Nigger: The Strange Career Of A Troublesome Word Read online

  39. See Boyd v. United States, 732A.2d 854 (DC. Ct. App. 1999).

  40. 214 S.E. 2d 85 (i97i).

  41. Ibid. at 89.

  42. See State v.Tackett, 8 N.C. 210 (1820).

  43. Ibid., Id. at 217.

  44. Among the works I have found useful on this question are Alan M. Dershowitz, The Abuse Excuse and Other Cop-outs, Sob Stories, and Evasions of Responsibility (1994); Victoria Nourse, “The New Normativity: The Abuse Excuse and the Resurgence of Judgment in Criminal Law,” Stanford Law Review 50 (1998): 1435; idem, “Passion's Progress: Modern Law Reform and the Provocation Defense,” Yale Law Journal 106 (1997): 1331; Joshua Dressler, “When ‘Heterosexual’ Men Kill ‘Homosexual’ Men: Reflections on Provocation Law, Sexual Advances, and the ‘Reasonable Man’ Standard,” Journal of Criminal Law & Criminology 85 (1995): 726; Ann M. Coughlin, “Excusing Women,” California Law Review 82 (1994).

  45. Charles Lawrence III, “If He Hollers Let Him Go: Regulating Racist Speech on Campus,” Duke Law Journal, 1990, 452.

  46. See Richard Delgado, “Words That Wound: A Tort Action for Racial Insults, Epithets and Name-Calling,” Harvard Civil Rights-Civil Liberties Law Review 17 (1982): 133.

  47. Coughlin,“Excusing Women,”4.

  48. Ralph Ellison, Shadow and Act (1964), 111. Ellison seems to have been quite interested in the phenomenon of provocation. At the beginning of his best-known novel, for example, we encounter the following episode:

  One night I accidentally bumped into a man, and perhaps because of the near darkness he saw me and called me an insulting name. I sprang at him, seized his coat lapels and demanded that he apologize. He was a tall blond man, and as my face came close to his he looked insolently out of his blue eyes and cursed me, his breath hot in my face as he struggled. I pulled his chin down sharp upon the crown of my head, butting him as I had seen the West Indians do, and I felt his flesh tear and the blood gush out, and I yelled, “Apologize! Apologize!!”… And in my outrage I got out my knife and prepared to slit his throat. when it occurred to me that the man had not seen me. … I was both disgusted and ashamed. Invisible Man (1952), 4.

  49. My main guide on this matter is Dressler, supra, note 44.

  50. See generally Daniel Givelber, “The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct,” Columbia Law Review 82 (1982): 42.

  51. See Wilkinson v. Downton, 2 Q.B.D. 57 (1897). According to William Prosser, Wilkinson was “the leading case which first broke through the shackles of the older law” (Prosser on Torts [1971], 60).

  52. Bielitski v. Obadick, 61 Dom.L.Rep. 494 (1921). See also Prosser, Prosser on Torts, 61.

  53. Wilson v. Wilkins, 181 Ark. 137 (1930). See also Ruiz v. Bertolotti, 236 N.Y.S. 2d 854 (1962).

  54. Moore v. Savage, 359 S.W. 2d 95; 362 S.W. 2d 298.

  55. 355 F.Supp. 206 (S.D. Fla. 1973).

  56. 768 So. 2d 1198 (2000).

  57. 355 F.Supp. at 208.

  58. Ibid.

  59. Ibid.

  60. 768 So. 2d at 1199.

  61. Ibid. at 1201.

  62. Restatement (Second) of Torts, Section 46 (American Law Institute 1964).

  63. Calvert Magruder, “Mental and Emotional Disturbance in the Law of Torts,”Harvard Law Review49 (1936): 1023, 1035.

  64. 355 F. Supp. 206 at 211.

  65. Ibid.

  66. Bradshaw v. Swagerty 563 P.2d 513 (1977).

  67. Irving v.J. L. Marsh, 360 N.E. 2d 983 (1977).

  68. Dawson v. Zayre Department Stores, 499 A. 2d 648, 649 (1985).

  69. Jones v. City of Boston, 738 F.Supp 604 (1990). See also Caldor v. Bowden, 625 A. 2d 959 (1993).

  70. Lay v. Roux Labs., 379 So. 2d 451 (1980).

  71. Paige v. Youngstown Bd. of Educ, 1994 Ohio App LEXIS 5942 (1994).

  72. See Parker v. DPCE, 1992 U.S. Dist. LEXIS 16921.

  73. My rendition of the facts in this case is based on the court of appeals’ decision in Brown v. East Mississippi Elec. Power Ass'n, 989 F. 2d 858 (5th Cir. 1993), and the unpublished opinion of the trial court. It is also based upon the parties’ briefs, which Alison Steiner, counsel for the plaintiff, was kind enough to send me.

  74. 989 F. 2d at 861.

  75. Ibid.

  76. Ibid. at 862.

  77. Ibid.

  78. Ibid. at 861.

  79. Spriggs v. Diamond Auto Glass Co., 242 F.3d 179 (4th Cir. 2001).

  80. Ibid. at 182.

  81. See Harris v.Forklift Sys., Inc., 510 U.S. 17 (1993).

  82. Ibid. at 21.

  83. Ibid.

  84. 242 F.3d at 185 (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 [7th Cir. 1993]).

  85. Ibid.

  86. Bolden v. PRC, Inc., 43 F. 3d 545 (10th Cir. 1994).

  87. Ibid. at 551.

  88. Ibid.

  89. Ibid.

  90. See Eric Schnapper, “Some of Them Still Don't Get It: Hostile Work Environment Litigation in the Lower Courts,” University of Chicago Legal Forum 1999, 277. Some students of the hostile-workplace case law assert that courts tend to be more solicitous toward plaintiffs making racial-discrimination claims than toward those making gender-discrimination claims. See, e.g., Robert J. Gregory, “You Can Call Me a ‘Bitch’—Just Don't Use the ‘N-Word,’ ”DePaul Law Review 46 (1977): 741.

  91. 116 F.3d at 631.

  92. Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999).

  93. Ibid. According to another version of the facts, the supervisor stated that the sludge was “ass deep to a tall nigger” (191 F. 3d at 652).

  94. Ibid. at 659.

  95. Ibid. at 662.

  96. Cf. Steven Hetcher, “Creating Safe Social Norms In A Dangerous World,”Southern California Law Review 73 (1999): 1.

  97. United States v. Magleby 241 F.3d 1306, 1318 (10th Cir. 2001).

  98. United States v. Tocco, 200 F.3d 401,420 (6th Cir. 2000).

  99. Ibid.

  100. Robinson v. Runyon, 149 F.3d 507 (6th Cir. 1998). See also Heno v. Sprint/United Management Co., 208 F.3d 847 (10th Cir. 2000).

  101. Brown v. City of Hialeah, 30 F.3d 1433, 1434 (11th Cir. 1994).

  102. Ibid. at 1436.

  103. See, e.g., Alan M. Dershowitz, Reasonable Doubts: The Criminal Justice System and the O.J. Simpson Case (1997); Vincent Bugliosi, Outrage: The Five Reasons Why O. J. Simpson Got Away with Murder (1996); Jeffrey Toobin, Run of His Life:“The People v. O.J. Simpson” (1996).

  104. 1995WL 15923 at 21–24 (California Superior Court transcript, January 13, 1995).

  105. Ibid. at 25.

  106. Ross v. Douglas County, Neb, 234 F.3d 391 (8th Cir. 2000).

  107. Preston v. Preston, 627N.Y.S. 2d 518 (1995).

  108. Lee v. the Superior Court of Ventura County, 11 Cal. Rptr. 2d 763 (Cal. Ct. App. 1992). Actually, Lee petitioned to change his name to “Misteri Nigger” but stated that he intended for the i at the end of the first name to be silent (ibid.).

  109. Ibid. at 764.

  110. Ibid.

  3. Pitfalls in Fighting Nigger

  1. Leon F. Litwack, Been in the Storm So Long (1979), 59.

  2. See Charles Miller, “Constitutional Law and the Rhetoric of Race,” in Paul Finkelman, ed., African Americans and the Law (1992), 416; Mencken, American Language, 379; Irving Lewis Allen, “Sly Slurs: Mispronunciation and Decapitalization of Group Names,” Names 36 (1988): 217.

  3. See Aljean Harmetz, On the Road to Tara (1996), 144; Leonard J. Leff, “Gone With the Wind and Hollywood's Racial Politics,”Atlantic Monthly, December 1995.

  4. Hugh Rawson, Wicked Words (1989), 270.

  5. At the same time, Secretary Udall changed all “Jap” references to “Japanese.” See Mark Monmonier, Drawing the Line: Tales of Maps and Cartocontroversy (1995), 52. See also Lois Thomas, “What's in a Name,” In These Times, October 20, 1997; Richard Willing, “Cripple Creek, Squaw Tits, and Other Mapmaking No-Nos,” Washington Magazine,
June 1996.

  6. See Hamilton v. Alabama, 376 U.S. 650 (1964). See also Petition for Writ of Certiorari to the Supreme Court of Alabama, No-793 (filed January 29, 1964).

  7. William Bradford Huie, Three Lives for Mississippi (1965), 35.

  8. See Robert McFadden et al., Outrage: The Story Behind the Tawana Brawley Hoax (1990); Grand Jury of the Supreme Court, State of New York, County of Dutchess, Report of the Grand Jury and Related Documents Concerning the Tawana Brawley Investigation (1988).

  9. See Kathryn K. Russell, The Color of Crime: Racial Hoaxes, White Fear, Black Protectionism, Police Harassment, and Other Microaggressions (1998), 157; James Merolla, “Newport Woman Reports Getting More Racist Messages: Tisha Anderson Says She Is Afraid to Leave Her Apartment after Receiving Telephone Threats and a Note,” Providence Journal-Bulletin, November 16, 1995; “Anonymous Donor Offers Reward in Racist Threat; Police Report No New Leads on Slurs Scrawled on Walls and Steps of the Newport Green Apartment Complex,” Providence Journal-Bulletin, November 14, 1995. For a glimpse of the wasted effort, damaging confusion, and hurtful recrimination generated by this episode, see Celeste Katz, “Newport NAACP Branch Meets over Racist Attacks; They Question the Newport Police's Efforts and Demand Further Action in the Case of Tisha Anderson,” Providence Journal-Bulletin, November 18, 1995. For a murky case that seems to have involved another racial hoax in Providence, see Marion Davis, “Charges against Clemente Dismissed; Garrick Clemente Was Accused of Hiring Someone to Paint a Racial Slur on His Front Door,” Providence Journal-Bulletin, August 5,1996.

  10. Russell, The Color of Crime, 162; “Sentencing in False Report of Racism,” Seattle Times, December 11, 1996.

  11. Russell, The Color of Crime, 163; Caitlin Francke, “Hate-Crime ‘Victim’ Pleads Guilty; Tenant Painted Slurs in her Townhouse,” Baltimore Sun, January 16, 1997; Ed Heard, “Support Pours in for Targets of Racial Graffiti; North Laurel Family Gets Donations, Encouragement,”Baltimore Sun, April 26, 1996.

  12. Peter Applebombe, “Woman's Claim of Racial Crime Is Called a Hoax,” New York Times, June 1, 1990; see also Russell, The Color of Crime, 160.

  13. Applebombe, “Woman's Claim of Racial Crime Is Called a Hoax.”

  14. See Debra Dickerson, “The Last Plantation: The ‘Niggardly’ Scandal Should Teach Whites to Watch Their Language and Blacks to Toughen Up,” Salon, February 5, 1999.

  15. Julianne Malveaux, “Of N-Words and Race Men,” Black Issues in Higher Education, February 18, 1999. See also Roy Riley, “David Howard Is History Because of Indiscretion,” Washington Times, February 26, 1999: “Mr. Howard is history because he was not bright enough… not to utter the word ‘niggardly’ in a city that is predominately black.”

  16. See, e.g., Jonathan Yardley, “Cool Words Can Influence, So Drop Them,” Newsday, February 4, 1999; Steven Pinker, “Racist Language, Real and Imagined,” New York Times, February 2, 1999.

  17. Dickerson, “The Last Plantation.”

  18. Courtland Milloy, “Some Words Just Taste Unpleasant on the Tongue,” Washington Post, January 31, 1999.

  19. Sam Fullwood III, “D.C. Mayor Under Fire in War of Words over Word Use,” Los Angeles Times, January 29, 1999.

  20. Barry Saunders, “That D.C. Style: A Kinte Cloth Mantle of Oppression,” News and Observer (Raleigh, North Carolina), February 6,1999.

  21. Tony Snow, “Linguistic Lynching over ‘Niggardly,’ ” Des Moines Register, February 3, 1999. See also editorial, “Obsessing over the N-Word,”Hartford Courant, February 3, 1999 (“Talk about the excesses of political correctness: last week, an assistant to Washington's new Mayor lost his job for being literate. … A person shouldn't lose his job because others misunderstood proper word usage”); Lynda Hill, “A Word, a Hairtrigger Racial Sensitivity, a Job Lost,” Christian Science Monitor, February 3, 1999; Ken Hamblin, “PC Police Strike Again,” Denver Post, February 2, 1999; Cynthia Tucker, “The Blacker-Than-Thou Thing,” Denver Post, February 2, 1999.

  22. See Gwen Carleton, “ ‘Niggardly’ Upsets UW Student,” Capitol Times (Madison, Wisconsin), February 2, 1999.

  23. Natalie Anderson, letter to the editor, Boston Magazine, May 1998.

  24. Sandra B. Fleishman, letter to the editor, Boston Magazine, May 1998.

  25. Craig Unger, “A Letter from the Editor,” Boston Magazine, May 1998.

  26. See Lawrence Otis Graham, “Head Nigger in Charge: Roles That Black Professionals Play in the Corporate World,” Business and Society Review, June 22, 1995.

  27. See, e.g., Stan Simpson,“In Defining the N-word, Let Meaning Be Very Clear,” Hartford Courant, November 3, 1997: “What would happen if a white friend were to come up to me and say [as does my black brother], ‘Hey, Nigger! How are you doing?’ Well, excuse my ebonics, but we be fightin’.”

  28. Listen to Chris Rock, “Niggers vs. Black People,” on Roll with the New (1997). For the video performance, see Chris Rock, Bring the Pain (1996).

  29. Quoted in Kathleen Pfeiffer, introduction to Carl VanVechten, Nigger Heaven (University of Illinois Press ed., 2000; orig. pub. 1926), xiv.

  30. Quoted ibid.

  31. Quoted ibid., xiv, xxx, xxxi.

  32. Quoted ibid., xxx.

  33. Quoted ibid., xxvii.

  34. See Kevin Merida, “Spike Lee, Holding Court: The Director Talks Movies, Hollywood, Basketball and, Oh Yes, Controversy,” Washington Post, May 1, 1998.

  35. See Lynne K. Varner and Hugo Kugiya, “What's in a Name?—A Hated Racial Slur Finds New Currency—and Controversy—in Popular Culture,” Seattle Times, July 6, 1998.

  36. See Richard Corliss, “The Scheme of a Notion,” Time, October 9, 2000; “Spike's Minstrel Show,” Newsweek, October 2, 2000.

  37. Delphine Abraham, “Changing Webster's Dictionary,” Essence, March 1998.

  38. Ibid.

  39. “NAACP Leader Kweisi Mfume Says Merriam-Webster's Decision on Use of Racial Slurs Is ‘Unacceptable,’ ”Jet, May 25, 1998.

  40. See John M. Morse, “Sparing Sensitivities Isn't Dictionary's Job,” USA Today, May 11, 1998.

  41. Quoted in Jar vis DeBerry, “Keeping a Hateful Word inside a Dictionary,” New Orleans Times-Picayune, June 23, 1998.

  42. John H. Wallace, “The Case against Huck Finn,” in James S. Leonard, Thomas A. Tenney, and Thaddious M. Davis, eds., Satire or Evasion: Black Perspectives on “Huckleberry Finn” (1992), 16.

  43. Mark Twain, Adventures of Huckleberry Finn, ed. Thomas Coo-ley, Norton critical ed., 3d ed. (1999).

  44. Wallace, “The Case against Huck Finn,” 21.

  45. See Shelley Fisher Fishkin, Lighting Out for the Territory: Reflections on Mark Twain and American Culture (1996), 73-74.

  46. Quoted ibid., 82.

  47. See, e.g., Jane Smiley, “Say It Ain't So, Huck: Second Thoughts on Mark Twain's ‘Masterpiece,’ ” in Adventures of Huckle-berry Finn, Norton critical ed.

  48. See United States v.J.H.H., 22 F.3d 821 (8th Cir. 1994).

  49. See Dambrot v. Central Mich. Univ., 55 F.3d 1177 (6th Cir. 1995). See also Michael P. Pompeo, “Constitutional Law—First Amendment—Athletic Coach's Locker Room Speech Is Not Protected under First Amendment, Even Though University Policy Is Found Unconstitutional—Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995),” Seton Hall Journal of Sport Law 6 (1996): 277. My understanding of Dambrot has also been enriched by conversations with Professor Robert A. Sedler, who represented Coach Dambrot on appeal.

  50. See First Brief of Plaintiffs-Appellants–Cross-Appellees in Dambrot v. Central Mich. Univ. at 6 (quoting Complaint of Keith Dambrot).

  51. Ibid. Coach Dambrot had also said on one occasion prior to the locker-room incident that his players should not be “niggers in the classroom.” Questioned later about that comment, the coach explained that he had been trying to express his feeling that “you can't be aggressive, tough, hard-nosed in class, especially at a school like Central Michigan University where the faculty members don't understand a lot about black peo
ple or have many black people in class” (55 F.3rd at 1181).

  52. First Brief of Plaintiffs-Appellants–Cross-Appelless, Dambrot v. Central Mich. Univ. at 10 n. 4.

  53. Ibid. at 11–12 n. 7.

  54. Ibid. at 12–13 n. 9.

  55. Ibid. at 13 n. 11.

  56. Other coaches have used nigger in the same way Dambrot did. For example, testifying on Dambrot's behalf, Adele Young, an African American basketball coach, explained that “a coach is around the players seven days a week, nine months of the year. The players are a part of the coach's family. A coach can pick up the players’ language and speech patterns without being aware of a change.… My players, both African-American and White, use [nigger] freely as I do in the coach setting. When used in this way, ‘nigger’ means a tough, hard player. Coach Dambrot understood the way players use ‘nigger’ and when he used it, he used it the very same way they did” (Ibid. at 9).