Eenie, meenie, minie ... lawsuit

"Eenie, meenie, minie, moe; pick a seat, we gotta go," says a Southwest Airlines flight attendant. This speech may violate the law, rules a federal judge. Hard to believe in a nation with the First Amendment — but welcome to the wild world of hostile-environment law.

Two African-American passengers are suing Southwest, claiming the "eenie, meenie" line violated antidiscrimination law. The original child’s rhyme, it turns out, ended with "catch a nigger by his toe," though for decades it’s been rendered "catch a tiger by the toe" — that’s how I heard it in the 1970s, and how the flight attendant says she learned it.

"Because of [this] history," Judge Kathryn Vratil said that "the phrase ‘eenie, meenie, minie, moe" could reasonably be viewed as objectively racist and offensive." It’s thus up to the jury to "decide whether [the flight attendant’s] remark was racist, or simply a benign and innocent attempt at humor."

Of course, if this ruling is upheld, things can’t stop there. Presumably I’ll be able to sue about references to "a pound of flesh" because they remind me of the anti-Semitism of "The Merchant of Venice" Chinese Americans could sue over "chink in the armor" because "chink" in other contexts, is a racial slur. "Niggardly" which is sometimes confused for a slur, would likewise be punished — not just by public opinion, but by government coercion through threat of massive damages verdicts.

Southwest might escape liability if the jury decides the flight attendant had no racist motive. But how much consolation is that? Would you feel free to say things that might lead to a lawsuit, on the hopes that you could — tens of thousands of dollars in attorney fees later — persuade a jury that your intentions were "benign and innocent" ?

This wave of speech suppression began in the 1980s with hostile-work-environment harassment law, which punishes speech that creates a "hostile … or offensive work environment" for employees based on race, religion, sex and so on. This vague standard has been found to potentially cover jokes, political statements, art, religious proselytizing and more.

Now, campus speech codes are being analogously justified as a means of preventing "offensive educational environments"; and the government is punishing speech in bars, airplanes and other places on an "offensive public-accommodations environment" theory. Remember that the next time you say "eenie, meenie" in a restaurant where a waiter or another patron may be offended.

A few weeks ago, The New York Sun attacked free speech from the right, by suggesting that antiwar advocacy be suppressed because it may help our enemies. Now, a federal court attacks free speech from the left, by holding that speech may be punished if it reminds people of bigoted expressions. The notion that a free people must deal even with offensive speech, and that the public deserves to hear all viewpoints, is again under assault from both sides. And if this assault isn’t constantly fought, the censorship will spread — as it has in the strange career of hostile-environment law.

News Clip by EUGENE VOLOKH

Volokh is professor of law and runs the Volokh Conspiracy Web log