Ethnic Slurs in the Land of the Free[dom of Speech] “Congress shall make no law…abridging the freedom of speech…” -­‐U.S. CONST. pmbl I. Pottymouth: Profanity, Regulation, and the First Amendment In 1973, social critic and comedian, George Carlin recorded a 12-­‐minute monologue, titled “Filthy Words,” for his stand-­‐up comedy album: Occupation: Foole. In his musings, Carlin explored seven words, “curse words and swear words, the cuss words that you can’t say—that you’re not supposed to say.”1 The seven words were “shit, piss, fuck, cunt, cocksucker, motherfucker, and tits;”2 Carlin also included a nod to the word “bitch.” At the time, many considered the eight words profane and exceptionally offensive, and many states actively upheld statutes criminalizing the words’ use.3 On a Tuesday afternoon in 1973, WBAI-­‐FM, a New York radio station owned by Pacifica Foundation, broadcast “Filthy Words.” Several weeks after, the Federal Communications Commission (FCC) received a complaint letter from John Douglas, a member of Morality in the Media,4 who had turned on his car radio during the broadcast. 1
FCC v. Pacifica: Appendix to Opinion of the Court, http://www.mit.edu/activities/safe/indecency/fcc-­‐2a.html. Id. 3
Between 1961 and 1966, comedian Lenny Bruce was arrested several times for using profanities and obscenities in his routines—particularly “ass, balls, cocksucker, cunt, fuck, motherfucker, piss, shit, tits.” By 1966 he had been blacklisted at nightclubs across for the United States, as owners feared obscenity prosecution. Bruce’s use of obscenities culminated in a 1964 trial and obscenity conviction in New York. RONALD COLLINS & DAVID SKOVER, THE TRIALS OF LENNY BRUCE: THE RISE AND FALL OF AN AMERICAN ICON (2002). After a 1972 performance at Milwaukee’s Summerfest concert series, Carlin was arrested for performing "Seven Words You Can Never Say on Television", the basis for ‘Filthy Words,’ on his 1972 stand-­‐up comedy album, Class Clown. GEORGE CARLIN, LAST WORDS: A MEMOIR (2009). 4
According to its website, Morality in the Media is: “The leading national organization opposing pornography and indecency through public education and the application of the law.” Among its achievements, it lists: “Pressuring the FCC to resume enforcement of the broadcast indecency law.” Morality in Media, http://66.210.33.157/mim/full_article.php?article_no=411 (last visited Oct. 13, 2011) 2
1 Though WBAI-­‐FM and Pacifica explained that the broadcast was part of a “program…focusing on contemporary society's attitudes towards language…selected because it was…an incisive satirical view of the subject under discussion,”5 the broadcast of Carlin’s monologue evolved into the landmark Federal Communications Commission v. Pacifica Foundation decision.6 The case defined the FCC’s power to regulate broadcast material regarding indecency. In 2009, with Fox Television Stations, Inc. v. FCC,7 the Supreme Court upheld the FCC’s ability to regulate broadcast material as related to “fleeting expletives,” holding that such regulation is nether arbitrary nor capricious under the Administrative Procedure Act.8 In 2010, on remand from the Supreme Court, the Second Circuit found that FCC’s regulation power had a chilling effect on speech protected by the First Amendment, a direct challenge to Pacifica.9 In its decision, the Second Circuit found that the Supreme Court’s notion of “patently offensive”10 language or material was so vague that it “[promoted] wide self-­‐censorship of valuable material which should be completely protected under the First Amendment.”11 5
Ann-­‐Ellen Marcus, Broadcasting Seven Dirty Words: FCC v. Pacifica Foundation, 20 B.C.L. Rev. 975 (1979). FCC v. Pacifica Found., 438 U.S. 726 (U.S. 1978). 7
FCC v. Fox TV Stations, Inc., 556 U.S. 502 (U.S. 2009). 8
5 U.S.C. 500 et seq. 9
Fox TV, Inc. v. FCC, 613 F.3d 317 (2d Cir. 2010). On June 27, 2011, the Supreme Court granted another writ of certiorari to review the case a second time. 10
Fox, 613 F.3d at 335. The term "patently offensive" first appeared in Roth v. United States, 354 U.S. 476 (U.S. 1957), and was further defined in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney Gen. of Mass., 383 U.S. 413 (U.S. 1966). The term describes acts or materials that are “affronts contemporary community standards.” Id. at 418. Together, Roth and Memoirs outline what speech is and what is not entitled to First Amendment protection. 11
Fox, 613 F.3d at 335.The Second Circuit notes that the “to regulate or not to regulate” issue is problematic: “[Regarding “patently offensive”], a law or regulation is impermissibly vague if it does not give the person of ordinary intelligence a reasonable opportunity to know what is prohibited. The First Amendment places a special burden on the government to ensure that restrictions on speech are not impermissibly vague.” Id. However, "'perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Id at 328. 6
2 In “Filthy Words,” Carlin noted that the “list [of dirty words] is open to amendment, and in fact, has been changed.”12 By the passage of time, the second and seventh words on Carlin’s list have become common during primetime television, and ubiquitous on pay-­‐for cable television shows; “bitch” has been used a as pejorative, and as a term of endearment or empowerment.13 14 The FCC does not keep a specific list of profanities, but has defined prohibited language as “language so grossly offensive to members of the public [as to amount] to a nuisance,” and restricts the use of such language between the hours of 6am and 10pm, known as the “safe harbor period.”15 One compelling arguments for the FCC’s regulation of profanities is that the affirmative right of free speech also necessitates its inverse. Though public discourse may permit the use of profanities, it must also make equal space for dialogue without those profanities—lest the order of social interaction favor the views and personal choices of one particular group and ideology over another. The fear is that without regulation, broadcasters’ self-­‐censorship or advertisers’ pressures may not be enough to keep the safe harbor period “safe.” However, due to changing social attitudes, it is unclear how safe this period is. As highlighted by the Parents Television Council (PTC) in its 2010 report, Habitat for Profanity, instances of or references to 12
Supra note 1. Habitat for Habitat for Profanity, a report by the conservative advocacy group, Parents Television Council (PTC), reported that in 2010, on public television broadcasts during primetime and “children’s hours,” bitch was used 111 times, piss: 44; tits and like words: 26. These words were also among other profanities such as: “ass, crap, damn, douche, suck, screw, genitalia references, and bleeped expletives totaling 1,438 instances of vulgar expression. Available at http://www.parentstv.org/PTC/publications/reports/2010ProfanityStudy/study.pdf. 14
“Subscription services are immune from anti-­‐obscenity rules, cable networks don’t have to worry about the FCC, because, like satellite radio, they are a paid service, yet they hold to certain standards for fear of alienating sponsors.” Gary Polone, Why TV Shouldn’t Be So Afraid of the Word Fuck, available at http://nymag.com/daily/entertainment/2011/09/gavin_polone_why_tv_should_all.html. 15
FCC Guide: Obscenity, Indecency and Profanity, http://www.fcc.gov/guides/obscenity-­‐indecency-­‐and-­‐profanity (last visited Oct. 9, 2011); FCC: Regulation of Obscenity, Indecency and Profanity, http://transition.fcc.gov/eb/oip/Welcome.html (last visited Dec. 2, 2011). 13
3 profanity or vulgarity have increased by 68% since 2005. Proponents of governmental regulation believe that absent some intrinsic self-­‐regulation, the government plays an essential role in striking the balance in the content and consumption of public goods16-­‐-­‐between active expression and inverse, or silent, expression. In the decades since Pacifica, technological advances and changes in social attitudes have questioned the safe harbor period’s relevancy. The internet and mobile technologies have permitted free, easy, and open access to a variety of opinions, ideologies, and so, words used to express them. In September 2011, New York Magazine published Why TV Shouldn’t Be So Afraid of the Word Fuck.17 Writer-­‐producer Gavin Polone noted that television broadcasting during safe harbor hours—including popular prime-­‐time hours18-­‐-­‐is rife with vulgarity, sexual references, and derogatory social innuendos. He also noted that internet and wireless connectivity has time-­‐shifted television viewing, allowing anybody “to watch what[ever] they want, when they want.” Because of these two realities, he concludes that the FCC’s continuing regulation of obscenities and profanities, heavily reliant on standards set out in the 1970’s, is an inapplicably archaic, if not an entirely futile, exercise. Despite the many dialogues regarding what is or is not profane, there has been little discussion of where ethnic slurs, formally called “ethnophaulisms,” lie on the spectrum of regulable speech. The FCC’s description of profanities speaks in generalities—words and signifiers that are offensive to most across social, and perhaps cultural divides—but both the 16
A public good is a good that is non-­‐rival and non-­‐excludable. In economics, primary examples are the public broadcasting mediums of television and radio. Non-­‐rival means that individual consumption does not erode public availability of the good; non-­‐excludable means that access to the good cannot be (or is not easily) foreclosed. 17
Polone, supra note 14. 18
Generally 7pm to 11pm in any given time zone. 4 FCC and the Supreme Court have yet to directly address the issue of whether ethnic slurs are regulable speech under Pacifica’s reasoning. Recently, several state and federal courts have grappled with the issue of ethnic slurs in hate speech, all upholding that the public use of ethnic slurs is punishable only if accompanied by “true threats.” Virginia v. Black, 538 U.S. 343 (U.S. 2003) (finding that "true threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals). In Cruff v. H.K. (In re H.K.), 2010 ND 27 (N.D. 2010), the North Dakota Supreme Court ruled that under the state’s disorderly conduct statute, a juvenile’s use of racial slurs increased the potential that her threatening statements and actions would incite a breach of the peace or a violent reaction under the meaning of Chaplinsky v. N.H., 315 U.S. 568 (U.S. 1942.19 In United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. Cal. 2011), the Ninth Circuit Court of Appeals overturned petitioner Bagdasarian’s conviction under 18 U.S.C.S. § 879(a)(3) for threatening to kill and inflict bodily harm upon a major candidate for the office of president of the United States. Bagdasarian had posted the comments “Re: Obama fk the niggar, he will have a 50 cal in the head soon" and "shoot the nig” on an online message board regarding then-­‐candidate Barack Obama. For a 2-­‐1 majority, Circuit Judge Stephen Reinhardt wrote: “§879, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind.” Referencing Black, Reinhardt noted that under the First Amendment, “the State can punish threatening expression only if the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a 19
Fighting words are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky, 315 U.S. at 572. 5 particular individual or group of individuals.” In State v. Read, 163 Wn. App. 853 (Wash. Ct. App. 2011), a Washington Court of Appeals upheld Read’s conviction for malicious harassment. Under the applicable statute, “words alone cannot constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat, and it is apparent that the person can carry out the threat.” However, the court drew a scarcely perceptible line between what constitutes criminal action and the substance of hate speech itself: “the intent of the malicious harassment statute is not to punish bigoted speech or thought, but rather the act of victim selection [in addition to bigoted speech and thought].” Ethnic slurs may be nuisances under the FCC’s description, but the words are specifically, not generally, offensive. Common and collective experiences recognize that such words are frequently the subject of censorship in public television and radio broadcasts; however, ethnic slurs differ in content from ordinary profanities. Words like Carlin’s filthy eight and the “profanities” highlighted by the PTC largely pertain to sexual acts, perversions, profanities against religion, or the functions and parts of the human body. Differently, ethnic slurs are or have been, “insinuations or allegations about members of a [race, nationality, or ethnicity] that refer to them in a derogatory… or insulting manner.”20 The most obvious danger of such words is the promotion of what are [but, as discussed later, not always] negative ideas and images, both historical and contemporary. Ethnic slurs are also painfully indicative of the continued presence of stereotypes and prejudices in social consciousness. II. Talking Down: The United States and Ethnic Slurs 20
Wikipedia’s List of Ethnic Slurs lists over 200 such slurs in the English language, http://en.wikipedia.org/wiki/List_of_ethnic_slurs#Immigration_slurs (last visited Oct. 13, 2011). 6 Ethnic slurs are part of a larger area of offensive speech known as “hate speech.” While there is no one definition of hate speech, the international advocacy and research organization, Human Rights Watch, defines it as “any form of expression regarded as offensive to racial, ethnic, and religious groups and other discrete minorities.”21 Taking ethnic slurs alone, hate speech is particularly devastating because it singles out and derogates an immutable, often existential characteristic.22 Ethnic slurs in hate speech also stir both historical and present understandings of social iniquities and racial discrimination. Larry Alexander, in Banning Hate: Speech and the Sticks and Stones Defense notes that hate speech is “performative. Its illocutionary force is that of acting disrespectfully; it not only expresses the speaker's disrespect of his target but counts as treating the target disrespectfully.”23 Hate speech also affects the target’s consciousness, even as the First Amendment permits a speaker to use ethnic slurs, it consequently “silences those who [are] the targets [of ethnic slurs], depriving them of their freedom of speech." The target of an ethnic slur may not support its use, readily identify with the slur, or share the opinion of the slur speaker in regard to target’s ethnicity. But, as a matter of understanding, both the slur speaker and the target are acutely aware of the immutable characteristic under derision, and the discriminatory and hateful history of the slur. The discursive allowance of ethnic slurs via the First Amendment’s free speech vehicle is a particularly American issue, not simply because of the Constitution. Unlike its international 21
Jeannine Bell, Restraining the Heartless: Racist Speech and Minority Rights. 84 IND. L.J. 963 (2009). An “immutable characteristic” is some physical attribute perceived as being constant, fixed, and/or intrinsic. 23
Larry Alexander, Banning Hate: Speech and the Sticks and Stones Defense, 13 CONST. COMMENTARY 71 (1996). 22
7 counterparts of the developed world, particularly of Europe, the United States is singular in its refusal to prohibit hate speech.24 In the international community, there is some agreement that hate speech must be prohibited by law and that that the “principles of freedom of expression are either overridden or irrelevant when what is being expressed is racial, ethnic, or religious hatred.”25 In some European countries, especially those affected by the socio-­‐politics of Hitler’s Germany, the use of hate speech is subject to civil or criminal statutes, and hate speech targets may seek redress under these statutes. III. Looking Back on Pacifica: Morality, Government, and Speech Citing Chaplinsky, Justice John Paul Stevens, writing for the Court in Pacifica, states that “[profanities] offend for the same reasons that obscenity offends. Their place in the hierarchy of First Amendment values…[is] no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky 315 U.S. at 572. It is clear that ethnic slurs are profanities, but Stevens’ logic here, regarding both profanities and ethnic slurs, is problematic for two reasons. First, the use of ethnic slurs in hate speech may be—unfortunately, but in fact—the essential part of an idea. Unlike ordinary profanities, ethnic slurs cannot be substituted for 24
The United States has signed but not ratified or recognized the competence of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and Article 20 of the 1966 International Covenant on Civil and Political Rights (ICCPR). The United States, on constitutional grounds, refused to agree to the Protocol on the Criminalization of Acts of a Racist or Xenophobic Nature. Frederick Schauer, The Exceptional First Amendment, (Harvard Univ. KSG Faculty Research Working Paper Series, Paper No. RWP05-­‐21., 2005), available at http://web.hks.harvard.edu/publications/workingpapers/citation.aspx?PubId=2554. 25
Id. 8 other word choices—to do so would simply be lateral moves across a scurrilous field. Taking Stevens’ word “value” to mean not “worth,” but “use,” ethnic slurs serve a particular and direct purpose. They denote not only a cognizance of what the slur means, but the desire to articulate that cognizance and place it acutely upon a listener who also understands the meaning of the slur. Though the interpersonal exchange here is, at best, discomfiting, and at worst, contemptible, regulation of such ethnic slurs is problematic under both the First Amendment and the Supreme Court’s past interpretations of its meaning. Regulation of ethnic slurs would negate the Amendment’s constitutional allowances and expand the protective capacity of government into the space between popular and unpopular viewpoints and sentiments. The danger in doing so is the danger of the slippery slope: that once government breaches this regulative barrier, gone would be the protections of strict scrutiny in content and viewpoint regulation, and the government could unlimitedly, and without discretion or deference, police in these areas. Without the Amendment’s protections, personal opinion, ideology, and identity as related their expression necessarily become subject to governmental control.26 Second, Stevens’ address of morality in legal contexts indicates his attention to the framework of natural law and an acknowledgement of the Aristotelian “good.”27 The presumption of morality born of natural law conceives of Congress’ legislative power and the 26
An argument can be made that other countries’ regulation of ethnic slurs in hate speech has done no perceptible damage to the exercise of thought and speech. However, the Supreme Court’s tendency to approach the First Amendment from a textual perspective, and the resultant tenacity with which American society holds the Amendment’s guarantees, resist narrow application of the Amendment. 27
See, Aristotle’s NICHOMACHEAN ETHICS (Oxford University Press 1998) whose moralistic importance and influence are thanks to the expansions of Thomas Aquinas in SUMMA THEOLOGICA (Christian Classics 1981). 9 Judiciary’s evaluative power as guided by a collective, intrinsic moral compass.28 What is “good” is collectively good; what is “bad” is collectively bad. However, such assessment is limited; notions of ‘good’ and ‘bad’ determine morality when bad intentions create bad acts that result in bad consequences. To illustrate the point: There is a difference in actionable bad when an individual thinks “Raghead” and speaks the word, and when that same individual thinks “Raghead” and punches the target of the ethnic slur. Vocalizing the thought in speaking the slur along with the punch would transform the punch, a crime in itself, into a hate crime. Vocalization of an ethnic slur is an elevator of an institutionally bad act. But by itself, as a marker of thought and under First Amendment precedents, ethnic slurs are not judiciable acts by themselves, unless the words are Chaplinsky’s “fighting words,” and in such a context, the words can also become “true threats” under Black.29 Macroscopically speaking, Stevens’ “social interest” in morality has very to do with a speaker or collective speakers unless the thoughts manifest in bad or immoral actions that have directly harmful or broadly harmful effects. Action beyond verbal expression is the threshold, not the words themselves. It is worth noting that targets of ethnic slurs in hate speech usually object to the use and ideological principle of the slur. This is not a mere statement of obviousness; it is important to mention both for existential and democratic reasons. Speech is one of only the ways in which to express the existence of an idea or opinion. Courts have been hesitant to deem opinion and ideologies appropriate matter for governmental regulation; however disagreeable the 28
Contrast this to legal positivism, which is beholden to the notion that the making and interpretation of law is subject to the individual perspectives of the maker or interpreter. 29
Supra note 19. 10 substance of a viewpoint, the danger in regulation is the creation of dystopian social ordering.30 Opposition to an ethnic slur—evidences the existence of a contrary viewpoint—the target of an ethnic slur does not agree with the speaker, and by doing so, existentially moves away from the speaker’s attempt of ideological [and perhaps, actual] subjugation. A belief, ideology, or perspective antithetical to a known position, whether of a dominant or other group, often forms the basis of democratic action and advocacy for change. To regulate the dynamism brought about by the opposition of idea, funneled down into speech, would be a block to the unique cycle inherent in a democratic and free society, and the abrogation of the “blessings of liberty” as enshrined in the Constitution.31 Courts, in their interpretive role, have thus engaged in top-­‐down ideological laissez-­‐faire that mirrors the interplay of oppositional opinions, a keystone of social democracy. The limitations and precariousness of Stevens’ nod to morality are readily evident in the fact that, though most of Carlin’s filthy words are still vulgar, they are not presently, if they were ever, immoral. Immorality falls into two categories32: things that are absolutely immoral, such as homicide or rape, and things that are relatively immoral, such as lying, fighting or vulgarity. The latter category is a relativistic inquiry, subject to context or the vacillations of social attitudes and perspectives. Though ethnic slurs are offensive and objectionable, it does 30
See, LOIS LOWRY, THE GIVER (1993); ALDOUS HUXLEY, BRAVE NEW WORLD (1932); GEORGE ORWELL, NINETEEN EIGHTY-­‐FOUR (1949). These novels are considered hallmark representations of dystopian society, a controlled state that represses and regulates the actions and thoughts of its citizens. Though works of fiction, critics and culturalists consider the three novels, along with Orwell’s Animal Farm and its treatment of freedom of the press, as political and social warnings. 31
U.S. CONST. pmbl. 32
Relativistic vicissitudes, for the purposes of this review, are based largely the writing of philosopher Immanuel Kant in his Groundwork for the Metaphysics of Morals. The work examines the notion of morality based on the a priori, and establishes Kant’s notion of a “Categorical Imperative” that determines the morality or immorality of actions. 11 not necessarily follow that the speech, and so the speaker, is immoral, at least not absolutely. The limitation in determining morality from speech is that such judgment is more appropriate for actions rather than thoughts, and expressions of those thoughts. A speaker can say “Fuck you” and “This is the shit”, or “What a Kike” and “You Chink,” and though the ethnic slurs are more repugnant and outrageous than ordinary profanity, to consider the speaker him or herself to be congenitally bad, and so immoral, is a tenuous designation. Frederick Schauer, in The Exceptional First Amendment, notes that the American position on hate speech reflects “a deeper division between the United States and the rest of the world on freedom of expression issues. [The divisive point is] that principles of freedom of speech do not permit government to distinguish [between] protected from unprotected speech on the basis of the point of view espoused.”33 This result of this division is a counterargument to the idea that the proliferation of a successful democratic society necessitates government interference in public discourse. The First Amendment, and the Supreme Court as increasingly strict interpreters, allow for the ideological laissez-­‐faire that responds to the interplay of ideology and oppositional ideology in a free society. The criticism is that laissez-­‐faire, here, is passive aggressive and defeating, that waiting for words to rise to the level actual harm is judicially uneconomical and protracts the process of ridding society of the words and ideologies that prevent social inclusiveness and national unities. IV. Sea Change: Ethnic Slurs and Reappropriation 33
Alexander, supra note 22. 12 The Supreme Court’s refusal to narrowly interpret the First Amendment has contributed to a social and lexicological phenomenon, one that has created difficulty both for ethnic groups and Pacifica. The difficulty is the matter of intent in the use of an ethnic slur. Wikipedia maintains a list of over 200 ethnic slurs used in the English language.34 Though all of the words mark painful historical significances and are reminders of discrimination that has existed or currently exists, some of the words have altered meanings because of a process known as semantic change, or reappropriation. In reappropriation, an ethnic slur becomes a mark of fellowship or brotherhood and; the speaker’s intent is to create a positive feeling or response as opposed to the historically negative one. Though ethnic slurs like “Beaner, Cholo/a, Guido (and the stylized Guidette), Dago, Mic, Nigga, Paki,” are loaded words that [still] represent the subjugated or marginalized status of a minority group in the United States relative to Whites,35 because of reappropriation, these words are examples of why, under Pacifica, regulation of objectionable speech is difficult. The core of the difficulty is a manner of intent lies in the determination of the speaker’s intent behind usage of the ethnic slur. The best example of this is “Nigga,” an eye-­‐dialect of the pejorative “Nigger.” The word, along with the advent of the hip-­‐hop its generation,36 contributed to the present controversy of ethnic slur reappropriation. Much of hip-­‐hop’s lyricism, especially during the 1990’s period of 34
Wikipedia, supra note 19. “White” means racially White—that is, by a present definition, persons having origins in Europe. “Ethnic” Whites— such as the Irish, Southern and Eastern Europeans, and Jews— who, at some point in US history, were considered non-­‐White and were the subject of ethnic slurs themselves, have also used such slurs. The use of ethnic slurs in this manner, combined with objective racial criterion, has to do with active attempts at association with the dominant White social group, known as “passing,” or distance from the fact of subjugation. See, HENRY LOUIS GATES, JR., The Passing of Anatole Broyard in THIRTEEN WAYS OF LOOKING AT A BLACK MAN (1997); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law 101 HARV. L. REVIEW. 1331, 1356-­‐1386 (1988). Marking another ethnicity as more subjugated than one’s own is a modality of social stratification. See, Tim Wise, On White Privilege, http://www.youtube.com/watch?v=J3Xe1kX7Wsc. 36
BAKARI KITWANA, THE HIP HOP GENERATION: YOUNG BLACKS AND THE CRISIS IN AFRICAN AMERICAN CULTURE (Basic Civitas Books 2003). 35
13 gangsta rap, pushed the genre’s presence into mainstream consciousness. Gangsta rap depicted the hardships of youth gang life, or “gangsta life” in urban areas; its explosion directly corresponded to the United States’ crack epidemic, which devastated Black communities in urban areas. Gangsta rappers peppered their songs with “nigga,” naming others positively or negatively, and in self-­‐reference.37 Because of the gangsta rap’s popularity, other urban minority groups, such as Latinos and East Asians, who also had histories of discrimination and identified with the hardships depicted in gangsta rap, began to use the slur as marker of fellowship or commonality. Though used with both positive and negative connotations in hip-­‐
hop, “nigga” among Blacks is divisive along socio-­‐economic, political, and ideological lines, and there is a variation of opinion on the appropriateness of the word in public or private dialogue. The word has also become a point of contention between Blacks, other minority groups, like Latinos and East Asians, and Whites. Reappropriation as an argument for the use of ethnic slurs is divisive. Though this piece does not analyze the various arguments surrounding reappropriation, noting the divisiveness is important because it defines opinion on the relevant history and the present meaning of an ethnic slur within an ethnic group. Ethnic groups of all backgrounds find reappropriation problematic. Communities of color, or in-­‐groups, query whether an ethnic slur can ever be reclaimed because the slur’s loaded history always remains. These communities also question the ultimate point of reclaiming the slur when other modalities and demonstrations of power and ability are readily available, and do not rely on the verbal flotsam of historical shame and 37
TUPAC SHAKUR, N.I.G.G.A. (Interscope 2004); ICE CUBE, IT WAS A GOOD DAY (Priority/EMI Records 1992); N.W.A. (NIGGAZ WIT’ ATTITUDE), FUCK THE POLICE (Ruthless/ Priority/EMI Records 1988); WU-­‐TANG CLAN, PROTECT YA NECK (Loud 1993); A TRIBE CALLED QUEST, SUCKA NIGGA (Jive/BMG Records 1993). 14 discrimination. Historically dominant groups, or out-­‐groups, argue that even if they might never consider using ethnic slurs, reappropriation is a hypocrisy that discriminates in the usage and applicability of a slur. Reappropriation maintains social distances because the slur unfairly challenges members of the out-­‐group to accept blame for the ideologies, and actions of a past society whose views may not presently comport with their own.38 One conclusion is that reappropriation is the result of the Supreme Court’s yielding approach to the First Amendment. This yielding approach gives latitude for the free expression and interpretation of words, and so, the opportunity for semantic change gives rise to reappropriation. However positively or negatively viewed reappropriation may be, because of ideological and social evolution, policing intent behind an ethnic slur’s use is a problematic area for governmental regulation. Regulation would necessitate an intrusion into identification and self-­‐identification, the “I am” and the “You are,” that, however disagreeable, is fully permitted by the First Amendment. In this way, the First Amendment and judicial precedents both create and foster difficulty in attempts to curb the use of ethnic slurs.39 Such intrusion, if judicially examined, would evidence an unequal application of regulatory provisions prohibited by the Equal Protection Clause of the Fourteenth Amendment. The intent problem in the use of ethnic slurs is the substance of the “vagueness” that, in Fox, Second Circuit Judge Rosemary Pooler highlights as incompatible with the demands of the 38
Reappropriation rules on the use of ethnic slurs appear to be: 1.Member of the in-­‐group against whom the term originally applied are free to use the slur when speaking among themselves. 2. Individuals part of a group that has also experienced historical discrimination sometimes have the ‘honorary privilege’ of using the slur, but must take pains not use the slur as would a member of the ‘out-­‐group.’ 3. Those members of the out-­‐group may only use the slur only if their honorary in-­‐group status is unquestionable to members of the in-­‐group. See, TV Tropes, N-­‐Word Privileges, http://tvtropes.org/pmwiki/pmwiki.php/Main/NWordPrivileges. 39
Consider also that ideas of reappropriation apply to slurs based on gender and sexual orientation such as “bitch” or “fag.” 15 First Amendment. Fox elucidative because it applies the vagueness doctrine to the complexity of perspective regarding the use and meaning of a word potentially subject to governmental regulation: “The vagueness doctrine serves important objectives in the First Amendment context. The doctrine is based on the principle of fair notice… particularly important with respect to content-­‐based speech restrictions because of their chilling effect on free speech… The vagueness doctrine is based on the need to eliminate the impermissible risk of discriminatory enforcement …and avoid the risk that indiscernible standards will be enforced in a discriminatory manner. If government officials are permitted to make decisions on an "ad hoc" basis, there is a risk that those decisions will reflect the officials' subjective biases.”40 V. Conclusion The use and proliferation of profanity in society can be a difficult concept to acknowledge and accept. On one end, children grow up with the notion that profanity is socially taboo, that there are better words with which to express oneself, and for some, the consequence of using profanity is some disciplinarily punitive measure. On the other end, growing up, profanity becomes a novel and useful mode of socialization and communication. It can denote the exiting or leaving behind of childhood and its restrictions, a way in which to fit into a social group, and an appropriate linguistic marker of heightened emotion and emphasis on a social condition—profanity becomes a necessary way of expostulation. In the public sphere, the First Amendment categorically protects the use of profanity in everyday parlance, regulation only exists subject to federal media guidelines, advertisers’ self-­‐
40
Fox, 613 F.3d at 328. 16 monitoring, and implied codes of contextual norms in institutions and workplaces. Ethnic slurs, however, are profanities of another order. Because of the particular way in which they denigrate an individual or group of people, they are words more hateful and hurtful than ordinary profanity. Whether ordinary profanities or ethnic slurs, acceptable or objectionable, profanities are powerful tools in communication. Arguably, the latitudes permitted under the First Amendment have allowed language to reflect changing societal attitudes—expanding the meaning and implication of profanities and ethnic slurs beyond their original contexts and significances. Only the passage of time will ultimately determine whether present federal regulations of profanities remain viable, if “filthy words,” like ethnic slurs remain filthy, and determine what other words will take their places. What is certain is that the uniqueness of the First Amendment will protect the use of such words, and the propriety of profanities will remain a matter for both social and judicial courts of opinion. 17