Balkinization: N-Word Issues Revisited, and the "Use-Mention" Distinction Questioned

N-Word Issues Revisited, and the "Use-Mention" Distinction Questioned

Mark Tushnet

A recent article by philosopher Gerald Dworkin (brought to my attention by Brian Leiter) provokes these thoughts about recent controversies, some in law schools, about the n-word. Dworkin helpfully describes what I had thought was the most important first step in thinking about those controversies, the distinction between use and mention. But, almost in passing, he suggests the possibility that drawing that distinction actually might not be all that helpful.

The idea behind the distinction is this: A person who uses the n-word inflicts harm of a certain sort, which I’ll call – I think accurately, but I don’t think anything turns on whether I’m using the term correctly – semantic harm. A person who mentions the n-word doesn’t inflict semantic harm. The usual argument about the use-mention distinction in this context goes as follows.

Noting the difference between use and mention doesn’t tell us what to do in response to the semantic harm but whatever we think we should do about it, we shouldn’t do the same thing when semantic harm doesn’t occur. (There’s of course a non-trivial argument, which Dworkin lays out, that we shouldn’t do anything about the harm caused by mentions – and because all issues about regulating speech involve figuring out what to do when speech inflicts harm, the mere fact that harm occurs doesn’t justify regulation.)

Dworkin mentions, so to speak, controversies over the use of the word “niggardly,” but doesn’t build them into his analysis. People avoid using that word (or at least might reasonably avoid using it) even though it has no relation to the n-word either etymologically or semantically, because they believe that some listeners will hear the sounds of the word and experience harm. Here the harm isn’t semantic, of course. Instead, it involves what I’ll call “phonic” harm: A person experiences harm simply upon hearing the sounds that constitute the word.

Now, suppose, as I suspect is true, that the neural mechanism linking semantics to harm is different from the neural mechanism linking phonics to harm. The phonic harm occurs when the word is mentioned. If that harm is roughly similar to the semantic harm inflicted when the word is used, then the use-mention distinction doesn’t help us figure out what to do in response to the harm (because, again, it occurs in cases of mention).

One possibility is that the semantic harm is similar to but in some sense worse than the phonic harm, so that – for example – regulation of uses, which combine semantic and phonic harm, might be justified even though regulation of mentions, which cause only phonic harm, would not be. Working that possibility out requires some analysis of the sense in which semantic harm is worse than phonic harm -- and I'm pretty confident that such an analysis would make sense to me. I now think, though, that the use-mention distinction alone doesn't get the job completely done.

Posted 9:00 PM by Mark Tushnet [link]