Linguists' famous feud evidences defamatory power of 'racist' charge

As I've written and spoken about in the past, in the 20-aughts, I was an unwilling combatant, enveloped collaterally, in "the Race Wars" at the University of Arkansas at Little Rock (epilog on my part).  If you've never heard of the Race Wars, you're to be forgiven.  It happened in American flyover country, where nothing in academia matters.  Not like when something happens at UCLA, and we get all vexed about it, like it's the first time, because now it's happened to someone important.  Nevertheless, my experience was life-altering for me.  And as often happens in the course of life's affection for irony, trauma leaves knowledge, wisdom, and even enlightenment in its wake.

One thing the Race Wars did was turn me 180 degrees into a plaintiff's advocate for defamation and privacy torts, even while vigorously maintaining my bona fides as a defender of the First Amendment and freedoms of expression and information.  Oddly enough, as a lawyer in the 1990s, I had once researched, for a case, the question of whether, or to what extent, an accusation of "racist" is capable of defamatory meaning.  I had concluded then, nearly never, even if uttered upon a false factual predicate.  And I was untroubled by that conclusion, because it fit with my then-staunch allegiance to free speech near-absolutism.  When, a decade later, the R-word was weaponized against me—falsely, unless one is speaking systemically, without reference to individual culpability, but that wasn't a thing until recently—I reassessed my analysis.

Yet my research showed, still, a decade ago, that it would be exceedingly difficult, impossible in many jurisdictions, to eke a successful defamation claim out of "racist," even when an accuser is signaling, by wink and nod, a false factual basis for the charge.  Common law evolution is slow, and precedents had mounted upon the conclusion that "racist" is a matter of opinion only, incorporating no assertion of fact, and thus incapable, as a matter of law, of lowering one's estimation in the eyes of the community.  Charged with a false accusation that threatened to end my career, that conclusion felt wrong.  If one were expected to resign one's job upon the mere fact of an accusation, regardless of its veracity, and regardless of any defense—I was asked to—then that seemed to me a sufficiently horrific charge to fit the bill for defamation.

In the years since, I have seen the same dynamic play out in cases around the country, to other people, in academia, employment, politics, and other contexts, repeatedly reinvigorating that nagging question, whether "racist" is merely an expression of opinion, or can carry defamatory meaning.  So it was with great interest, while on involuntary summer/pandemic hiatus from UMass Law, catching up with my reading, that I came upon a little story about the accusation "racist" in a Tom Wolfe book.  I'm breaking hiatus momentarily to share this story with you.

Tom Wolfe's Take on 'Everett v. Chomsky'

I just read Tom Wolfe's Kingdom of Speech (2016), about the origin of language, anthropologically speaking. Wolfe references a brilliant book I read some years ago, Don't Sleep, There Are Snakes (2008), by Daniel Everett, about his language work (and much more) with the isolated Pirahã people in Brazil. What I didn't know was that Everett's book was one important salvo in a vast intellectual war, in anthropology circles, between Everett, and his supporters, and Noam Chomsky, and his acolytes, over Chomsky's theory of "universal grammar" (UG).  (I'm not going into detail on the theories here, because that's not my purpose.)  Everett's 2008 book pretty well laid out UG.

What Wolfe explained in Kingdom of Speech is that Chomsky's people were like a (socialist, but, like, really, socialist) cult; they had been merciless in defending UG against advancing science showing UG to be garbage (I generalize). They would go after scientists to undermine their work and in that way kept UG around as a dominant theory of language development for decades, despite what, we see clearly now, was a dearth of evidence. UG was less science and more belief system, or academic cult of personality, built around Chomsky.

Among the unusual features of the Pirahã language is a lack of verb tense, as well as other treatments of time and relativity (especially the omission of something called "recursion"; again, not going into it here) that make communication with us, speakers of the world's modern languages, very difficult. One could conclude that the Pirahã are not very smart, because they don't communicate the way we do. That's mistaken; it's apples and oranges. But it's difficult to perceive Pirahã intellect until one masters the language, and Everett was the first outsider who ever did, only after years of study (and he is a savant-level quick study).

So here's the pertinent part. Everett was burgeoningly famous for his research on the ground in Brazil. Chomsky hated field work in general and hated Everett in particular, whose research was exploding UG. So, in 2007, Chomsky's side engineered this, according to Wolfe:

"Everett was in the United States teaching at Illinois State University when he got a call from a canary with a PhD informing him that a Brazilian government agency, FUNAI, the Portuguese acronym for the National Indian Foundation, was denying him permission to return to the Pirahã ... on the grounds that what he had written about them was ... racist. He was dumbfounded." (Wolfe's ellipses and emphasis.)

Wolfe further explained:

"Everett expressed nothing but admiration for the Pirahã. But by this time, even giving the vaguest hint that you looked upon some—er—indigenous people as stone simple was no longer elitist. The word, by 2007, was 'racist.' And racist had become hard tar to remove.

"Racist ... out of that came the modern equivalent of the Roman Inquisition's declaring Galileo 'vehemently suspect of heresy' and placing him under house arrest for the last eight years of his life, making it impossible for him to continue his study of the universe. But the Inquisition was at least wide open about what it was doing. In Everett's case, putting an end to his work was a clandestine operation."

It turns out that Don't Sleep, There are Snakes, in 2008, was Everett's rejoinder to this attack. The book was wildly popular, exceeding even the bounds of scholarly readership (thus reaching me), and hammered the nails to shut UG's coffin.

Though things worked out all right for Everett, Wolfe's story evidences, as if more evidence were needed, the defamatory potential of that R-word charge—even at a time when I was being told to let it go, that "words [could] never hurt me."

Incidentally, and strangely collaterally irrelevantly, Wolfe and I both are graduates of Washington and Lee University. As I just read in parody,"Washington and Lee University votes to remove offensive name from school's title. Will now simply be known as 'University.'"