No unbiased observer can say with a straight face that the American Civil Liberties Union is doing a particularly good job these days of protecting Americans’ civil liberties. Perhaps most egregious is that the aclu, bowing to pressures from progressives, no longer appears to consider protecting free speech a priority.
Still, once in a while, even now, there is a happy surprise. Last month, for example, the aclu represented the National Rifle Association before the Supreme Court in a First Amendment case. While the aclu could not resist signaling its virtue—“we abhor many of the group’s goals, strategies, and tactics”—it did take the right side in this case, which is likely to prevail.
But then there are the unhappy surprises. Among the most remarkable is the ongoing saga of Kate Oh, a lawyer who worked for the aclu as a senior policy counsel until May 2022, when she was fired. In early March of this year, three members of the National Labor Relations Board denied the aclu’s request to appeal an administrative-law judge’s decision about its dispute with Oh. This denial brought the issues to a wider audience, including readers of The New York Times, which published an article online on March 22 that made the front page of the hard copy of the paper the next day.
Why did the aclu dismiss Oh? Here’s how the aclu’s lawyer—that is to say, the New York labor and employment lawyer Kenneth Margolis, whom the aclu hired, no doubt at considerable expense—explained it in the arbitration hearing on March 6, 2023:
[Oh] was terminated for violation of her obligation to maintain a workplace free of harassment, including in her engaging in repeated hurtful and inciteful conduct for [sic] colleagues that impugns their reputation and her demonstration of a pattern of hostility toward people of color, particularly black men, and her significant insubordination.
In a recent blog post, “The aclu is Trying to Destroy the Biden nlrb,” the lawyer and political commentator Matt Bruenig provides the documents submitted to the nlrb on August 1, 2023, including the transcript of the arbitration hearing (Bruenig’s Exhibit 3). He spells out in unsparing language why what the aclu is doing to Oh is both unhappy and surprising. For one thing, the aclu, which is normally a supporter of the workers’ rights movement, has been endeavoring to keep Oh from the courts and force her and others into mandatory arbitration. And for another, “certain HR departments,” like the aclu’s, “have realized that, in the current dei-inflected environment, they can lodge baseless racism accusations against outspoken workers to provide cover for firing them.” To quote the Times,
The aclu acknowledges that Ms. Oh, who is Korean American, never used any kind of racial slur. But the group says that her use of certain phrases and words demonstrated a pattern of willful anti-Black animus.
As Bruenig puts it, “It’s hard to imagine that the individuals and foundations that donate to the aclu want to see the organization use their money to undermine workers [sic] rights like this.”
When both The Nation and The Daily Caller excoriate the aclu, it’s clear there’s a real problem—though, unsurprisingly, these two publications don’t say quite the same thing. For example, Hamilton Nolan in The Nation decries attempts by left-wing groups, such as the aclu, “to try to smash [their] own workers’ union” but does not mention Oh by name or the question of free speech. It is to the credit of Bruenig, a socialist, that he cares about both issues. Sure, he is probably more interested in labor laws than in speech: his blog is called “nlrb Edge,” after all, and a second post on the aclu fiasco has the title “The aclu’s Push to Expand Arbitration Deferral Needs to Stop.” But a third post is titled “The aclu is Attacking Free Speech at the nlrb.” Read them all.
Arguments about the desirability of unions I leave to others. But as a linguist, I feel obligated to comment on the trouble with firing someone for expressing herself as Oh did.
Between February and April 2022, Oh made several statements that the aclu regards as seriously problematic. First, in a Zoom meeting after the departure from the aclu of a senior black executive named Ronald Newman—someone who had been the subject of complaints from a number of employees, including Oh—she suggested that things still might not change, writing, “Why shouldn’t we simply expect that ‘the beatings will continue until morale improves.’” According to Margolis, this “language of physical violence” was “highly offensive to members of th[e] group, especially its black participants,” some of whom “expressed distress.” The matter was brought to the attention of the person who was then the aclu’s “unapologetically queer and Black” chief equity and inclusion officer, someone by the name of Amber Hikes who used the pronouns “they/she.” (Just this past week, on Easter and International Transgender Day of Visibility, Hikes, who is now deputy executive director for strategy and culture, posted this on Instagram: “Allow me to reintroduce myself. . . . I’m AJ (they/them).” Hikes’s aclu bio reflects the change.) Hikes then wrote to Oh to say that her words, which even Hikes called “metaphorical” and “hyperbolic,” constitute “violent language” and have a “very real impact.” For some reason that I cannot fathom, Oh apologized, profusely, which—if I am right to assume that she did not feel she had anything to apologize for—she ought never to have done.
That would perhaps have been the end of the story had Oh not the following month said in a telephone conversation with Ben Needham, a black man whom Margolis characterized as “her immediate supervisor,” that she was “afraid” to bring certain subjects up to him. According to Margolis,
Ms. Oh’s accusation was extremely disturbing to Mr. Needham, who viewed it as a racist trope involving fear of black men. He complained to senior aclu officials, including Ms. Hikes . . . regarding the impact of Ms. Oh’s characterization. He wrote that, “As a black male language like ‘afraid’ generally is a code word for me. It’s triggering for me.”
Finally, there was the aftermath of the telephone conversation with Needham, during which Oh claimed that another aclu employee had lied to her: Lucinda Ware, a black woman whom Margolis also described as “her immediate supervisor.” When Hikes spoke to Oh about this conversation, Oh pushed back, which led Hikes to write to her the following:
You have engaged in ways that harmed your black colleagues. . . . I will continue to do my job of having difficult conversations with the aim of building up a culture of accountable anti-racism at the aclu.
You reference the conversation we had about harm you were causing your black colleagues as me chastising and reprimanding you. . . . Calling my check-in chastising or reprimanding feels like a willful mischaracterization in order to continue the stream of anti-black rhetoric you’ve been using throughout the organization.
Oh was no longer willing to apologize, and the machinery against her moved ahead. To be sure, Oh did herself no favors by going on to post on her Twitter account during a staff Zoom meeting such sentiments as “I can’t overstate just how physically repulsed I feel working under incompetent/abusive bosses.” Soon thereafter, she was gone.
I do not have the impression that I would like Oh very much, either personally or politically. And it is possible—my view would depend on circumstances that I do not know—that she should have been lightly reprimanded for her tweets during that last Zoom call. But the claim that she engaged in racist rhetoric by speaking out to and about her bosses and the dei officer, all of whom happen to be black, is both ridiculous and—because it will set a precedent if the aclu doesn’t back down—dangerous.
Oh used one adjective (“afraid”) to describe her own negative emotion and three other words—two verbs (“chastising” and “reprimanding”) and a noun (“beatings”)—to describe the actions of others. Not one of these is plausibly racist, either historically or in contemporary parlance.
Now, some will say that at issue here are not the individual words but rather the picture these words paint of black people as angry, violent, and scary. I will return to this after addressing what is known about each of the four words.
First: “afraid.” Historically the past participle of the now thoroughly archaic verb “affray” (meaning “to frighten, terrify”), “afraid” is a common word that expresses a common feeling: roughly the twelve-hundredth-most-used word in the language, showing up in American writings with the same frequency as “October,” “funny,” “immediately,” “cost,” “announce,” and “fish.” The average speaker of English knows perhaps twenty-five thousand vocabulary items, and the average employee of the aclu probably knows many more than that. It is thus fair to assume that all parties involved use and hear the word “afraid” with some frequency. It takes no work to collect examples that have nothing to do with fear of black people: Edward Albee’s Who’s Afraid of Virginia Woolf?, Judith Butler’s new book Who’s Afraid of Gender?, a Times article from 2021 titled “The 37-Year-Olds are Afraid of the 23-Year-Olds Who Work for Them,” the claim that “6 percent of Americans say they’re afraid of clowns,” and so on. If I may be personal, I have not infrequently been afraid to talk to white people in superior positions, some of whom have chastised and reprimanded me.
Incidentally, the Times article that discusses Oh’s supposed use of coded anti-black language reports, gratuitously, that Needham “is gay and grew up in the Deep South.” Since no one claims that Oh has exhibited anti-gay bias or that she wishes, say, for the restoration of the Confederacy, this is what I’d actually call coded language: designed to make the reader who is sympathetic to “intersectionality” feel more negative about Oh.
Next up: “reprimand.” No one can deny that Hikes did reprimand Oh; in fact, reprimanding wayward employees was presumably part of Hikes’s job. What, then, is the problem? Is the idea that “reprimand” is a verb of violence? If so, this is untenable: no recorded use of the word since 1710 has a physical rather than a verbal meaning. It is true that reprimere, its source in Latin (which developed into French réprimander, from which English borrowed the word), meant in the first place “to hold in check by physical restraint.” But no reasonable person would say that Cicero provides a model for how speakers of English today use the word. Furthermore, I know of no evidence that black people especially are believed to engage in reprimanding.
The exchange between Oh and Hikes coupled “reprimand” with “chastise.” Unlike the former, the latter verb has historically often been used in a physical sense and still can be used thus today, though the sense “hit with words” is common enough as well. (Merriam-Webster gives the primary meaning as “to censure severely,” offering as the example sentence “The coach chastised the players for their mistakes.” By contrast, the OED wrongly records that the only prevalent meaning in contemporary English is “[t]o inflict punishment or suffering upon, with a view to amendment; also simply, to punish, to inflict punishment (esp. corporal punishment) on.”) Again, though, I know of no evidence that “chastise” is used more often of black people than others.
This brings us to “beatings.” Here the physical meaning is clearly vastly more common than the idea of verbal abuse. And there is a lot of evidence since “beat”—the verb from which the noun “beating” is derived—is about the one-thousandth-most-used word in English, with the same frequency as “leg,” “contain,” “cool,” and “democratic.” But, yet again, black people do not appear to be overrepresented as the perpetrators of these beatings. Yes, the beating that has probably received the most national press recently is the case of Tyre Nichols, who was kicked and punched to death by five black police officers in Memphis in 2023—but Nichols was himself black, which is why there have been such headlines in the Times as “Tyre Nichols Beating Opens a Complex Conversation on Race and Policing.” The police beating that started these conversations was of course that of Rodney King in Los Angeles in 1991: a black man who was brutalized by a group of white and Hispanic officers.
It is interesting to think about what the difference might be if Oh had used a word like “lynchings” or “whippings” instead of “beatings”: two more specific forms of violence that are coded as anti-black. If she had used such language, this would have been insensitive, I believe, but it would not have been an instance of a negative racial stereotype since, after all, the standard association is that violent white people lynch and whip oppressed black people, not that black people are themselves lynchers and whippers.
In any case, as I have already noted, Hikes explicitly spoke of Oh’s use of the word “beatings” as “metaphorical” and “hyperbolic”: even Hikes recognized that Oh wasn’t accusing anyone, of any race, of physical assault. Furthermore, it is important to remember that Oh employed the word in a set phrase: “Why shouldn’t we simply expect that ‘the beatings will continue until morale improves’” (note the internal quotation marks). This expression (and such variants as “the floggings will continue until morale improves”), which the Times calls “a well-known phrase that is printed and sold on T-shirts, usually accompanied by the skull and crossbones of a pirate flag,” may have originated in the U.S. Navy in the second half of the twentieth century. It has no special association with black people.
But is it possible that Oh’s language fed an anti-black stereotype even though none of the words she used is itself racist? Possibly yes: if it could be established that Oh employed such rhetoric only of black people—and, in particular, also of black people aside from those at the aclu to whom she reported. In the absence of such evidence, however, we need to ask ourselves what linguistic choice Oh had, given that her bosses were black. Surely she was entitled to say something, but if words like “afraid” and “reprimand” are off the table, what should she have said instead? Does the aclu believe that no one, or at least no one who isn’t black, may lodge a complaint against or otherwise speak ill of a black person?
I don’t know how the aclu would answer these questions, but according to the Times, the organization
has not retreated from its contention that [Oh’s] language was harmful to Black colleagues, even if her words were not explicitly racist.
Terence Dougherty, the [aclu’s] general counsel, said in an interview that standards of workplace conduct in 2024 have shifted, likening the case to someone who used the wrong pronouns in addressing a transgender colleague.
It is not encouraging to think that employees at the aclu, of all places, are so fragile that they believe their personal reactions to a caustic coworker’s linguistically normal expressions of frustration wipe out her civil liberties.
None of this is to excuse actual harassment, needless to say, whether by Oh or anyone else. But since Dougherty brings up the matter of pronouns and transgender rights, let me add that—for reasons I explain in an article published in these pages last year—I am deeply skeptical that either accidental misgendering or the refusal to engage in compelled speech by using pronouns in a certain way should be deemed a fireable offense any more than what Oh said to and about black people in early 2022.
Two common ways in which meanings of words change are metaphor and hyperbole. For example, some men are considered “studs”—because one or more speakers decided at one or more times in the past 130 years to expand the sense of a stallion used for breeding. And adverbs like “terribly” and “awfully,” which these days usually mean little more than “very,” demonstrate the universal tendency of people to exaggerate—with the result that the exaggeration becomes the norm and the connection to such still-potent words as “terror” and “awe” is lost.
There are countless examples of each process in every known language. They are at the core of all humans’ linguistic experience. Every last person who has come out swinging against Oh regularly uses metaphorical and hyperbolic words and expressions. And while some of these words and expressions may sound violent in one or the other context, they would not generally be so regarded by anyone without an axe to grind.
It is impossible not to mention the latest instance of simultaneously metaphorical and hyperbolic language in the news: Donald Trump’s use of “bloodbath” in a speech in Dayton last month, which the mainstream media willfully and grossly mischaracterized. In the words of Becket Adams in The Hill, many publications deliberately failed to report on Trump accurately “because getting it right is apparently not as important to some people as ‘getting’ the bad man running for president.” Of course, the more such elite malfeasance is exposed, the more likely it is that voters will return Trump to the White House.
I am tempted in conclusion to suggest that the increasingly common use of “he” for a biological female and of “she” for a biological male is itself an example of metaphor: as “stud” can be extended to cover a non-equine creature, so can “he” be extended to cover a non-male. Or perhaps this usage is actually hyperbole: a biological woman who goes by “he” and a biological man who goes by “she” might be said to be overstating the case for their sex and/or gender. However the shift is to be accounted for, it is worrying that the aclu appears to consider the one specific—and only terribly, awfully recently widespread but at the same time still very hotly contested—example of metaphor or hyperbole to be a linguistic mandate while other—far more established—examples are linguistically anathema.
According to its website, “The aclu has worked since 1920 to ensure that freedom of speech is protected for everyone.” Clearly this is untrue, for which reason alone the organization deserves to be chastised and reprimanded. Oh should not be afraid. May she and her lawyers beat the heck out of the aclu in court.