Supreme Court Justice Oliver Wendell Holmes observed in Towne v. Eisner (1918) that “a word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.”
Court rulings under the First Amendment recognize this fact. There are no forbidden words that the government can ban regardless of the circumstances in which they are used. For example, in Hardy v. Jefferson Community College (2001), the federal appeals court in Cincinnati held that an instructor could not be terminated just for discussing the “N” word and how it was historically used to promote racism.
The federal Equal Employment Opportunity Commission would like to change that, though. It would like to ban racially derogatory terms, even when they are used by minorities themselves. The EEOC’s Chairwoman wrote a letter to the editor in the January 4 issue of Time Magazine, denouncing a column by black writer John Ridley about uses of the “N” word. “We will continue our efforts to eradicate the harmful slur from the workplace — forever,” she wrote.
Although the EEOC apparently believes that it has the power to use discrimination lawsuits to ban racially-charged words, it may face countersuits in the courts.
In White v. Lee (2000), the federal appeals court in San Francisco ruled that citizens investigated for “discriminatory” speech against a housing project by a federal agency (the Department of Housing & Urban Development) could turn the tables on civil-rights officials and sue them individually for First Amendment violations and emotional distress and punitive damages.
The same principle applies to the EEOC. It might be subject to a First Amendment lawsuit by an employer with a legitimate reason for using the N-word, such as a publishing house involved in publishing the book by black comedian Dick Gregory whose title itself was the N word.