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Diary of a Mad Law Professor

Sensation

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A friend and I were sitting around commiserating about the things that get to us: unloading small indignities, comparing thorns. "So there I was," she said, "sitting on the bus and this man across the aisle starts waving a copy of law professor Randall Kennedy's new book Nigger. He's got this mean-looking face with little raisiny eyes, and a pointy head, and he's taking this book in and out of his backpack. He's not reading it, mind you. He's just flashing it at black people."

"Don't be so touchy," I responded. "Professor Kennedy says that the N-word is just another word for 'pal' these days. So your guy was probably one of those muted souls you hear about on Fox cable, one of the ones who's been totally silenced by too much political correctness. I'd assume he was just trying to sign 'Have a nice day.'"

"Maybe so," she said, digging through her purse and pulling out a copy of Michael Moore's bestselling Stupid White Men. "But if I see him again, I'm armed with a 'nice day' of my own."

"That's not nice," I tell her. "Besides, I've decided to get in on the publishing boom myself. My next book will be called Penis. I had been going to title it Civil Claims That Shaped the Evidentiary History of Primogeniture: Paternity and Inheritance Rights in Anglo-American Jurisprudence, 1883-1956, but somehow Penis seems so much more concise. We lawyers love concision."

She raised one eyebrow. "And the mere fact that hordes of sweaty-palmed adolescents might line up to sneak home a copy, or that Howard Stern would pant over it all the way to the top of the bestseller list, or that college kids would make it the one book they take on spring break----"

"...is the last thing on my mind," I assured her. "Really, I'm just trying to engage in a scholarly debate about some of the more nuanced aspects of statutory interpretation under Rule 861, subsection (c), paragraph 2... And besides, now that South Park has made the word so much a part of popular culture, I fail to see what all the fuss is about. When I hear young people singing lyrics that use the P-word, I just hum along. After all, there are no bad words, just ungood hermeneutics."

"No wonder Oprah canceled her book club," she muttered.

Seriously. We do seem to have entered a weird season in which the exercise of First Amendment rights has become a kind of XXX-treme Sport, with people taking the concept of free speech for an Olympic workout, as though to build up that constitutional muscle. People speak not just freely but wantonly, thoughtlessly, mainlined from their hormones. We live in a minefield of scorched-earth, who-me-a-diplomat?, let's-see-if-this-hurts words. As my young son twirls the radio dial in search of whatever pop music his friends are listening to, it is less the lyrics that alarm me than the disc jockeys, all of whom speak as though they were crashing cars. It makes me very grateful to have been part of the "love generation," because for today's youth, the spoken word seems governed by people from whom sticks and stones had to be wrested when they were children--truly unpleasant people who've spent years perfecting their remaining weapon: the words that can supposedly never hurt you.

The flight from the imagined horrors of political correctness seems to have overtaken common sense. Or is it possible that we have come perilously close to a state where hate speech is the common sense? In a bar in Dorchester, Massachusetts, recently, a black man was surrounded by a group of white patrons and taunted with a series of escalatingly hostile racial epithets. The bartender refused to intervene despite being begged to do something by a white friend of the man. The taunting continued until the black man tried to leave, whereupon the crowd followed him outside and beat him severely. In Los Angeles, the head of the police commission publicly called Congresswoman Maxine Waters a "bitch"--to the glee of Log Cabin Republicans, who published an editorial gloating about how good it felt to hear him say that. And in San Jose, California, a judge allowed a white high school student to escape punishment after the student, angry at an African-American teacher who had suspended his best friend, scrawled "Thanks, Nigga" on a school wall. The judge was swayed by an argument that "nigga" is not the same as "nigger" but rather an inoffensive rap music term of endearment common among soul brothers.

Frankly, if Harvard president Lawrence Summers is going to be calling professors to account for generating controversy not befitting that venerable institution, the disingenuous Professor Kennedy would be my first choice. Kennedy's argument that the word "nigger" has lost its sting because black entertainers like Eddie Murphy have popularized it, either dehistoricizes the word to a boneheaded extent or ignores the basic capaciousness of all language. The dictionary is filled with words that have multiple meanings, depending on context. "Obsession" is "the perfume," but it can also be the basis for a harassment suit. Nigger, The Book, is an appeal to pure sensation. It's fine to recognize that ironic reversals of meaning are invaluable survival tools. But what's selling this book is not the hail-fellow-well-met banality of "nigger" but rather the ongoing liveliness of its negativity: It hits in the gut, catches the eye, knots the stomach, jerks the knee, grabs the arm. Kennedy milks this phenomenon only to ask with an entirely straight face: "So what's the big deal?"

The New Yorker recently featured a cartoon by Art Spiegelman that captures my concern: A young skinhead furtively spray-paints a swastika on a wall. In the last panel, someone has put the wall up in a museum and the skinhead is shown sipping champagne with glittery fashionistas and art critics. I do not doubt that hateful or shocking speech can be "mainstreamed" through overuse; I am alarmed that we want to. But my greater concern is whether this gratuitous nonsense should be the most visible test of political speech in an era when government officials tell us to watch our words--even words spoken in confidence to one's lawyer--and leave us to sort out precisely what that means.

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