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I recently saw a Youtube Short featuring a man interviewing Jordan Peterson and they were discussing the legality of calling someone by racial slurs, specifically the N-word. Seemingly having actually to do with the legality of calling transpeople by their deadnames or old pronouns. Peterson was not suggesting at all that it is OK to call a black person the N-word, but that he simply stating that it is not illegal in the US.

Host: For example, if a black guy said "Hey, I'm black." You can just say no, you're not, and then can you use racial epithets, or what he considers to be racial epithets?...

Peterson: Can I? Of course I can. Whether I should or not is a different issue, and whether or not it should be illegal is a completely different issue...no its not [illegal]

Host: If a black guy repeat to call him [sic] the n word

Peterson: [interrupting] It's not illegal

Host: its harassment

Peterson: ...It's not illegal in the United States...there's no disagreeing

This got me curious as to who was right? When, if ever, would calling a black person the N-word not be covered under free speech? I'm guessing it varies from state to state, but I'm not certain.

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    I wasn't sure if this question was best suited for here or Skeptics.SE but I thought I'd put it here Nov 3, 2022 at 5:40
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    It always depends upon context.
    – ohwilleke
    Nov 3, 2022 at 19:58
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    Last I checked, it's also not, as a broad rule, illegal to use deadnames or old pronouns for trans people. The cases I've seen conservatives bring up for that are a lot more nuanced than, and involves other details beyond, simply calling someone by the wrong pronoun, even if that's how conservatives typically present it.
    – NotThatGuy
    Nov 3, 2022 at 23:37

3 Answers 3

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The spectrum of "illegal" is broad. One way in which racial epithets are (indirectly) illegal is via anti-discrimination laws, indeed labeled "harassment" by the EEOC

Harassment is unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history). Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

If an employer tolerates racial epithets, they are likely to be the target of a harassment lawsuit. There is no limit on who utters the epithet, thus a customer can be the trigger for a suit. In cases not involving supervisory employees, liability arises if the employer "knew, or should have known about the harassment and failed to take prompt and appropriate corrective action". Analogously, racial epithets in educational institutions are actionable. Framed in terms of a random epithet by a non-employee or campus visitor (where the institution has minimal leverage over the offender), the institution must act, when it becomes aware of such circumstances arising, and cannot just say "What can we do??".

A second (remote) possibility is through the fighting words doctrine, that the government can limit speech that is "likely to incite immediate violence or retaliation by the recipients of the words". This arose initially in Chaplinsky v. New Hampshire – one of the holdings was that

The Court notices judicially that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.

There have been numerous refinements of the doctrine over the decades, so the mere utterance of a racial epithet would not run afoul of properly-restrained "breach of peace" laws. One of the two most-relevant current opinions is Brandenburg v. Ohio, 395 U.S. 444, where the court held that the government cannot

forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action

but uttering an epithet is not advocacy of force or law violation. The second is R.A.V. v. City of St. Paul, 505 US 377 where defendant was charged with violating an ordinance that

prohibits the display of a symbol which one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender"

SCOTUS ruled that "the First Amendment does not permit a state to use content discrimination to achieve a compelling interest if it is not necessary to achieve that interest" (emphasis added), holding that

A few limited categories of speech, such as obscenity, defamation, and fighting words, may be regulated because of their constitutionally proscribable content. However, these categories are not entirely invisible to the Constitution, and government may not regulate them based on hostility, or favoritism, towards a nonproscribable message they contain. Thus the regulation of "fighting words" may not be based on nonproscribable content. It may, however, be underinclusive, addressing some offensive instances and leaving other, equally offensive, ones alone, so long as the selective proscription is not based on content, or there is no realistic possibility that regulation of ideas is afoot.

A further holding is that the law is

is facially unconstitutional because it imposes special prohibitions on those speakers who express views on the disfavored subjects of "race, color, creed, religion or gender." At the same time, it permits displays containing abusive invective if they are not addressed to those topics. Moreover, in its practical operation the ordinance goes beyond mere content, to actual viewpoint, discrimination.

The court has not clearly identified a context in which a law against a racial epithet would be constitutional, they have simply identified other bars that would have to be cleared for such a law to be permissible. No utterance, devoid of context, is illegal, so to discover where such an utterance could be part of a prosecutions, we would need a lot of specific context in the hypothetical.

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    It seems that even under your top example, under employment law, the employer is held liable, not necessarily the person who said the word. The conduct also must be unwelcome, so there must be complaint. That's pretty far, but you do concede it's "indirectly" illegal.
    – user608
    Nov 4, 2022 at 5:02
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    I like your summary paragraph and believe the answer would be improved with it at the top.
    – user608
    Nov 4, 2022 at 5:06
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Freedom of speech flows from the constitution so it is fundamentally a federal topic. Name calling is very legal unless it rises to slander.

I suppose combined with other activities it can be a component of harassment and also can be used as evidence that an actual crime like assault was done with racial malice therefore constituting a hate crime.

But just calling someone a racial slur is protected as free speech.

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    Caveat: Free speech ≠ free of consequences.
    – gnasher729
    Nov 3, 2022 at 7:18
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    An important element of harassment in at least some US jurisdictions is repetition. For example, in New York, harassment in the second degree includes "engag[ing] in a course of conduct or repeatedly commit[ing] acts which alarm or seriously annoy such other person and which serve no legitimate purpose." Using a racial slur could certainly constitute an act that alarms or annoys someone while serving no legitimate purpose. More broadly, while the first amendment might protect the choice of words, that doesn't mean that any act involving the utterance of particular words is protected.
    – phoog
    Nov 3, 2022 at 7:43
  • Still in New York, and further in support of this answer's second paragraph, harassment in the second degree is not among the "specified offenses" in the hate crime statute, but harassment in the first degree is, as is aggravated harassment in the second degree.
    – phoog
    Nov 3, 2022 at 7:47
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    “Legal” here means the government won’t prosecute you, at least not for this alone. If you are an employee and use this towards another employee or towards a customer, you likely lose your job. Using the word before punching someone is strong evidence that the punching was a hate crime. Using it as a customer will very likely get you removed etc. “Going death con on jews” will make you lose billion dollar contracts as one person found out.
    – gnasher729
    Nov 3, 2022 at 17:32
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    "[No, being an asshole is not illegal in the US.]", (slander) +1. Being miserable and treating other people like dirt is every New Yorker's god-given right.
    – Mazura
    Nov 4, 2022 at 0:44
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In the United States, laws that will restrict someone's speech must be have a compelling government interest, and must be narrowly tailor and content neutral and the least intrusive means necessary to accomplish the stated goal. In R.A.V. v. St. Paul (R.A.V. was found guilty of burning a cross on the lawn of an African American family), the court found that St. Paul's ban on hate symbols was unconstitutional because the specific law had an exception for the symbols use in educational material on the history of the symbol. This meant that the law was not content neutral, as they only banned speech when it was used as an expression of hatred, but not when it was used to educate people on why the speech was wrong. Furthermore, they pointed to the fact St. Paul and Missouri had Content Neutral laws that they could have charged R.A.V. with violating but never did so (Specifically, by lighting a fire on someone's property, R.A.V. could have been charged with Arson and Trespassing (and while I'm not sure if it existed in Missori at the time, as the crime was clearly motivate by hatred of someone for protected characteristics, this would also qualify for a charge of a hate crime.). These were crimes that were illegal regardless of the specific motive (or in the case of hate crime, require evidence that the attack had specific hatred of someone for characteristics beyond their control as a motivating factor) and thus does not unduly infringe on R.A.V.'s free speech rights.

In effect this ruling made the banning of a single word unconstitutional under the First Amendment, so, without context and evidence of intent, using the N-Word (or any taboo word) is perfectly legal. The only example I can think of that is outright banned is Child Pornography (The courts ruled that the psychological damage to the child IS a compelling reason to ban it. Even then it's narrowly tailored so that that it must be a photograph of an actual person who was underage at the time the photograph was created AND it has to be with the purpose of sexualizing the child).

With that in mind, there are some examples in entertainment that demonstrate why use of taboo language. The stage magician duo Penn and Teller, routinely close their shows with a magic trick where they burn a U.S. flag (while wrapped in a copy of the Bill of Rights to up the audacity) all while gushing that the reason they love America so much is that they do a lot of "speaking truth to power" and that in order for them to be able to do that, they need to know that they can get away with saying something not acceptable in common society to drive the point home... thus, for Penn, a magic trick where he burns the flag while wrapped in a copy of the freedoms it stands for is nothing but act of Patriotism. As he shows in the trick, "The Flag may be gone, but the Constitution remains." (Because Penn and Teller's schtick is that they will expose how a magician performs a famous trick... and then do a variation that's clearly impossible to do with the exposed method, they often perform the trick a second time, but replace the Constitution wrapping with a transparent plastic sheet to demonstrate that if they were in a country where their constition "isn't worth the paper it isn't printed on" the trick is less impressive>). Futurama had a similar conflict when Zoidberg causes a public outcry after he eats the Earth Flag even though he was doing so because he loved the freedom it represented. In the South Park episode "With apologies to Jesse Jackson", the N-Word is said a total of 18 times without being censored... but the episode's whole point in doing so is to demonstrate the power of the word and why it's so hurtful to an audience that might not have ever had a racial slur directed towards them. The episode received praise from the NAACP for it's message. Probably one of the earliest works that used the term for a more positive message comes in "The Adventures of Huckleberry Finn". In the novel, Huck runs away from home and is joined by a character called "(N-Word) Jim" because Huck learns Jim is running away from home and Huck sees him and Jim as equals because they are both running away. Of course, this being set in the American South before the Civil War, Jim is clearly an escaped slave... but to Huck, who still calls him "N-Word Jim", he's a friend and a good person. In the climax, Jim is captured by slave catchers while Huck is facing having to return to his adopted family and be "civilized" which causes Huck to reflect on two statements one of the adopted family members told him at different points in the story: It's a sin to not help a friend and it's also a sin to help an "N-Word". Remember, to Huck, but Jim is also a black man. Huck has a long series of internal monolog where he tries to figure out how to resolve the conflict, before finally decides that if it's a sin to helm an "N-Word" escape but it's also a sin to not help a friend, then Jim is a friend who Huck would gladly go to hell to help.

All of these examples that can make an argument why specific speech should not be banned. In the time of Mark Twain, the language used wasn't all that offensive to many people... but Mark Twain used the word to break it's power. By naming Jim with a word that makes it clear. Jim is a... an "N-Word"... but that is "what" Jim is... it's not who Jim is and Jim is a good person and a good friend to Huck and worth saving no matter what "civilized" people say.

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    All of these examples that can make an argument why specific speech should not be banned. - that's not really what the question asked though is it? It's more about the philosophy of law rather than what the law is.
    – user438383
    Nov 3, 2022 at 19:33

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