages of the N-word. Professor Delgado has proposed, for example, that whites who insultingly call blacks niggers should be subject to suit for money damages. He goes on to explain, however, that the salutation “ ‘Hey, nigger,’ spoken affectionately between black persons and used as a greeting, would not be actionable” under his scheme.
⁷⁴
Similarly, though without expressly mentioning
nigger
, Professor Matsuda has indicated that her approach would allow words generally seen as racial insults, and thus otherwise prohibitable, to be protected in the context of a “particular subordinated community” that tolerated the use of such terms as a form of “wordplay.”
⁷⁵
She elaborates, “Where this is the case, community members tend to have a clear sense of what is racially degrading and what is not. The appropriate standard in determining whether language is persecutorial, hateful, and degrading is the recipient's community standard. We should avoid further victimization of subordinated groups by misunderstanding their linguistic and cultural norms.”
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