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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. In the early morning hours of June 30, 1995, Jerry L. Spivey, the elected district attorney of the 5th 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. 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?’ “ 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.” 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.” 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 U.S. 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.” Applying Chaplinsky, the North Carolina court ruled that Spivey’s outburst had constituted a “classic” case of unprotected fighting words. 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.” 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.” It thus gives more leeway to insult a nun than a prizefighter, since the nun is presumably less likely to retaliate. 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. In those jurisdictions that abide by the so-called mere-words doctrine, 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.” 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 assh–e. 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 “assh�-e” does not carry the ideological baggage that burdens the term “nigger.” During the presidential campaign of 2000, George W. Bush was overheard describing a reporter for The New York Times as “an assh–e.” 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. 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. Randall Kennedy teaches at Harvard Law School. The preceding is excerpted from “Nigger: The Strange Career of a Troublesome Word,” published by Pantheon Books, and reprinted with permission.

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