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Law and Philosophy

, Volume 14, Issue 2, pp 203–243 | Cite as

Rights in collision: A non-punitive, compensatory remedy for abusive speech

  • Diana Tietjens Meyers
Article

Keywords

Social Issue Compensatory Remedy 
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References

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    An important exception is speech that creates a “hostile environment” in the workplace and thus constitutes sexual harassment under the U.S. Supreme Court's interpretation of Title VII of the Civil Rights Act of 1964 (seeHarris v. Forklift Systems, Inc. (1993)). For interesting discussion of the possibility of adapting hostile environment theory to the issue of hate speech in academic settings, see Timothy Shiell, “Hate Speech Codes and Hostile Environment Law,”APA Newsletter on Philosophy and Law 92 (1993): 64–66.Google Scholar
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    An intriguing dimension of Mari Matsuda's discussion of hate speech that 1 do not have space to take up in detail is her claim that censorship of the most egregious forms of racist speech is justified because the wrongness of the doctrine of racial superiority is universally accepted. Mari Matsuda, “Public Response to Racist Speech: Considering the Victim's Story,” in Mari J. Matsuda et al., eds.Words That Wound (Boulder: Westview, 1993), p. 37. Obviously, her position cannot be that each and every person rejects the doctrine of racial superiority, since this is patently, though sadly, false. Rather, she speaks of the public positions that governments have enunciated on behalf of their nations, i.e., of the moral identities and values of societies. Interestingly, John Rawls's current account of the grounding of his principles of justice bears a striking resemblance to Matsuda's line of thought. For Rawls, the rights guaranteed by justice as fairness constitute the “kernel of an overlapping consensus” that articulates the “basic intuitive ideas found in the public culture of a constitutional democracy.” John Rawls, “Justice as Fairness: Political Not Metaphysical,”Philosophy and Public Affairs 14 (1985): 246; also Rawls,Political Liberalism, pp. 13–15, 175. Though I would argue that Rawls's interpretation of this public culture is much too legalistic and tradition-bound, I think that the idea of invoking the collective moral identity of one's society for purposes of defending novel moral claims is a promising strategy. See Meyers,Subjection and Subjectivity, pp. 157–62. On this view, inflicting certain harms and withholding certain benefits are serious injustices, for mistreating individuals in this way betrays the moral identity of a society.Google Scholar
  62. 72.
    I am indebted to Susan Brison, Judith Wagner DeCew, and Frederick Schauer for valuable comments on this project. Also, I presented this paper at the University of North Carolina at Greensboro, the Graduate School of the City University of New York, the State University of New York at Albany, and a meeting of Amintaphil, and I am grateful to the members of those audiences for their many helpful suggestions.Google Scholar

Copyright information

© Kluwer Academic Publishers 1995

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  • Diana Tietjens Meyers

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