Nigger: The Strange Career Of A Troublesome Word (20 page)

Erving Goffman,
Stigma: Notes on the Management of Spoiled Identity
(
1963
),
29
(quoting Ray Birdwhistell).

111.
Susan Schmidt, “Senator Byrd Apologizes for Racial Remarks,”
Washington Post
, March
5
, 2001
.

112.
See John Hartigan:
Racial Situations: Class Predicaments of Whiteness in Detroit
(1999). Related is the increasing use of “wigger,” a reference to so-called white niggers—whites who immerse themselves in and express themselves through cultural styles, gestures, and tastes that are generally identified as “black.”

113.
Ibid.,
116
.

114.
Ibid.

115.
Arthur K. Spears,
African-American Language Use: Ideology and So-Called Obscenity in African-American English: Structure, History and Use
(eds. Salikoko S. Mufwene, Jahn S. Rickford, Guy Bailey, and John Baugh,
1998
),
241
.

116.
Towne v. Eisner
,
245
U.S.
418
,
425
(
1918
).

1.
Stephen J. Whitfield,
A Death in the Delta: The Story of Emmett Till
(1988),
37–38
.

2.
See
Hance v. Zant
,
696
F.
2
d
940
(
11
th Cir.
1983
),
cert. denied
,
463
U.S.
1210
(
1994
);
114
S.Ct.
1392
(
1994
) (denying application for stay of execution). See also Bob Herbert, “Mr. Hance's ‘Perfect Punishment,’ ”
New York Times
, March
27, 1994
; idem, “Jury Room Injustice,”
New York Times
, March
30, 1994
.

3.
See Randall Kennedy,
Race, Crime, and the Law
(1997),
277–84
.

4.
In the middle of William Andrews's trial for murder, for example, a juror handed the bailiff a napkin on which was drawn a man on a gallows above the inscription “Hang the Niggers.”
Whether a juror did the drawing and whether other jurors saw it are questions that remain unanswered, since courts declined even to order a hearing into the matter. Andrews was sentenced to death by firing squad; see
Andrews v. Shulsen
,
485
U.S.
919
(
1988
). See also
Callins v. Collins
,
998
F.
2
d
269
,
277
(
5
th Cir.
1993
) (issue involving a potential juror's reference to the defendant as a nigger).

5.
Jeff Greenberg and Tom Pyszczynki, “The Effect of an Over heard Ethnic Slur on Evaluations of the Target: How to Spread a Social Disease,”
Journal of Experimental Social Psychology
61
(
1985
),
21
.

6.
United States v. H. Rap Brown
,
539
F.
2
d
467, 468
(
5
th Cir.
1976
).

7.
Ibid., 469–70.

8.
See In re
Stanley Z. Goodfarb
,
880
P.
2
d
620
(
1994
).

9.
See In re
Ferrara
,
582
N.W.
2
d
817
(
1998
).

10.
See “Disciplinary Proceeding in Relation to J. Kevin Mulroy,”
New York Law Journal
, August 23, 1999,
8
.

11.
Ibid.

12.
See Kennedy,
Race, Crime, and the Law
,
256
-
62
.

13.
Collins v. State
,
100
Miss.
435, 440
(
1911
). The Mississippi Supreme Court reversed the conviction and ordered a new trial, declaring, “The appellant may be a bad Negro… yet he is entitled to go before the jury of the land untrammeled by voluntary epithets” (ibid.).

The term
white man's nigger
was once common among blacks. Now it is seldom heard. The defense counsel in
Collins
offered a useful elucidation of the phrase:

Ibid., at
435, 436–37
.

14.
John Egerton,
Speak Now Against the Day: The Generation Before the Civil Rights Movement in the South
(1994),
369
.

15.
Taylor v. State
,
50
Texas Criminal Reports
560, 561
(
1907
).

16.
James v. State
,
92
So.
909, 910
(Ala. Ct. App.
1922
).

17.
Thornton v. State
,
451
S.W.
2
d
898
,
902
(Tex. Crim. App.
1970
).

18.
In
re Jerry L. Spivey, District Attorney
,
480
S.E.
2
d
693
(
1997
).

19.
This account of the incident is consistent with the account offered by the Supreme Court of North Carolina. See In re
Spivey
, at
695
. Further details are provided in the transcript of the hearing presided over by the trial judge whose decision to remove District Attorney Spivey was reviewed by the Supreme Court. See In re
Spivey
, transcript volume
1
,
32–34
. Mr. Roger W. Smith, who represented Mr. Spivey, generously gave me a copy of the transcript, which is now available at the Harvard Law School Library. Mr. Asa L. Bell, who represented parties seeking the ouster of Mr. Spivey, also shared with me instructive material.

20.
In re
Spivey
, transcript volume
2
,
159
–
60
.

21.
Ibid.,
161
.

22.
Ibid.,
197
.

23.
315
U.S.
568
,
571
–
72
(
1942
).

24.
In re
Spivey
at
699
.

25.
Ibid.

26.
Wendy B. Reilly, “Fighting the Fighting Words Standard: A Call for Its Destruction,”
Rutgers Law Review 52
(
2000
):
947
,
956
. See also Kent Greenawalt,
Fighting Words: Individuals, Communities, and Liberties of Speech
(
1995
),
47
–
64
.

27.
Cf. Kathleen M. Sullivan, “The First Amendment Wars,”
New Republic
, September
28
,
1992
,
40
, in which the author complains that the fighting-words doctrine gives “more license to insult

Mother Teresa than Sean Penn just because she is not likely to throw a punch.”

28.
United States v. Alexander
,
471
F.
2
d
923, 941
n.
48
(D.C. Cir.
1973
).

29.
In re
Spivey
, at
699
.

30.
See Howard Kurtz, “The Shot Heard Round the Media: Bush's Off-Mike Crack Could Cut Both Ways,”
Washington Post
, September
6
,
2000
; Rob Hiaasen, “The Truth? Adults Use Bad Words,”
Baltimore Sun
, September
6
,
2000
.

31.
See, e.g., John A. Goldsmith,
Colleagues: Richard B. Russell and His Apprentice, Lyndon B.Johnson
(1998).

32.
Cf.
Rankin v. McPherson
,
483
U.S.
378
(
1986
).

33.
In Richard Wright,
Eight Men
(1961).

34.
Fisher v. United States
,
328
U.S.
463
(
1946
). For a useful and detailed description of this case, see David M. Siegel, “Felix Frank furter, Charles Hamilton Houston and the ‘N-word’: A Case Study in the Evolution of Judicial Attitudes towards Race,”
Southern California Interdisciplinary Law Journal
7
(
1998
):
317
.

35.
Quoted in Siegel, “Felix Frankfurter, Charles Hamilton Houston and the N-word,”
360
.

36.
Quoted ibid.,
361
.

37.
See
United States v. Alexander
,
471
F.
2
d
923
(D.C. Cir.
1972
).

38.
A similar strategy would later fail another black man, who would be convicted of attempted murder in
1990
after seriously injuring a coworker who had repeatedly called him “nigger.” See
Ohio v. Hall
,
1992
Ohio App. LEXIS
3915
.

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

40.
214
S.E.
2
d
85
(i
97
i).

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: