Contesting “Address”: Conflicts Over the Words We Use to Address and Refer to Each Other

I. Introduction

Professor Richard Brooks’s Frankel Lecture explores the power of “address”—the words we use to address and refer to each other—to influence human interactions. “Forms of address are often used to initiate an exchange or to get someone’s attention,” he observes.^[1] “Speakers use address to single out specific individuals, who in turn direct their awareness of the address to its speaker.”^[2] In this way, address “instigate[s] a bilateral and mutual relationship between speakers and addressees.”^[3]

Address has the potential to connect us, to pull us closer together—and also to create distance, to push us apart. Through our choice of address, we can reduce friction, and we can create friction.

We can, and often do, choose to use the power of address in intentionally constructive ways. “Address is a bid to build and maintain rapport—a bridge connecting speaker and addressee[s],” Professor Brooks explains.^[4] “Achieving a requisite degree of interpersonal recognition is an essential function served by address for easing and facilitating cooperation in our daily lives.”^[5]

When used as lubricant, address can take the edge off of interactions that might otherwise feel confrontational. One can use address—even briefly—to communicate that I see you, I recognize you as being worthy of address, I recognize your humanity. This, in turn, can soften what follows this sort of address: “Folks, we’ve got the right of way,” when addressed to inattentive bikers on a crowded path, may feel a little more like a helpful suggestion and a little less like a command than address-free exhortations like, “Hey, we’ve got the right of way.”

To further illustrate the point, nicknames reflect a form of address that can demonstrate affection and denominate special relationships. When used in this way, nicknames work not just as lubricant but sometimes even like glue. Along these lines, then-President George W. Bush was well-known for his penchant for giving nicknames to journalists, politicians, and others that signaled the addressee’s membership in his inner circle.^[6] Conversely, some might experience the addresser’s choice not to address them with a nickname as distancing, maybe excluding.^[7]

Consider, as another example of address’s potential to push us apart as well as to pull us together, a speaker’s choice to refer to an addressee by their first name, which “may be an exercise of privilege or a demonstration of power.”^[8] On the other hand, that choice sometimes serves instead as a graceful act of inclusion, even elevation: I still recall how, very early in my career, an eminent First Amendment scholar whom I had never met sent me an email with the salutation “Dear Helen (if I may),” a form of address I experienced as a kind and welcome effort to reduce the gap between our accomplishments.

Professor Brooks’s project seeks to understand “the distinctive power of address,” its power to shape our conversations, our connections, and more.^[9] This Commentary examines the power of address to make us stop, turn, and engage—and the power of address to make meaning. My discussion here focuses primarily (but not only) on law, especially constitutional and antidiscrimination law. Even so, the impressive sweep of Professor Brooks’s work demonstrates how other disciplines like linguistics, sociology, history (and more) also help us make sense of the power of address.

II. The Power of Address to Make Us Stop and Turn

Professor Brooks alerts us to the power of address to make us stop in our tracks, to turn. This is “the first law of address,” he explains. “It is an extraordinary thing. Why anyone would acknowledge another’s authority to restrict their permissible actions with mere words?”^[10]

The role of address in human interactions is one so ubiquitous that it often remains unnoticed.^[11] And because I had yet to pay much attention to this dynamic myself, I confess that I initially wondered if Professor Brooks had overstated address’s power. So, I undertook an experiment after reading his draft: for a while I’d try not to respond when addressed. I’d try not to stop, not to turn, not to engage. I’d try to defy, and thus disprove, the first law of address.

I failed, quickly and completely. I couldn’t do it with my students and colleagues, I couldn’t do it with the check-out clerk at the grocery store or the receptionist at the veterinarian’s office. I couldn’t do it with folks I passed on a mountain trail.^[12]

I abandoned my experiment because it felt so uncomfortable, so rude and hurtful, to refuse to turn, to decline to respond and engage when addressed. No doubt some would have lasted longer than I did. At the same time, however, I doubt my experience is all that much of an outlier. As Professor Brooks reports, “I do not have a persuasive answer as to why people turn when address[ed]. I am only persuaded that they do turn more often than not when addressed and this regularity reveals the compelling force of address.”^[13]

In theory, we could resist or ignore address. But as a practical matter, as Professor Brooks (and my short-lived experiment) made clear to me, it’s not so easy to do so. Our behavior reveals the power of address: “We submit to the address power not through the force of habit or fear of physical force or other sanction (which are independent influences over our conduct) but because being addressed and responding to an address are essential aspects of our humanity.”^[14] And now that Professor Brooks has directed our gaze to the ubiquity and power of address, we can see it everywhere in our encounters with each other.

III. The Power of Address to Make Meaning

Professor Brooks proposes that address has constitutive power—in other words, that address can “[m]ak[e] a thing what it is.”^[15] Inspired by this insight, the bulk of this Commentary examines what I’ll call “address contests” or “address conflicts,” where individuals or communities disagree about appropriate forms of address because they disagree about address’s meaning-making. As we’ll see, in some address conflicts, the participants dispute whether the contested form of address actually makes meaning, or whether it instead should be understood as relatively trivial. In other address conflicts, the contestants agree that address makes meaning in important ways while disputing the appropriate choice of address because they seek to make very different meanings.

A. Address Conflicts Where the Parties Disagree About Whether Address Makes Meaning at All

As an illustration of address conflicts where some participants reject the idea that address makes meaning at all, consider some disputes involving gender-specific and gender-neutral forms of address. Start by recalling Justice Antonin Scalia’s disagreement with his long-time co-author Bryan Garner about the merit, or lack thereof, of gender-neutral references in legal writing.

Justice Scalia wrote that the “use of ‘he’ [is] the traditional, generic, unisex reference to a human being.”^[16] He continued, “To those of us who believe that ‘he’ means, and has always meant, ‘he or she’ when not referring to a male antecedent, the ritual shunning of it to avoid giving offense to gender-neutralizers is . . . well, distracting.”^[17] Justice Scalia thus declined to engage the idea that gendered forms of address reflect gendered understandings of the world, and thus declined to engage their meaning-making potential. Instead, he dismissed gender-inclusive forms of address as “distracting,” perhaps aesthetically displeasing. This sort of address, in his view, was no big deal.

In contrast, those who contest presumptively gender-specific forms of address—like using male pronouns when referring to those in a group of individuals that includes (or could include) both men and women—often do so because they experience that address as embedding traditional hierarchies in consequential ways.^[18] In response, they understand gender-inclusive forms of address to make meaning by challenging traditional ways of thinking, by enlarging our conception about the diversity of humans who do, or could, occupy various roles, including positions of power. As one example among many, at a time when only one woman had ever served on the Supreme Court while my law school class was evenly split between women and men, one of my law professors took care to refer to hypothetical Justices and judges as “she” and “her.” For at least some in my class, this invited us to imagine what might be, what the future of our profession might look like.

In the same vein, consider Eleanor Holmes Norton’s efforts to be referred to as “Chair”—rather than as “Chairman” or “Chairwoman”—when in 1977 she became the first woman to be appointed by the President to lead the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing federal laws prohibiting employment discrimination.^[19] Although her innovation met with some puzzlement,^[20] she largely succeeded in being addressed as “Chair”—and the EEOC’s website, as of this writing, identifies its leader as “Chair.”^[21] Norton’s determination to establish a gender-inclusive form of address for the agency’s head illustrates an addressee’s attempts to prevent her power from being undermined, intentionally or inadvertently, by others’ choice of how to address her.

Related examples include hard-fought struggles for courtesy titles like “Ms.” so that women, like men, could be addressed without reference to their marital status. Here, too, some dismissed the meaning-making power of these forms of address. For instance, a 1973 California appellate court rejected an equal protection challenge to California’s election law that then required women to be designated only as “Mrs.” or “Miss,” concluding that compliance with the state’s gender-specific requirement was “not onerous or burdensome. A woman is not disadvantaged in any way by such disclosure.”^[22] Today, an equal protection challenge to a governmental requirement that women, but not men, disclose their marital status would be subject to (and almost assuredly fail) the demands of intermediate scrutiny.^[23] And, today, “Ms.” is in widespread use as a form of address.^[24]

B. Address Conflicts Where the Parties Embrace Address’s Meaning-Making Power While Contesting the Meaning to Be Made

As discussed above, some address conflicts involve contestants who disagree about whether address actually shapes and orders our relationships and our behavior towards each other. Sometimes, however, the contestants agree that address performs an important meaning-making function while disagreeing about which meaning to make, and thus disagreeing about the appropriate choice of address.

Think of the very considered—and, for a time, deeply contested—choice of simply “President” for addressing the nation’s chief executive and commander-in-chief, detailed by historian Kathleen Bartoloni-Tuazon.^[25] In the spring of 1789, the first House and Senate engaged in three weeks of debate—the first-ever dispute between the branches of the newly bicameral Congress—over the appropriate way to address the President, an office that had never before existed.^[26] As Professor Bartoloni-Tuazon explains, “The controversy explored an important constitutional question: How much like a monarch should the head of a republic resemble, particularly in the United States, whose revolution aimed at weakening the executive?”^[27]

All participants in this dispute agreed that the choice of address communicated important meaning, even as they disagreed about what form of address best achieved that meaning. Some, like James Madison, associated titles with aristocracies and urged instead a “simple and unadorned” title for fear that the Presidency might otherwise acquire a monarch’s power and political unaccountability.^[28] (Recall too that the original, unamended Constitution imposed no term limits on the President, who was thus permitted to serve for as long as the Electoral College elected him).^[29]

But others, including John Adams, urged royal references like “Highness” and “Majesty,” among many others,^[30] with the aim of shoring up Presidential authority to enable the officeholder to withstand competing forces. Adams, for example, feared that the new federal government would be squashed by the pre-existing and quite powerful state governments, and others worried that the President would be overcome by the new Congress or by foreign dignitaries. So, they advocated for “exalted” titles to make the office “an ‘Object of Ambition’” for talented leaders, and to fortify the federal executive’s authority relative to that of the states and of Congress.^[31]

The congressional debate over the appropriate form of address for the President exemplifies a high-stakes address contest resolved through speech and politics: the House and Senate did not enact laws insisting on a particular form of address but instead passed resolutions encouraging particular forms of address.^[32] They ultimately rejected regal titles, resolving instead to simply refer to the leader of the executive branch as the “President of the United States,” the term used in the Constitution itself.^[33] Through this choice, the members of Congress sought to describe and understand the Presidency as an office consistent with both “democracy and strength.”^[34]

This decision was difficult in large part because the office of the Presidency itself was a deliberate break from, and challenge to, traditional practice.^[35] The inherited norms for addressing a different set of government officials, in contrast, leaned into tradition: the American practice of using “Your Honor” when addressing those in the judicial branch drew from English common law, where judges were referred to as “My Lord” or “Your Honor.”^[36] Lawyers’ use of “Your Honor” today continues to make meaning by highlighting the hierarchical nature of courtroom roles and the gravitas and seriousness of the judicial setting.^[37]

As we’ve seen, address conflicts are sometimes resolved (if they are resolved) through norms—in other words, through our common practices regarding the appropriate forms of address in various settings. But, as the next sections explore, other high-stakes address contests are instead resolved through legal challenge. Sometimes an addressee asserts a statutory or constitutional right to certain forms of address. And sometimes an addresser asserts a right of their own to address others as they choose.

C. Addressees’ Antidiscrimination Law Claims to Control How They Are Addressed

As Professor Brooks reminds us, “address also serves to regulate behavior. Here address says less about who or where you are, than how you ought to behave. Forms of address are not merely instances of civil or polite speech, they are also terms suggesting conduct, like scripts prescribing appropriate behavior.”^[38]

I agree. And under certain circumstances, especially where the listener (the addressee) has less power than the speaker (the addresser), we can also understand address as more of a command about how to behave, not just a suggestion.

In earlier work, I’ve examined certain settings in which government justifiably intervenes to protect comparatively vulnerable listeners from comparatively powerful speakers—and when I refer to “powerful speakers,” I mean those who, in the particular context at issue, have more information or power (or both) than their listeners.^[39] In most expressive interactions, we assume a symmetrical relationship where listeners unhappy with what the speaker is saying can protect themselves by simply walking away from the conversation or by engaging in counter speech of their own.^[40] But this assumption is not always accurate. Law sometimes intervenes to protect listeners who cannot protect themselves from harmful speech from comparatively powerful speakers through the traditional self-help remedies for unwelcome speech: exit and voice, avoidance and rebuttal. Think, for instance, of workers who aren’t free to escape or challenge the speech of their employers because they, and their families, depend on their jobs as a matter of financial survival.^[41]

In those settings, antidiscrimination law recognizes that speech sometimes rises to the level of illegal discriminatory conduct. Just as an employer alters the terms and conditions of employment in discriminatory ways by making the jobs of workers of color or women more miserable by assigning them offices without heat in the dead of winter, so too does an employer alter the terms and conditions of employment in discriminatory ways by making the jobs of workers of color and women more miserable by pelting them with racial or sexual slurs based on their protected class status.^[42] Consider, too, an employer’s statement of discriminatory preference through job advertisements like “White Applicants Only” or “Jobs of Interest to Men”: as the Supreme Court has explained, this speech declares certain opportunities as off limits to applicants of color or women in violation of antidiscrimination law.^[43]

These principles apply with equal force to comparatively powerful speakers’ address towards comparatively vulnerable targets.^[44] When sufficiently severe or pervasive to create a hostile work environment, discriminatory forms of address can alter the terms and conditions of employment in violation of antidiscrimination law. Professor Chan Tov McNamarah, for instance, has detailed the ways in which address that takes the form of “dishonorifics” (that is, “the practice of using terms of reference and address to convey the social inferiority of the referenced person or addressee”) can create conditions of illegal inequality in the workplace and elsewhere.^[45]

The Supreme Court specifically recognized address’s capacity to contribute to unlawful workplace discrimination in Ash v. Tyson.^[46] There, the Court held that a supervisor’s repeated use of “boy” when addressing Black workers could, under some circumstances, establish illegal job discrimination.^[47] Although the Ash Court offered very little explanation of its holding, Professor Brooks offers more fulsome discussion of the dynamics at work, describing the use of address to perpetuate racial subordination: “In the American South, in particular, it is commonly understood that when a white man addresses a black man as boy, the usual intention and effect is not simply or primarily a generic racial insult, but rather a specific effort to ‘put him in his place,’” he explains.^[48] “To say [boy in some circumstances] without worry of reprisal is an indication of one’s perceived dominance. To hear and see it go unchallenged today is to recognize a badge of subservience and subordination . . . .”^[49]

D. Addressees’ Constitutional Law Claims to Control How They Are Addressed by the Government

As Professor Brooks makes clear, it’s no easy thing to escape address, as the consequences of resisting address include retaliation by the speaker, and perhaps also addressees’ self-internalized guilt or shame.^[50] And sometimes resistance to address triggers punishment by the government: think, for instance, of Mary Hamilton, a Black woman, who was sentenced to five days in jail for challenging the government’s racially subordinating address.

Here’s what happened: in the early 1960s, an Alabama state trial judge held Ms. Hamilton in contempt of court when she refused to respond to a prosecutor’s racially discriminatory address while she was testifying at trial.^[51] More specifically, she refused to answer the prosecutor’s questions directed to her only by her first name, “Mary,” rather than “Miss Hamilton,” “stating that she would answer only when addressed respectfully”—that is, with the courtesy titles provided to white parties.^[52]

The U.S. Supreme Court reversed the contempt order and jail sentence without explanation, simply citing a recent opinion in which it had held that a courtroom’s racially segregated seating violated the Equal Protection Clause.^[53] Here I’ll suggest the explanation that the Court failed to provide: just as nongovernmental speakers’ address sometimes violates statutory antidiscrimination law (as we saw, for instance, in the employment context^[54]), so too can governmental speakers’ address sometimes violate constitutional rights.

On top of the natural power of any speaker’s address,^[55] address by government speakers can be more powerful still, especially when backed by the government’s coercive potential or its monopoly access to certain information or resources.^[56] Indeed, the government’s speech more generally can violate the Constitution in a small but important universe of cases, including those where the government’s speech changes its targets’ choices and opportunities to their disadvantage in ways that would violate a specific constitutional provision if the government accomplished those same changes through its regulatory action.^[57] Examples include the government’s threats that silence dissenters as effectively as jailing them, thus violating the Free Speech Clause.^[58] Or the government’s prayer or other religious speech to kids in public schools under circumstances where psychological pressure can coerce vulnerable young people’s religious practice, thus violating the Establishment Clause.^[59] Or law enforcement officers’ lies to a parent that her child will be taken from her unless she waives her constitutional rights and talks to the police immediately and without an attorney, thus violating the Due Process Clause.^[60]

These principles apply with equal force to the government’s speech that takes the form of address.

With this background in mind, we return to Ms. Hamilton’s case. There, the state judicial system’s determination to enforce racially discriminatory forms of address punished and deterred Black persons’ participation in the legal process, thus causing harm that violated the Equal Protection Clause. Moreover, the government’s reason for such discriminatory address seems unexplainable by anything other than racial animus, a motivation that “cannot constitute a legitimate governmental interest.”^[61]

Ms. Hamilton resisted racially discriminatory address because she understood that address to have meaning-making power.^[62] On the other hand, the record doesn’t explain why the prosecutor refused to honor her insistence on equally respectful address, much less why the trial court judge punished her for resisting address with five days in jail.^[63] But it’s hard not to believe that they too understood the meaning—making power of that address and deliberately sought to use address to perpetuate traditional racial hierarchies.^[64]

Two interesting asides to Ms. Hamilton’s case:

First, a magazine addressed to Hamilton in 1961 with the title of “Ms.” (perhaps a typographical error) inspired her then-roommate, Sheila Michaels, to begin the ultimately successful campaign for the use of “Ms.” as an alternative title for women.^[65]

Second, the government’s racially subordinating address played a role in another case from Alabama decided by the Supreme Court the very same month (March 1964) that it decided Ms. Hamilton’s case. New York Times v. Sullivan required the Court to consider the appropriate First Amendment analysis to be applied to a defamation suit brought by a local police chief against a group of ministers involved in the civil rights movement and the New York Times.^[66] There, the challenger claimed that the group’s fundraising advertisement—published by the Times—that recounted civil rights protesters’ experiences with Alabama law enforcement contained several reputation-damaging inaccuracies (inaccuracies that many would find nonmaterial to reputation, especially since the chief was not named in the advertisement).^[67] This lawsuit was among a series of weaponized defamation lawsuits brought by state officials in hopes of driving civil rights advocates—along with journalists covering the civil rights movement—out of Alabama.^[68]

There, the lower court judge presided over a trial riddled by a range of race-based discrimination, including but not limited to racially discriminatory forms of address.^[69] As legal scholar Mary-Rose Papandrea relates, “the stenographer referred to the white lawyers as ‘Mr. Nachman’ and ‘Mr. Embry,’ but referred to black lawyers as ‘Lawyer Gray’ and ‘Lawyer Crawford.’ From the bench, Judge Jones also refused to use the honorific ‘Mr.’ to refer to the black lawyers.”^[70] The jury awarded the police chief a $500,000 damages award—at that time the largest in Alabama’s history.^[71]

The Supreme Court reversed that judgment, and its merits decision has long been celebrated as a resounding victory for free speech, interpreting the First Amendment to require that public officials seeking to hold a speaker liable for allegedly defamatory criticism prove the speaker’s “actual malice”—i.e., that the speaker knew the statements were false or consciously disregarded their potential falsity.^[72] In so holding, the Court articulated “the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”^[73]

Normally, of course, the Court would simply remand the case for a new trial in state court under this new standard, with the jury instructed on the need to find actual malice as a condition of imposing damages for defamatory speech consistent with the First Amendment.^[74] But the trial proceedings below left the Justices fearing “that at a new trial Judge Jones would be able to twist the rule and the results would be the same—a heavy punitive fine against the Times and the ministers.”^[75] To avert this outcome, the Court instead itself reviewed the evidence introduced at trial, concluding that because that evidence “lack[ed] the convincing clarity” required by the new actual malice standard, “it would not constitutionally sustain the judgment for respondent under the proper rule of law.”^[76] Many suspect that the Court’s awareness of what had happened in the trial judge’s courtroom—including, but by no means limited to, the use of racially discriminatory address—left it wary about the fairness of the original trial and thus reluctant to return the matter to that court for a new trial.^[77]

E. Addressers’ First Amendment Claims to Control How They Address Others

As we’ve seen, address conflicts sometimes require courts to consider targets’ (that is, addressees’) invocation of statutory or constitutional protections to control how they are addressed. And because address is a form of speech, address conflicts sometimes also require courts to consider speakers’ (that is, addressers’) claim of a First Amendment right to control how they address others.^[78]

We currently see these sorts of conflicts in a wide range of contemporary controversies over misgendering—for example, the deliberate use of male pronouns, names, or titles to address a target whose gender identity is female.^[79] Illustrations include employers that assert First Amendment defenses to antidiscrimination claims brought by workers targeted by misgendering, as well as public school teachers who bring First Amendment challenges when disciplined for misgendering students in violation of school policy.^[80]

More specifically, some workers or students targeted for misgendering assert that they are being treated differently in ways that change the terms and conditions of their employment or that interfere with their learning—in other words, they describe misgendering as a form of verbal harassment that can create a hostile environment in violation of statutory antidiscrimination law.^[81] And in response, some speakers sued or disciplined for misgendering argue that law protects their choice of address (including names, pronouns, titles, and honorifics) from the government’s regulation. These actors sometimes assert constitutional claims under the Free Speech Clause, and sometimes they assert religious discrimination claims under Title VII or the First Amendment’s Free Exercise Clause.^[82]

Some speakers in these address conflicts reject the idea that misgendering makes meaning in any but trivial ways.^[83] But often the parties instead agree that address of this type actually makes meaning in important ways—while vigorously disagreeing over what that meaning should be.^[84] As the Sixth Circuit observed:

The pleadings in this case, in fact, underscore that perhaps the single thing on which the parties agree is that pronouns matter. That is true for transgender students in the District, who experience the use of preferred pronouns as a vital part of affirming their existence and experience the use of non-preferred pronouns as dehumanizing, degrading, and humiliating. It is also true for [the challengers, who] aver that using pronouns inconsistent with a person’s biological sex at birth contradicts their “deeply held beliefs” about the immutability of sex.^[85]

How, over time, might courts come to resolve these sorts of conflicts between speakers and targets—more specifically, these sorts of conflicts between addressers and addressees?

One approach draws from the work of legal scholar Kent Greenawalt, who identified a universe of what he called “situation-altering” speech that falls outside of the First Amendment’s protection because it does something rather than just says something.^[86] Under this view, “communications whose dominant purpose is to accomplish something rather than to say something are not reached by a principle of free speech or are reached much less strongly than are ordinary claims of fact and value.”^[87] Expression’s capacity to do something, rather than just say something, often increases with the power of the speaker relative to their target.^[88]

As discussed above, the Supreme Court has explained that employers’ speech sometimes enables workplace discrimination, as is the case of verbal harassment that alters the terms and conditions of employment, or statements of discriminatory preference like “White Applicants Only.”^[89] The Court understands the application of antidiscrimination law in these settings as the government’s “permissible content-neutral regulation of conduct” that poses no First Amendment problem.^[90] More specifically, “[w]here the government does not target [discriminatory] conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.”^[91]

To use Professor Greenawalt’s vocabulary, the Court treats this discrimination-enabling speech as doing something, not just saying something. Courts’ resolution of address conflicts involving misgendering may similarly turn on whether and when courts understand this form of address to do something, and not just say something.

IV. Conclusion

Professor Brooks’s powerful and generative insights provide us with valuable tools for recognizing, and trying to make sense of, address’s role in human interactions. That address has the potential both to offer value and to inflict harm in our encounters with each other, which sometimes triggers conflict over appropriate forms of address. Here I’ve sketched a few of those conflicts.

As we’ve seen, some address contests involve debates over whether and when address actually makes meaning, while others involve participants who agree that address makes meaning but disagree over what meaning should be made. And address conflicts are sometimes resolved (if they are resolved) through social practice (perhaps aided by design choices) or through law.^[92]

Legal efforts to resolve address conflicts sometimes involve addressees’ legal claim to control how they are addressed, and sometimes also involve addressers’ legal claim to control how they address others. Courts’ resolution of these address conflicts may well turn on whether and when they understand the contested address to do something, and not just say something.