The “N Word” on Trial: How Courts Deal with the Troubling Term
A Law School Controversy
A Rutgers law student recently caused controversy by saying the “N” word while quoting from a 1993 New Jersey Supreme Court case during office hours with her professor. Other law students were offended and circulated a petition objecting to the use of the term, even when directly quoting a court decision. Rutgers’ Dean urged students and professors to refrain from using the “hateful” term in any context. The Washington Post condemned the student for using a term that is “larded with so much hate and caused so much pain and harm.”
It’s timely, therefore, to review how courts deal with this troubling term. Reliable data is readily available through the Westlaw legal database.
Courts Continue to Use the Term
Many courts continue to use the term without abbreviation, typically when quoting other decisions or the parties’ pleadings or testimony. These courts reflect the traditional view — which prevailed until 1995 — that while it is offensive to target somebody with the term, merely repeating the term as used by others is acceptable. Westlaw searches confirm that over the past five years — from May 2016 to May 2021 — 1,099 written decisions issued by state and federal courts contain the term “nigger.” This represents accepted usage in virtually every state and federal court in the country, including the United States Supreme Court.
During this same period, however, courts’ use of the euphemism “the N word” significantly increased. Over the last five years, 556 written decisions exclusively used “the N word” and another 194 written decisions used both “the N word” and “nigger”, typically reflecting courts’ preference for the abbreviated term in their own writing but willingness to use the full term when quoting others. Notably, the past year was a tipping point. For the first time, more decisions contained at least one abbreviated use of the term (205 decisions) than contain only the full term (150 decisions). It is clear therefore that an increasing number of jurists are sensitive to the fact that non-malicious repetition of the word may be hurtful or impolite.
It All Started with the O.J. Simpson Trial
The notion that non-malicious repetition of the word should be avoided is relatively new. Westlaw searches for decisions containing the euphemism “the N word” reflect that courts did not use the phrase prior to 1995, after which time it steadily grew in popularity. From 1995 to 2000, courts used “the N word” in 30 decisions; from 2000 to 2005 courts used the abbreviation in 98 decisions; from 2005 to 2010 in 325 decisions; from 2010 to 2015 in 543 decisions; and from 2015 to 2020 in 656 decisions.
Judicial sensitivity to the term likely arose from the O.J. Simpson trial. On January 13, 1995, L.A. County Prosecutor Christopher Darden and famed defense counsel Johnny Cochran sparred over whether Detective Mark Fuhrman’s use of the epithet was admissible at trial. The issue continued to dominate the trial proceedings throughout the spring and summer of 1995. The attorneys’ arguments still resonate today.
Prosecutor Darden took the zero-tolerance approach that is ascendant today:
If a white male takes the witness stand and that word is uttered in this courtroom, it will offend every black juror on this case. It will offend me, it will offend Mr. Cochran, it will offend Mr. Simpson, it will offend the African American reporters in this courtroom and it will offend the public and any other African American within earshot of that word. It is a dirty filthy word . . . It is an extremely derogatory and denigrating term because it is so prejudicial and so extremely inflammatory that to use that word in any situation will evoke some type of emotional response from any African American within earshot of that word. I spoke to Dean Uelmen earlier this morning and I asked him — I said, “Dean, are you going to use the “N” word during argument today?” He said, “nope, not me.” . . . It is the filthiest, dirtiest, nastiest word in the English language. It has no place in this case or in this courtroom. It will do nothing to further the Court’s attempt at seeking the truth in this case. It will do one thing. It will upset the black jurors.
Johnny Cochran responded:
(Christopher Darden’s) remarks this morning are perhaps the most incredible remarks I’ve heard in a court of law in the 32 years I have been practicing law. His remarks are demeaning to African Americans as a group. And so I want to apologize to African Americans across this country. Not every African American feels that way. It is demeaning to our jurors to say that African Americans who have lived under oppression for 200 plus years in this country cannot work within the mainstream, cannot hear these offensive words. African Americans live with offensive words, offensive looks, offensive treatment every day of their lives, but yet they still believe in this country. And to say that our jurors, because they hear this offensive word — every day that people call, that they interact with people, we have heard this in the questionnaires — to say they can’t be fair is absolutely outrageous.
Simpson’s defense team eventually prevailed and Judge Lance Ito allowed the jury to hear evidence of Detective Fuhrman’s use of the racial epithet. But Christopher Darden’s emotional plea may have had a greater impact as it set in motion a judicial reckoning with the term that is still on-going. There is an obvious irony, however, that Darden’s zero-tolerance argument is now viewed as more progressive and race-conscious. Darden advanced the argument to suppress evidence of the racism of the white detective who presided over the investigation of the black male defendant for the murder of a white woman.
Much of the judiciary still subscribes to the traditional belief that the N word may be used in unexpurgated form when quoting another decision or discussing a party’s pleadings or testimony. Prior to 1995 this was the universal practice and courts never used abbreviations or euphemisms to avoid the term. Since 1995, a growing segment of the judiciary has started to agree that non-malicious use of the term may be deemed offensive. Those courts therefore avoid using the term themselves and increasingly use abbreviations of the terms even when quoting others.