What Is The Appropriate Response To Speech That Causes Harm?

My work was recently involved in a larger debate about the power, and harm, of certain words.

A controversy has been stirred up, including right here in the digital pages of Above the Law over a law review article authored by Harvard Law Professor Randall Kennedy and UCLA Law Professor Eugene Volokh. The law review article argues that law professors, and perhaps students, should resist censoring epithets when quoting primary sources, such as case law, while in the classroom.

A columnist, LawProfBlawg, countered Kennedy and Volokh’s article, with a highly critical piece here at Above the Law. In a post to the Volokh Conspiracy blog, the professors responded to LawProfBlawg by bringing attention to my own work posted almost two years ago that included an unedited racial epithet in a block quote of a historical record. Elie Mystal then joined the fray by making a return to Above the Law condemning the use of the word by the professors in any circumstances (while acknowledging that he could say it but chooses not to), but also stating that had he seen my work, he would have censored it without my permission. Since then, LawProfBlawg has written another response.

Although none of these arguments were directed at me in particular, because my work was referenced, I feel some measure of reply by me is warranted. Because I began writing this response over Mother’s Day weekend, I also feel obligated to take my mom’s life advice to begin a difficult discussion by identifying where I agree with others.

I agree wholeheartedly with Elie that editing my work in the way he describes would not have impacted “the nature of the content[.]” To me, this is a powerful argument. Honestly, if it doesn’t impact the point you want to make, who really cares? But I also agree with Kennedy and Volokh that the use-mention distinction is a routine distinction we make all the time and should be uncontroversial in most circumstances. Lastly, I agree with LawProfBlawg that the research he cites discussing the harm that results from the use of epithets in the classroom should assume a central role in this debate. Moreover, the fact that neither Kennedy nor Volokh addressed this research substantially weakens their position.

Truth be told, I honestly do not know where my disagreement lies in this debate because it is not altogether clear to me what LawProfBlawg or Mystal thinks the punishment should be when a professor chooses not to edit out certain words. Should a law professor be fired for accurately reciting a free speech case that focuses on racial slurs? If they are a professor at a public school could they even be fired legally? Because punishing a professor at a public school or even a private school under such circumstances has presented significant legal problems before.

To be clear, I do not ask any of this while denying or circumscribing the harm that certain words, including epithets, cause. Indeed, I submit only an ignorant person would claim that speech does not cause harm; in fact, speech can get people killed.

Take an often-used example by the late Christopher Hitchens. The so-called “blood curse” contained in the Bible (Matthew 27: 24-25) which places blame on a crowd of Jewish people for calling for the death of Jesus. Whether the authors of the Bible intended it or not, this one verse has been invoked as the justification for countless numbers of atrocities committed against the Jewish people collectively. I submit such religious conflict, and anti-Semitism in general, still poses a significant threat now and for the foreseeable future. But what is to be done about it? Should the Bible be censored? Does any good-faith person think that if the Bible is censored that the problem of anti-Semitism would be decreased?

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However, possessing the freedom to speak recklessly, wrongly, or even hatefully, does present benefits to society. As Jon Stuart Mill put it, we obtain a “clearer perception and livelier impression of truth,” simply “by its collision with error.” And this benefit does not diminish the more serious or important the speech. In one of the most powerful free speech cases, the Supreme Court stated the “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

Look, if I were a law professor, I would want to adopt an approach that best serves my students’ ability to learn. If adding a few asterisks here and there accomplishes that, I honestly could not care less. But at the same time, while adopting moral standards are a good thing, including for law professors, what I come out of this debate thinking is we need to be careful about how we, or the state, tries to enforce such standards.


Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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