Nigger: The Strange Career Of A Troublesome Word (7 page)

Judges, too, use the N-word. In the late
1960
s, 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 proceeding 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
1950
s: “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 Carolina 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.

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.