Nigger: The Strange Career Of A Troublesome Word (11 page)

Michael Brad Magleby, for instance, was charged with committing crimes in connection with burning a cross on the property of an interracial family. During the trial, over defense counsel's objections, prosecutors read lyrics of a song that Magleby was said to have listened to on the evening of the cross burning. The lyrics featured numerous references to
nigger
, as in “Nigger, nigger, get out of here.”
⁹⁷
A court of appeals upheld Magleby's conviction, holding that the trial judge had not abused his discretion by admitting the song lyrics into evidence.

In another case, Jack William Tocco was prosecuted for racketeering. During his trial, prosecutors played taped conversations for the jury in which the defendant and a close associate could be heard saying, among other things, that they “might win up here [in Detroit] with a nigger trial, nigger jury.”
⁹⁸
While agreeing with the defendant that “those particular denigrating comments were unfairly prejudicial,” an appellate court affirmed his conviction because the prejudicial comments constituted only a small portion of the captured discussion, and other evidence also pointed to his guilt.
⁹⁹

The issue surfaces in civil as well as criminal cases. Aleia Robinson sued the United States Postal Service for violating Title VII of the Civil Rights Act by discriminating against her on racial grounds. At trial she sought to introduce into evidence a document entitled “Nigger Employment Application,” which in her view supported her contention that racism was
pervasive at the Cincinnati, Ohio, facility where she worked. A parody of a standard employment application, this document listed as possible choices for birthplace the zoo, a cotton field, a back alley, and an animal hospital. Robinson stated that she was prepared to present witnesses who would testify that the parody had been widely circulated at her workplace, that no one had ever been disciplined in connection with it, and that it had prompted nothing more than laughter on the part of several supervisors. A magistrate judge excluded the application from evidence, declaring that it was irrelevant to the legal issues in question and would be more prejudicial than probative in resolving the dispute. A court of appeals disagreed, finding that the magistrate judge's evidentiary ruling had been overly restrictive. Robinson was awarded a new trial.
¹⁰⁰

In a suit charging police officers with using excessive force in making a lawful arrest, a judge excluded from evidence a portion of a tape recorded during the incident in question. The excluded portion would have revealed that an arresting officer shouted at one point, “Did you get that nigger?”
¹⁰¹
A court of appeals reversed and granted the plaintiff a new trial. Exasperated, the appellate tribunal declared, “It is difficult to understand why [the trial judge] believed that all of the words uttered at the time of the arrest and beating were probative and helpful to the task the jury faced, except the phrase containing the word ‘nigger.’… Because the district court did not state for the record any reason for excluding this evidence, and neither the parties nor this court can discern any reason for its exclusion, we hold that the district court abused its discretion.”
¹⁰²

Of course, the most famous evidentiary ruling involving the N-word came in response to efforts to bring a witness's use of the term to the attention of the jury in the murder trial of O. J. Simpson.
¹⁰³
In that case, Simpson was charged with murdering his former wife Nicole Brown Simpson and an acquaintance of hers named Ronald Goldman. The police had allegedly found incriminating evidence at the murder site and at Simpson's residence, including a bloody glove presumably worn by the murderer. Simpson's attorneys maintained that the bloody glove had been planted by police officer Mark Fuhrman.

The prosecutors requested that the presiding judge, Lance Ito, prevent defense counsel from questioning Fuhrman with regard to his racial attitudes, including his alleged penchant for derogatorily referring to blacks as niggers. The title of the prosecution's motion—“People's Motion … to Exclude from Trial Remote, Inflammatory, and Irrelevant Character Evidence regarding L.A.P.D. Detective Mark Fuhrman”— revealed its essential argument. Pleading for the judge to exclude any inquiry into Fuhrman's linguistic habits, prosecutor Christopher Darden declared that because the N-word “is the filthiest, dirtiest, nastiest word in the English language,” references to it “will blind the jury. It will blind them to the truth. … It will affect their judgment. It will impair their ability to be fair and impartial.… If you allow [the defense] to use their word and play this race card, not only [do] the direction and the focus of the case change, but the entire complexion of the case changes. It is a race case then. It is white versus black, African American versus Caucasian, us versus them, us versus the system.”
¹⁰⁴

The defense responded with a dual argument. First, it maintained that evidence relating to Fuhrman's racial views was relevant to its theory that for reasons of racial animus, the officer had planted evidence. Second, it derided the notion that testimony regarding Fuhrman's use of the word
nigger
would prevent jurors from sensibly evaluating the evidence at hand. It was “demeaning,” defense counsel Johnny Cochran argued, to suggest that black jurors—“African Americans [whose forebears] have lived under oppression for two hundred–plus years in this country,” and who themselves had lived with “offensive words, offensive looks, [and] offensive treatment every day of their lives”—would be unable to deliberate fairly if they were made aware of a witness's racial views, as evidenced in part by his usage of the N-word.
¹⁰⁵

Judge Ito rightly decided to permit Simpson's attorneys to ask Fuhrman whether, over the preceding ten years, he had ever used the N-word. Fuhrman denied that he had—a statement that, instead of ending the matter, set the stage for a second controversy. Several months after Fuhrman's denial, audiotapes were discovered on which he was heard using the N-word repeatedly and with relish. The defense attorneys, not surprisingly, sought to introduce this new evidence in its entirety. The prosecution, for its part, sought to prevent or at least to minimize the jury's exposure to the tapes. Judge Ito compromised: he permitted the jury to hear Fuhrman say “nigger” twice and also allowed the defense to elicit an acknowledgment that in the taped conversations he used the N-word some forty-one times. The jury subsequently acquitted
Simpson, in perhaps the most hotly debated jury verdict in American legal history.

Like every other significant feature of American life—including cigarettes, guns, pornography, drugs, stock trading, sex, religion, and money—
nigger
is thoroughly enmeshed in litigation. The disorderly diversity of the conflicts in which it figures is remarkable. The following three cases illustrate that variety.

Otis Ross successfully sued the Douglas County, Nebraska, correctional facility for violating federal antidiscrimination law. Ross, a black prison guard, complained of being subjected to a constant barrage of abuse by a supervisor who addressed him as “nigger” and “black boy” and referred to Ross's white wife as “whitey.” The abusive supervisor was also black. The county posited that as a matter of law, blacks could not subject other blacks to a racially hostile workplace. The judges, however, wisely rejected that argument, quoting Thurgood Marshall's observation that given the mysteries of human motivation, “it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.”
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In a second case, a white woman sued for and won a divorce after forty years of marriage and three children. She alleged that her husband had subjected her to cruel and inhuman treatment due to his rage at their daughter's decision to marry someone whom the court described as “a gentleman of Puerto Rican descent.” The husband had refused to attend the wedding
and would not speak to his daughter or acknowledge his son-in-law. Infuriated by his wife's acceptance of the marriage, he told her that her presence made him feel like puking. For good measure, he repeatedly called her a nigger lover.
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A third memorable case arose from one man's efforts to effectuate Lenny Bruce's strategy to defang
nigger
through continuous use. Russell Lawrence Lee petitioned a court to change his name to “Mister Nigger.”
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His intention in doing this, he wrote, was to “steal the stinging degradation—the thunder, the wrath, the shame and racial slur—from the word
nigger.”
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A trial court, affirmed by the California Court of Appeals, rejected his petition. The appellate court maintained that while the petitioner had a common-law right to use whatever name he chose, the judiciary did not have to assist him in his experiment and could, in this instance, properly refrain from doing so, since the “proposed surname is commonly considered to be a racial epithet and has the potential to be a ‘fighting word.’ ”
¹¹⁰

These three cases, unusual though they all are, nonetheless represent a type of conflict that judges will continue to face. For
nigger
and its variants will keep showing up in court so long as they remain key words that tap into and reflect powerful emotions. For the forseeable future, at least,
nigger
will constitute a peculiar, resilient, ever-changing fixture in the American jurisprudence of epithets.

A
fter the Civil War, a former master approached a former slave while she was tending livestock. “What you doin’, nigger?” he asked, as he had probably done on many previous occasions. But this time her response was different: she replied, “I ain't no nigger. I's a Negro and I'm Miss Liza Mixon.” Stung, the former master chased his former slave with a whip.
¹

Until the civil rights revolution of the
1960
s, whites in the South typically refrained from addressing blacks as “Mr.” or “Mrs.” but instead called them by their first names or by titles signifying a senior with servile status—titles such as “Uncle” or “Auntie.” Addressing all black men as “boys,” regardless of their age, was another way for whites to observe Jim Crow etiquette.

Positive modifications to such practices have been effected
only through struggle. To avoid or at least minimize belittlement, some blacks made a habit of identifying themselves only by their last names. Blacks furiously objected to
Negro
being spelled with a lower- as opposed to an uppercase
N
, and on March
7, 1930
, the editors of the
New York Times
announced that the paper would henceforth capitalize the
N
in
Negro.
The U.S. Government Printing Office followed suit three years later. Within a decade, capitalization would become the rule at the Supreme Court as well.
²

Referring to blacks derogatorily as niggers, however, was the custom to which blacks objected most strongly. In
1939
, when David O. Selznick was in the throes of producing
Gone With the Wind
, he received hundreds of letters from blacks warning him to remove all “nigger” references from his upcoming film. The letter writers were concerned because the novel on which the film was based was full of such references. So, too, were early drafts of the film script. Initially Selznick sought to solve the problem by promising that the N-word would not be spoken by any white characters, but once he had been made aware of the intensity of blacks’ feelings, he resolved to prohibit its use entirely and took pains to publicize his decision. A form letter declared that his studio had been “in frequent communication with Mr. [Walter] White of the Society for the Advancement of Colored People, and has accepted his suggestions concerning the elimination of the word ‘nigger’ from our picture.”
³

In the years that followed, blacks began to win other, similar battles. By the
1940
s, “sensitivities were sufficiently aroused for Joseph Conrad's
The Nigger of the Narcissus
(
1897
)
to be removed from open shelves in school libraries; for Marjorie Kinnan Rawlings's
The Yearling
(
1938
) to be released in a ‘school edition’ that omitted two passages containing the word
[nigger];
and for Agatha Christie's play
Ten Little Niggers
(
1939
) to be retitled for American consumption as
Ten Little Indians
(and then retitled again as
And Then There Were None)”
⁴

In the
1960
s and the decades thereafter, campaigns against racial indecency gained unprecedented support in mounting countless challenges to racist cultural artifacts. Scores of landmarks on official maps, for example, once bore such names as Nigger Lake, Niggerhead Hill, and Old Nigger Creek.
Nigger
, as we have seen, can have many meanings. But in the context of naming landmarks—an endeavor monopolized until recently by white men—it is clear that the
nigger
memorialized on maps was not the
nigger
of irony or affection but the
nigger
of insult and contempt. Widespread anger at cartographic slurs prompted Secretary of the Interior Stewart Udall to insist in
1963
that the Board on Geographic Names replace all references to
Nigger
with
Negro.
⁵

That same year, during court proceedings in Etowah County, Alabama, a prosecutor insisted upon addressing white witnesses by their last names and black witnesses by their first. At issue in the proceedings was the legality of arrests of civil rights protesters. The prosecutor began his cross-examination of one of the protesters by asking her name. She replied, “Miss Mary Hamilton.” Addressing her as “Mary,” he asked who had arrested her. She repeated her full name and added, “Please address me correctly.” The prosecutor nevertheless continued to call her simply Mary, and the judge directed her to answer
the question. She refused, whereupon the judge held her in contempt of court and immediately imposed a jail sentence and a fine. His ruling, however, would not stand; the Supreme Court of the United States would later reverse it.
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