Nigger: The Strange Career Of A Troublesome Word

by Randall Kennedy

  In Spivey, the North Carolina Supreme Court wrote that the district attorney's “use of the word nigger did not in any way involve an expression of his viewpoint on any local or national policy.”29 But clearly those who petitioned for his removal did believe that his utterance of the N-word revealed something—and something very disturbing—about his view of blacks. They would not have moved for his ouster had he merely called Jacobs, say, an asshole. That, too, would have been rude and abusive and indicative of a lack of self-discipline and decorum that would have reflected badly on the office of the district attorney. But asshole does not carry the ideological baggage that burdens the term nigger. During the United States presidential campaign of 2000, George W. Bush was overheard describing a reporter for the New York Times as “an asshole.”30 The incident raised a few eyebrows, to be sure, but it did not seem to cost him much, if anything, in public esteem. Had he been overheard describing a reporter (or anyone else) as a “nigger,” however, his candidacy would have been doomed. That is because when whites use the word nigger, they are widely perceived to be showing their true colors as bigots. It is precisely because nigger is thought to indicate the presence of racist beliefs or sentiments that many people take such strong objection to it—as did the people who demanded Spivey's ouster.

  The real reason and the better justification for Spivey's removal were that the statements he made rendered him unfit to fulfill his public responsibility. Such a responsibility entails a commitment to the idea that all people, regardless of race, should be treated equally and with respect before the bar of justice. By calling Ray Jacobs a nigger, Jerry Spivey cast a pall over public confidence in his commitment to accord all people due respect regardless of race.

  In condemning officials or other leaders who use nigger or related terminology, we would do well to remember how complex people can be. Many unreconstructed white bigots have refrained from using the N-word even as they have continued to do everything in their power to hold blacks back.31 At the same time, whites who use the N-word have made important contributions to the advancement of African Americans. Two politicians who come to mind here are Harry S Truman and Lyndon B. Johnson. Both used nigger in private conversation, and yet both surprised observers by taking unprecedented steps to elevate the fortunes of Negro Americans. Jerry Spivey's use of the N-word does not necessarily mean that he harbored racist views or would have failed to apply the law evenhandedly. Perhaps his remarks that night were an aberration. The problem is that his words raised justifiable doubts in the minds of North Carolinians, especially black North Carolinians, about whether he would or could treat all individuals equally, regardless of race. Spivey's misstep might have been reasonably overlooked or forgiven if he had occupied a position of lesser responsibility. But as the district attorney, he wielded massive and discretionary authority (it was up to him, for instance, to decide whether or not to seek capital punishment in a given case) that was effectively outside the scope of judicial review. In light of that power, and of the doubts raised regarding Spivey's ability to wield it effectively and fairly in the aftermath of his N-word incident, the North Carolina judiciary did just the right thing in removing him from office.32

  The law of murder is a second area shadowed by nigger. Murder is the unjustified and intentional or reckless killing of a person. One way that society could signal that it abhors nigger-as-insult would be to deem justifiable the killing of anyone who insultingly deployed the epithet. No sensible person would seriously propose such a policy, of course, but what about excusing to some extent those who respond violently when provoked by the N-word?

  That question has hovered in the background of several noteworthy cases. Consider the following episode, the basis for Richard Wright's short story “The Man Who Killed a Shadow.”33 On March 1, 1944, Julius Fisher, a black janitor at the National Cathedral in Washington, D.C., complained to a white librarian named Catherine Cooper Reardon about statements she had made to his boss regarding his poor performance on the job. She responded, he said, by calling him a “black nigger.” He later testified that no white person had ever before spoken to him in this way. Angered, he slapped Reardon, who screamed. To stop her from screaming, he beat, choked, and stabbed her to death.34

  At Fisher's trial for murder, his counsel, the redoubtable Charles Hamilton Houston—the great teacher of Thurgood Marshall—offered a defense of partial responsibility. While conceding that his client had killed the victim, Houston argued that he should be found guilty of second- as opposed to first-degree murder because he suffered from a mental deficiency. The difference in culpability amounted literally to a difference between life and death, since first-degree murder carried a mandatory death sentence, whereas second-degree murder carried a prison sentence of twenty years to life.

  The trial judge allowed Houston to present evidence intended to show that Fisher suffered from a diminished capacity to control himself and that Reardon had disastrously triggered this weakness by calling him a “black nigger.” The judge refused, however, to instruct the jury that in reaching a decision it should consider evidence of the defendant's alleged mental deficiency. The jury convicted Fisher of first-degree murder. A court of appeals subsequently affirmed the trial judge's decision, as did, in its turn, the Supreme Court of the United States. Three justices dissented, maintaining that the trial judge had erred in refusing to instruct the jury specifically that it could consider Houston's theory of diminished capacity.

  One of the dissenting justices was Felix Frankfurter, who, in an early draft of his dissent, suggested that “Miss Reardon's [reference to the defendant as a] ‘black nigger’ pulled the trigger that made the gun go off.”35 In the published version of the dissent, however, Frankfurter turned his attention from the specificity of the N-word as an incitement and instead focused on the defendant's deficiencies, observing that Fisher's “whole behavior seems that of a man of primitive emotions reacting to the stimulus of insult and proceeding from that point without purpose or design.”36

  Nearly a quarter of a century later, the N-word emerged as an important feature of another interracial killing in Washington. On June 4, 1968—two months after the assassination of Martin Luther King Jr. sparked major riots in the District of Columbia and throughout the country—Benjamin Murdock killed two white marines in a Little Tavern hamburger shop.37 In the middle of a verbal altercation, one of the marines called Murdock a nigger, whereupon he drew a revolver and shot his antagonists. At trial, Murdock's attorney attempted to present a defense similar to the one Houston had mounted on Fisher's behalf. He argued that his client's “rotten social background” had contributed to a diminished capacity to control the rage that exploded when the marine referred to him and his buddies as niggers. The trial judge, however, instructed the jury to disregard the “rotten social background” defense, whereupon the jury convicted Murdock of second-degree murder.38

  In neither Fisher's nor Murdock's case did the defense lawyer argue that the jury ought to be instructed that the word nigger alone could be such a powerful incitement to violence that it should be deemed a provocation sufficient to reduce the defendant's crime from murder to manslaughter. Every jurisdiction in the United States allows a murder defendant to claim, under certain conditions, that his killing of another was sufficiently provoked that his crime should be demoted from murder—the acme of all crimes against persons—to manslaughter, a lesser (albeit still serious) offense. The question that could have been posed in both Fisher and Murdock was whether being called a nigger constituted a circumstance that might allow a defendant to claim that the provocation had been such that he had lost control of himself, killed in the heat of passion, and therefore committed a crime that, though terrible, was nonetheless less morally condemnable than a killing done in cold blood. The likely reason that the two men's lawyers refrained from pressing the question is that in Washington in those years—and the same is true today39—the mere-words doctrine was well-established law.

  That do
ctrine would be squarely confronted in State of

  North Carolina v. Rufus Coley Watson, Jr., a 1975 case in which a black inmate in a corrections facility killed a white inmate over his use of the word nigger.40 At trial, Watson's attorney argued that in view of the verbal provocation the defendant had faced, the jury should at least be given instructions that would permit it to consider whether he had committed manslaughter rather than murder. The trial judge, however, thwarted that strategy by instructing the jury that “Words and gestures alone[,]… regardless of how insulting or inflammatory those words or gestures may be, do not constitute adequate provocation for the taking of human life.”41 The jury convicted Watson of second-degree murder.

  On appeal, the defense counsel sought to oust the mere-words doctrine as the governing law. In asserting his position, he cited as precedent an early-nineteenth-century case in which a white man named Tackett had been charged with murdering a black slave named Daniel.42 There was enmity between the two men because Tackett had made sexual overtures toward Daniel's wife, a free woman of color. Tackett wanted to offer evidence that Daniel had been a turbulent man, impudent and insolent to white people. He argued that this fact in itself should allow a jury to reduce his crime from murder to manslaughter. The judge excluded the proposed testimony, ruling that the defendant's argument could be predicated only upon evidence that the deceased slave had been impudent and insolent to Tackett himself. A jury convicted Tackett and sentenced him to death.

  The North Carolina Supreme Court, ruling on Tackett's appeal, held that the trial judge should have allowed the defendant to present evidence regarding Daniel's general comportment around whites. The trial judge's fundamental mistake, according to Chief Justice Taylor, had consisted in his erroneous belief that “the case was to be determined by the same rules and principles of law as if the deceased had been a white man.”43 The law of provocation in antebellum North Carolina had thus served to cheapen the lives of black slaves who failed to be properly deferential to whites. One hundred fifty-five years later, in Watson, the defense counsel tried to turn the same ruling around to mitigate his (black) client's actions. But the North Carolina Supreme Court would have none of it. Instead, it indicated that its earlier, racially discriminatory conception of provocation was long dead and had been superseded by a clear, clean rule that applied to all: no mere words could provide any degree of excuse warranting a lessening of punishment for the taking of another's life.

  That rule is law throughout much, though by no means all, of the United States. Several states, including California, permit juries to consider the provocation excuse whenever the evidence points to any circumstances, including mere words or gestures, that might cause a reasonable person to lose control over himself or herself. But a majority of the states still embrace the rule that words alone cannot constitute provocation sufficient to diminish murder to manslaughter.

  Is the mere-words doctrine a good rule in light of every-thing we know about the turmoil, distress, and rage that nigger-as-insult can generate within its targets?44 An argument for reform might begin with the proposition that nigger and similar slurs are not mere words. Professor Charles Lawrence has described them as “assaultive” and classified them as “a form of violence by speech” that causes a target to feel as though he or she had been slapped in the face.45 Professor Richard Delgado similarly refers to such speech as “words that wound.”46 The likening of racist speech to violence is significant in this context because violence is universally recognized as creating a predicate for a provocation excuse. If calling someone a nigger is indeed a “form of violence by speech,” then it seems reasonable that at least in some circumstances, the N-word should be deemed a provocation in the eyes of the law.

  An argument against this reform is that black people can and do routinely show discipline, intelligence, and productiveness even in the face of nigger, and that the law should under-gird such conduct by offering no excuse to those who react with violence. People who hold this view may fear what Professor Ann Coughlin has termed “the perils of leniency,”47 believing that a modification of the mere-words doctrine out of concern over the nigger insult will result in an entrenchment of the notion that blacks are less capable of self-control than others and ought, on that account, to be forgiven for their putatively unavoidable impulsiveness.

  Adherents to this view can take inspiration from Ralph Ellison. There is an American Negro tradition, he wrote, “which teaches one to deflect racial provocation and to master and contain pain. It is a tradition which abhors as obscene any trading on one's own anguish for gain or sympathy; which springs not from a desire to deny the harshness of existence but from a will to deal with it as men at their best have always done.”48

  The issue is agonizingly close, with strong arguments on both sides. One's conclusion turns largely on one's belief regarding the primary purpose of criminal law. If the primary purpose is utilitarian crime control, the mere-words doctrine should be retained. If the primary purpose of the criminal law is retribution—dishing out just deserts—reform of the mere-word doctrine is preferable. An ambivalent retributivist, I choose the latter alternative. I am persuaded that there should be no bright-line limits to the array of provocations that a jury is permitted to consider for the purposes of mitigation. It should be up to a jury to determine whether, in fact, a defendant lost control of himself or herself in the face of nigger or any other alleged provocation and whether society should soften its punishment in the event of such a loss of control.49

  The third category of nigger litigation is composed of cases in which targets of the slur have invoked tort law or antidiscrimination law to sue their tormentors.

  Many jurisdictions offer individuals the possibility of obtaining relief for what tort law terms “the intentional infliction of emotional distress.”50 This legal weapon emerged from the notion that under certain circumstances, even in the absence of offensive touching or threats of force, some conduct may be so outrageous that a formal means of redress should be available to offended parties. Successful applications of this idea in its early years involved malevolent practical jokes, as in the case of a plaintiff who was told that her husband had been severely injured, while the defendant knew that he was in fact safe.51 Other scenarios that have given rise to successful lawsuits include instances of a defendant's spreading false rumors that a plaintiff's son had hanged himself,52 a defendant's bringing a mob to a plaintiff's door at night and voicing a threat to lynch him unless he left town,53 and a defendant's telephoning the plaintiff around the clock seeking repayment of a debt.54The jurisprudence of emotional distress also contains a body of precedent related to nigger. Consider the following cases: Wiggs v. Courshon55 and Nims v. Harrison.56

  Wiggs involved black customers at a motel restaurant in Miami, Florida, who became embroiled in an argument with a waitress over a food order. Among these customers were several adults and one seven-year-old boy. At one point in the dispute, the waitress exclaimed to one of the adults, “You can't talk to me like that, you black son of a bitch. I will kill you.”57 Later, outside of the immediate presence of the plaintiffs but within earshot of them, the waitress shouted, “They are nothing but a bunch of niggers.”58 The plaintiffs immediately checked out of the motel. The next day, when they returned to tell a manager what had happened, they were advised, “You shouldn't feel so bad.… [That waitress] is prejudiced against Catholics, Jews, and all other kinds of minorities.”59 Upset, the plaintiffs cut short their vacation, went home, and eventually sued, persevering through trial to win a jury verdict.

  The plaintiff in Harrison was a black high school teacher, Rosalind Nims, who sued several graduating students because of the nature of comments about and threats toward her that they published in a newsletter distributed at the school. The newsletter described Nims as the “most fucked-up teacher,” assailed her as “a stupid bitch… who has black skin and is a fucking gigaboo [sic],” and contained the declarations “I will kill you you fuckin
g whore” and “I will rape you and all of your children and cousins you stupid motherfucking bitch.” For good measure, the writer added, “Die nigger.”60

  Nims charged the students responsible with intentional infliction of emotional distress and sued for damages. A trial court judge dismissed the complaint, ruling that even if the facts alleged by the plaintiff were true, they failed as a matter of law to reach the level of outrageousness required for a recovery of damages. An appellate court reversed, concluding that “justice, reason and common sense compel a remedy for the revilement inflicted upon the teacher… provided that the facts alleged are proven.” The Florida Court of Appeal found that the conduct alleged “is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency; it is utterly intolerable in a civilized community.”61

  While these cases demonstrate that it is possible to recover in tort for racial insults, imposing difficulties lie in wait for those who attempt to do so. First, seeking redress through litigation is typically expensive, nerve-racking, fatiguing, and time-consuming. Second, the formal requirements of the tort of intentional infliction of emotional distress are daunting. Plaintiffs must show that the offending conduct was extreme and outrageous; that it was intentional or reckless; that it caused emotional distress; and that the emotional distress caused was severe. According to the American Law Institute:

  It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim, “Outrageous!”62