I’m Just Asking or The Fear of Offense May 2022 Column

In my March column “Biased About Being Biased,” we (“we” because, in some mystical way, I consider my readers co-authors) tried to negotiate a path through the forbidding terrain of implicit bias. To refresh our memories, I include my last paragraph: “So, while my colleagues and I strongly support education and awareness to heighten our sensitivity to implicit bias, I cannot help but pose the question of whether we may take that concern too far? Can we carry our concerns about a person’s sensitivity respecting offensive language to extremes? In our judicial opinions, when quoting relevant language that contains offensive words, must we edit and delete the language? Do we use initials in place of words because “everyone knows what the offensive words are”? Our cases are driven by facts, and, depending on the circumstances and relevance of those facts, in subtle ways we may blunt the edge of justice by the deletion of words or phrases that may alter those facts. Are we to condemn those who use offensive words in the context of a speech or article for the purpose of condemning the use of those words?” Oh, yes, there was that final one sentence paragraph at the end of the column: “I hope to summon up the courage to pursue this topic in my next column.” It was after the column was published that I realized I had not deleted that ill-advised last sentence. I reproached myself for this oversight with scatological phrases you hear on television all the time. I attribute this oversight to a state of delirium, experienced by me and many of my colleagues trying to apply the legislation meant to curb perceived inequities in the Penal Code. But eventually (a word of hope), our Supreme Court will figure it out. But now that I am committed to writing this column, this is my concern – the fear I sense among friends and colleagues of offending someone by a remark or, even worse, a written word or phrase. Sensitivity to the legitimate feelings and sensibilities of others is a necessity and a moral obligation as we become aware of inequities and biases we ignored or overlooked in the past. Many businesses and professions require their employees to attend classes, lectures, and discussion groups to achieve this goal. All of us in the judiciary have attended invaluable classes and discussion groups where we, that includes me, discovered unconscious biases. Our education was revelatory and heightened our sensitivity. Our goal is to be aware and, when needed, to change our behavior. But when one’s state of mind becomes so troubled and concerned with saying or writing the wrong thing, creativity is stifled, precision is blunted, and communication with one another becomes vapid. The compulsion not to offend has poured over into other aspects of our lives. For example, I have become nervous playing the piano. Borrowing an observation from Danish pianist and humorist Victor Borge, the piano has a segregated keyboard. I recall playing a harpsichord where the color of the keys was the reverse of the piano. I was going to switch instruments, but blues and bebop don’t cut it on the harpsichord. In a recent edition of The Week magazine, I read that some members of a “Diversity, Equity and Inclusion Committee” criticized a DJ at a school charity event for dressing up in blackface. But the DJ was Black. Many publications now avoid the word “obese.” I suppose “heavy-set” and “overweight” are not any better. I often run my columns by my wife Barbara and my Judicial Assistant Bonnie Edwards before publication in the Daily Journal. I occasionally act on their admonitions like, “Are you really going to write that?” or “You’d better delete that.” I have written about what follows in the past, but it bears repeating. It was a column I ran by some friends, resulting in a unanimous vote that I delete the word “niggardly.” That was not the issue I was concerned about. The word refers to a person who is stingy. I checked the word’s etymology. It was first used in Middle English and derives from Old Icelandic, meaning “parsimonious.” I protested, just because the word sounds like a grossly offensive word, that is no reason to delete it. I argued that to do so is the insult. There is a larger issue here. “Dumbing down” questions the reader’s intelligence. But there is another argument. The “offensive” word is not one often used. Was I unconsciously using it to make a point, and to rile up readers? Why not just use “stingy,” or “parsimonious,” if one wants to sound fancy? This argument was met with a degree of understanding, but with the caveat, “wait awhile.” So…I deleted the word for that column but felt compelled to write about it in a subsequent column. And now here it is again, still unresolved in this writer’s mind … and in other minds as well. I broached the subject at a dinner party last week with a group of affable friends including those of diversity. The discussion was amiable. I think everyone saw the point of view that use of the word was acceptable. But I can’t be sure we resolved the issue. Probably due to the wine. But let’s not dwell anymore on one word. We could discuss other words banned from use, like “obese.” Enough! Let’s turn our attention to what there is to celebrate in our changing world. We have an exemplary judiciary that reflects the rich diversity of our state. And this includes our Supreme Court’s outstanding justices and an extraordinary Chief Justice. She handles a multi-billion-dollar budget; manages the courts through the pandemic; writes scholarly opinions; gives speeches with substance, humor, and insight without notes; and exudes warmth and humanity. Trust me, I get no points for this. In conclusion, I can say that what we extol dwarfs a predicament over a word. Oh dear! I used the word “dwarf.” HELP!