As we have seen, nigger can mean many different things, depending upon, among other variables, intonation, the location of the interaction, and the relationship between the speaker and those to whom he is speaking. Generally a reference to people of color, particularly blacks, nigger can refer to people of any hue. Senator Robert C. Byrd (D–West Virginia) got into trouble for saying publicly that he “had seen a lot of white niggers in [his] time.”111 But more and more the word is being applied ecumenically. Sociologist John Hartigan reports that poor whites in Detroit often refer to their white neighbors as niggers.112 Typically they mean the word as an insult. But they do not necessarily mean for it to be a racial insult. Responding to an inquiry about a white-on-white deployment of nigger, one of the participants in Hartigan's study remarked: “He's a nigger, man, and you know what I mean by that. He's an asshole, and it doesn't matter whether a person's black or white, orange or plaid, he can still be a nigger if he runs his mouth like that asshole.”113 Another white Detroiter observed by Hartigan echoed this sentiment. “You don't have to be black to be a nigger,” he declared. “Niggers come in all colors.” (Interestingly, he added: “We are all colored.…There's about a hundred shades of white.”)114
The linguist Arthur K. Spears has also discerned an appreciable revision of nigger's racial usage. He writes that “White public school teachers hear themselves referred to as ‘that White nigga’ or simply ‘nigga,’ and [that] Asian Americans in San Francisco can be heard, as they navigate high school hallways, to call one another niggas.”115
More vividly than most words, then, nigger illustrates Justice Oliver Wendell Holmes's observation that “a word is not a crystal, transparent and unchanged.” A word is instead “the skin of a living thought [that] may vary greatly in color and content according to the circumstances and the time in which it is used.”116
CHAPTER TWO
Nigger in Court
In September 1957, Congressman Charles C. Diggs Jr. of Michigan traveled to Sumner, Mississippi, to see firsthand the trial of two white men charged with the murder of a black fourteen-year-old from Chicago. Emmett Till had been killed for violating Jim Crow etiquette by, among other things, whistling at the wife of one of the defendants. In Sumner, Diggs encountered segregation in full bloom. Greeting a bevy of black reporters from across the country, the local sheriff cheerfully shouted, “Hello, niggers,” without a hint of self-consciousness. One of these reporters, James Hicks of the Amsterdam News, sought to secure a seat in the segregated courtroom for Representative Diggs. Professor Stephen J. Whitfield tells what happened:
Diggs had wired Judge Curtis L. Swango of the Seventeenth Judicial District to ask whether he might attend the trial. The judge, a tall, informal forty-seven-year-old, a graduate of Millsaps College in Jackson and of the law school at “Ole Miss,” invited him down. But by the time the representative got inside the courtroom, the whites and then the blacks had already taken all the seats. Diggs gave his card to Hicks, who started to walk up to the judge's bench but was accosted by a deputy who inquired: “Where you going, nigger?” When Hicks explained his mission and showed the deputy the card, another deputy was called over and told: “This nigger said there's a nigger outside who says he's a Congressman.…”
“A nigger Congressman?”
“That's what this nigger said,” and then the first deputy laughed at so blatant a contradiction in terms. But the sheriff was summoned and then told Hicks: “I'll bring him in here, but I'm going to sit him at you niggers’ table.” And that is where the representative sat.1
Although nigger was in the air throughout the Emmett Till case—from the promising indictment to the appalling acquittal—debate over the word did not play a central role in the litigation. In many other cases, though, such debate has occupied a salient place in the legal wrangling, generating a distinctive jurisprudence that can be divided into at least four categories. The first of these comprises cases in which a party seeks relief after it is revealed that officials within the criminal justice system—jurors, lawyers, or judges—have referred to blacks as niggers. The second encompasses cases in which an individual who kills another seeks to have his culpability diminished on the grounds that he was provoked when the other party called him a nigger. The third type of case involves controversies surrounding targets of racial invective who sue for damages under tort law or antidiscrimination statutes. And the fourth category consists of situations in which a judge must decide whether or not to permit jurors to be told about the linguistic habits of witnesses or litigants.
In 1978 in Columbus, Georgia, a jury handed down a death sentence for one William Henry Hance, who had committed multiple murders. After the trial two jurors revealed that they had heard fellow jurors make racially derogatory remarks about the defendant. More specifically, one juror maintained that during their deliberation, other jurors had referred to Hance as a “typical nigger” and “just one more sorry nigger that no one would miss.” No court investigated the accuracy of these allegations prior to Hance's execution.2
Any defendant who seeks to challenge a conviction or sentence on the basis of prejudiced jury deliberations is very unlikely to prevail. First, federal and state rules of evidence stringently exclude juror testimony that impeaches a jury's verdict. And second, many jurisdictions require defendants to show actual prejudice resulting from juror misconduct.3
It is understandable that the legal system should want to promote finality, protect jurors from harassment, and shield the privacy and independence of jury deliberations. Still, it is chilling to think that a person could be sentenced to death pursuant to deliberations tainted by nigger.4 The use of the word raises concerns not only about the attitudes of the jurors who said it but also about the attitudes of the jurors who heard it. In 1985 social psychologists Jeff Greenberg and Tom Pyszczynki performed an experiment aimed at determining how listeners were affected by overhearing racial slurs directed at specific targets. They asked groups of white college students to judge debates between white and black contestants. Immediately after the debates, persons working in concert with the experimenters either derogatorily referred to the black contestants as niggers, criticized them in a nonracist manner, or made no comment at all. Greenberg and Pyszczynki found that observers who overheard the insult exhibited a marked tendency to lower their evaluation of the slurred black debaters. This suggested, the researchers argued, that racial slurs “can indeed cue prejudiced behavior in those who are exposed to [such slurs],” a phenomenon that could well have practical significance in such settings as “parole board meetings, promotion committee meetings, and jury deliberations, in which [racial] slurs may be expressed by one member of a group, be overheard, and then affect the evaluations of the target by other members of the group.” Nigger, Greenberg and Pyszczynki concluded, was not merely a symptom of prejudice but a carrier of the disease.5 The risk in Hance was thus not simply that the manifest racial prejudice of two jurors might have eroded their ability to determine facts and set an appropriate punishment, but also that the use of nigger might have transmitted the pair's prejudice to other jurors, awakening latent biases or creating racial animus where none had previously existed.
Judges, too, use the N-word. In the late 1960s, H. Rap Brown, the former head of the Student Nonviolent Coordinating Committee (SNCC), was convicted of a firearms violation. After the conviction, a lawyer stepped forward with information suggesting that the judge who had presided over the trial harbored a prejudice against Brown. According to this lawyer, the judge had said that he was “going to get that nigger.”6 At a postconviction hearing, a new judge found the lawyer's statement to be credible but decided nonetheless to affirm the conviction and sentence. He ruled that notwithstanding the initial judge's unfortunate comment, the defendant had had a fair trial. The court of appeals subsequently reversed his decision and vacated Brown's conviction. In doing so, it relied on a federal statute that requires the mandatory disqualification of a judge “ ‘in any proceed
ing in which his impartiality might reasonably be questioned’ or ‘where he has a personal bias or prejudice concerning a party.’ ”7 The court of appeals emphasized that the trial judge's remark had undercut the appearance of impartiality. It also concluded that it could not suitably determine from the trial record alone whether or not the defendant had received a fair trial.
The reversal of Brown's conviction is an inspiration compared to Hance. Still, there remains the disquiet of knowing that the judge remained in office, in a position to adjudicate disputes involving others whom he may well have called niggers in private. How must it have felt to be a black litigant in Judge Lansing L. Mitchell's courtroom the day after the reversal of H. Rap Brown's conviction?
This raises the question of what should be done about officials such as Judge Mitchell. The federal Constitution offers great—in my view excessive—security to federal judges inasmuch as they cannot be removed from office except by the famously cumbersome process of impeachment by the United States House of Representatives and conviction by the United States Senate. Other jurisdictions are able to handle matters of judicial bias more expediently. In 1994, for example, the California Supreme Court suspended Judge Stanley Z. Goodfarb for making repeated derogatory references to “niggers” off the record in his chambers, where he believed himself to be immune from the disapproval of observers.8 In 1998 the Supreme Court of Michigan removed a judge who, in tapes surreptitiously made by her husband, was revealed as a person who constantly referred to blacks demeaningly as niggers.9
In 1999 a state court in New York removed J. Kevin Mulroy from a judgeship based on several incidents. In one case, Judge Mulroy had attempted to persuade a prosecutor to accept a plea bargain from four men indicted for murdering and robbing a sixty-seven-year-old African American woman. The judge told the prosecutor that he should not worry about the case since the victim had been just “some old nigger bitch.”10 In castigating Mulroy for this remark, the court observed that he had “devalued the life of the victim in a most non-professional, disturbing, and inappropriate way. … A judge's use of such language indicates an unacceptable bias and insen-sitivity that [have] no place on the bench and [warrant] the severest possible sanction.”11
Case law documents instances in which prosecutors in open court have referred to African American defendants as niggers.12 In 1911 a Mississippi prosecutor told a jury, “This bad nigger killed a good nigger. The dead nigger was a white man's nigger and these bad niggers like to kill that kind. The only way you can break up this pistol toting among these niggers is to have a necktie party.”13 (Decades later, the good nigger/bad nigger distinction would remain in force: explaining why he had killed a black man and his wife shortly after World War II, one white bigot recalled, “Up until George went into the Army, he was a good Nigger. But when he came out, [he and his wife] thought they were as good as any white people.”)14 In 1907 a prosecutor in Texas stated that he was well enough acquainted with a certain “class of niggers to know that they have got it in for the [white] race.”15 A prosecutor in Alabama in 1922 demanded of a presumably all-white jury, “Are you gentlemen going to believe that nigger [defendant] sitting over there … in preference to the testimony of [white] deputies?”16 A prosecutor in Texas in 1970 asked a witness if he would have gotten out of his car “for three nigger men at night if they hadn't had guns.”17 Although there has long been a consensus that such slurs are prohibited, courts have generally declined to reverse convictions stemming from proceedings in which the N-word was used if the trial judge admonished the prosecutor and instructed the jury to disregard the offending language. Such was the outcome, for example, in the 1922 and 1970 cases described above. Appellate judges are understandably loath to award a windfall to a vicious criminal who happens to have been prosecuted by an undisciplined bigot. That is why they tend to uphold convictions provided they have some indication that the original trials were not irredeemably polluted by racist language. There is no good excuse, though, for the general failure of judges and local bar associations to discipline lawyers who demean courtroom proceedings with blatantly racist language. I have never heard of a case in which a prosecutor faced discipline for using an insulting version of nigger in the courtroom.
In one remarkable case, however, a prosecutor was disciplined for using the N-word outside of court.18 In the early-morning hours of June 30, 1995, Jerry L. Spivey, the elected district attorney of the Fifth Prosecutorial District of North Carolina, got inebriated in a bar in Wrightsville Beach and was heard to say regarding another patron, “Look at that nigger hitting on my wife.” The patron to whom he was referring was Ray Jacobs, a professional football player with the Denver Broncos who had previously been a college star in North Carolina. A little later, when Spivey's wife sought to introduce the two men and began by asking her husband whether he recognized Jacobs, the district attorney responded by saying, “He looks like a nigger to me.” That comment was followed by others in which District Attorney Spivey, with an increasing degree of drunken agitation, repeatedly referred to Jacobs as a nigger. Eventually the bartender ejected the district attorney from the establishment.19
Soon thereafter, several attorneys petitioned a judge to remove Spivey from his post pursuant to a state law authorizing such an action in the event of misconduct prejudicial to the administration of justice and bringing an office into disrepute. During a hearing, expert testimony was elicited from the distinguished historian John Hope Franklin on the history and meaning of the word nigger. The judge also heard testimony from other members of the community who told the court about experiences they had had with the N-word and described their perception of the district attorney in light of his racial language. One man recounted the following painful memory from his days in the Air Force in the 1950s: “I was coming in from an overseas assignment and I stopped in Arkansas to get some gas and a sandwich. Three kids with me. We walked up, put the gas in the car. Stopped at the side window to get a sandwich and from the inside we were told, ‘We don't serve niggers here.’ I said, ‘We simply want to get a sandwich.’ He took my money for the gas and we turned and walked [away]. My little kid asked me, ‘Daddy, what's a nigger?’ ”20 Questioned about the effect that incident had had on him, the man responded tearfully that he had never stopped hurting. When asked to react to the district attorney's use of the N-word, he remarked, “To me it says that it doesn't matter what you have accomplished in life … if you have a black face… you are less than a person.”21
The judge removed Spivey from office. The former district attorney appealed, arguing, among other things, that his federal First Amendment rights had been violated. There was some irony in his claiming that the state had wrongfully punished him for giving voice to protected expression, since he simultaneously insisted that what he had said did not at all express his true sentiments or beliefs. “I am sorry,” he testified, that “I used the word nigger.… That word occupies no place in my day-to-day vocabulary, and that word in no way reflects my beliefs about, or feelings and attitude toward, people of African American heritage.”22 While in one breath Spivey complained of being a victim of censorship based on the substance of disfavored remarks, in the next he asserted that his outburst had been little more than a verbal belch— rude, yes, but substantively meaningless.
The North Carolina Supreme Court affirmed Spivey's removal and in the course of doing so rebuffed his First Amendment challenge, ruling that his language was covered by that amendment's fighting-words exception. In Chaplinsky v. New Hampshire, the 1942 case that established the fighting-words doctrine, the United States Supreme Court observed, “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”23 Applying Chaplinsky, the North Caroli
na court ruled that Spivey's outburst had constituted a “classic” case of unprotected fighting words.24 Elaborate hearings, the court maintained, were not needed to determine the effects of nigger on black targets. “No fact is more generally known,” it declared, “than that a white man who calls a black man a ‘nigger’ within his hearing will hurt and anger the black man and often provoke him to confront the white man and retaliate.”25
While the court ruled rightly in Spivey, there is good reason to reject the fighting-words doctrine on which its decision largely rested. Although Chaplinsky offers two bases on which language may be deemed fighting words, subsequent case law makes it clear that the primary and perhaps the exclusive grounds for declining to give First Amendment protection to so-called fighting words is that under certain circumstances, such language will either incite or be likely to incite an immediate breach of the peace by a target who responds impulsively and with violence. Thus, in a hypothetical dispute between an offensive speaker and a violent target, the fighting-words doctrine favors the target. Rather than insisting that the target of the speech control himself, the doctrine tells the offensive speaker to shut up. This is odd and objectionable. It allows “speech to be [regulated]… when directed at someone who would react violently to a verbal assault, but not [regulated]… when directed at someone with a more pacific bent.”26 It thus gives more leeway to insult a nun than a prizefighter since the nun is presumably less likely to retaliate.27 The fighting-words doctrine is in tension, moreover, with the dominant (and good) rule in criminal law that prevents “mere words standing alone… no matter how insulting, offensive, or abusive,” from constituting the predicate for a provocation excuse.28 In those jurisdictions that abide by the so-called mere-words doctrine (which we will examine further below), legal authority instructs everyone to exercise self-discipline even in the face of inflammatory taunts. The fighting-words doctrine weakens that salutary message.
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