Legal Law

N-Phrase Ipsa Loquitur

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On Friday, writing on the Volokh Conspiracy, Professors Randall Kennedy and Eugene Volokh noted apparent hypocrisy on the Above the Law pages. A columnist, Lawprofblawg, wrote a blistering critique of the use of the n-word in a classroom setting. But the good professors noted another ATL article, written by a different columnist nearly two years ago, where the n-word appeared, without euphemism, as part of a blockquote in the piece. From this hinge point of editorial inconsistency, the good professors went on to make their larger points in defense of the use of the n-word, by people of any color, when quoting other sources or documents.

I was still the lead editor for the site back in 2019 when the offensive blockquote was published (in a larger article about the legalization of drugs), so I’ll take responsibility for that error. I will note, in my own self-serving defense, that we are a thinly staffed operation that publishes over 20 stories a day. I surely never saw the post prior to publication, nor do I have any recollection of reading it afterwards (the columnist in question is actually one of our more conservative leaning contributors, and I try not to edit conservatives, lest I get all up in my feelings, make of that what you will). Still, I was in the big chair (I literally had a Post-It with my name on it affixed to the armrest, so people would stop stealing it) so content like that was ultimately my responsibility. That error was mine as much as anybody’s. I apologize.

Of course, the key point is that it was an error. If I had seen it or noticed it, I would have changed it to “[n*****]” or “[the n-word]” without even consulting the author. The fact that I didn’t see it or notice it is a failure. Perhaps, had this been a consistent problem on these pages, I would have issued an edict “All uses of the n-word shall henceforth be written as “the n-word.”” It’s a legal publication, rulemaking is always appreciated.

Why would I have changed the word? Because it costs me nothing. It costs the website nothing. It costs the writers and columnists nothing. Bleeping out that word requires all of five extra keystrokes, for the upside of not repeating a valueless slur. Would that I could bleep out “Republicans” as easily.

Is there a single person who in good faith believes that throwing some asterisks into that word confuses the reader about the nature of the content? Is there a person of good faith who believes that the use of an em-dash or euphemism detracts from the advocacy or accuracy of the piece? Is there really an argument that asterisks “sanitizes” bigoted quotes in a way that redounds to the benefit of the bigot?

No, nobody believes that, not even Kennedy or Volokh. In their article highlighting a post on Above the Law, they make no argument about how literally spelling out the word would have helped or enhanced the points made in the post. I can only assume they have no such arguments, an assumption buttressed by the fact no such arguments exist. The columnist’s point in that piece was that anti-drug laws are steeped in a history of racial intolerance. He used the quote to highlight some of the most obvious examples of said intolerance. Nobody reading that post would come away thinking “I wonder what that blockquote was all about? It seemed to be going somewhere, but then there were these confusing asterisks. If only somebody could tell me what was redacted, I might have learned more!”

Bereft of an argument for why spelling out the n-word in a written post would help the goals that post, it’s author, legal advocacy, or human society, the professors pivot to an (entirely different) argument about why the n-word should be used in a law school classroom setting (they also start throwing around the spelled out n-word so much that one thinks they’re reading the script of a new Quentin Tarantino movie). You’ve heard their argument before: Professors should use the n-word because students need to get comfortable hearing it… because reasons. They write: “The more we view the words as taboo in the law school classroom, the more we reinforce an attitude that will leave our students less prepared to deal with them in practice. ”

I didn’t practice for very long, but the things that law school “did not prepare me for” run the gamut from “Holy crap, you’re innocent and if we lose the government is going to kill you” to “Oh my God, you’re not actually innocent, and I have no idea where the guards are” (different clients). Taboo fucking words were not what kept me up at night (to the extent that I was allowed to sleep, which is another reality of practice “law class” doesn’t really explain all that well). The idea that if their white professors don’t use the n-word in class, law students (especially the Black ones) will not know what to do when they hear it is beyond ludicrous. Their argument actually infantilizes the students these guys seem to think are just being big babies.

And yeah, I did use “fucking” just now, without asterisks. I use curse words a lot when I write, even more when I talk. I use them for emphasis, for jokes, for shock value, or just because I fucking feel like it. I use them because, rightly or wrongly, I believe they add value to what I’m saying.

I don’t regularly use the n-word, even though I can (we can debate why I can and Volokh cannot at some other time) because I rarely see how that particular word adds any kind of value to whatever the hell I’m trying to convey. Kennedy and Volokh say they believe in the mention vs insult distinction in usage of the n-word, meaning that they think using the word as an insult is “bad,” while using it as mere reportage of something somebody else used as an insult is okay. I’d turn that argument around slightly: spelling out the n-word as a mere function of repetition like some kind of brainless parrot adds no value to anything and thus should be avoided. Using it as an invective, well at least I know you’re gunning for tenure at ASSlaw. Say what you will about the tenets of national socialism, but at least it’s an ethos.

But that’s just me, some guy writing a blog post. I’m not lecturing in front of a classroom of students. Is it really too much to ask a professor to avail themselves of the decorum provided by a euphemism in front of students? My God, my professors used to call me “Mr. Mystal,” in class. Not “Elie” or “Big Guy” or “You Race-Baiting Fuck” as are my more common appellations around the way. Adding the n-word to the list of “things not said in the name of classroom civility” really doesn’t feel like too high of a bar some 6,000 into this experiment in human civilization.

Look, I can prove I’m right about this. I’ve just written a whole article about a word I refuse to type out. IS ANYBODY CONFUSED? Does anybody NOT KNOW what word I’m talking about? Do I sound like my advocacy is being chilled or my speech rights are being “canceled”? Please tell me where in this article spelling out the word would have driven my point home. Show me the prize I would have won.

The argument in favor of the n-word is just silly. We’re talking about a law class, not a rap battle. The radio edit is just fine for pedagogical purposes.

Elie Mystal of The Nation can be reached @ElieNYC on Twitter.

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