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


Social Issue Compensatory Remedy 
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  1. 1.
    See both Martha Minow,Making All the Difference (Ithaca: Cornell University Press, 1990) and Iris Marion Young,Justice and the Politics of Difference (Princeton: Princeton University Press, 1990).Google Scholar
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    See Adrian M. S. Piper, “Higher-Order Discrimination,” in Owen Flanagan and Amelie Oksenberg Rorty, eds.,Identity, Character, and Morality (Cambridge: MIT Press, 1990); and Charles R. Lawrence III, “If He Hollers Let Him Go: Regulating Hate Speech on Campus,” in Mari J. Matsuda et al., eds.,Words That Wound (Boulder: Westview, 1993), p. 77.Google Scholar
  3. 3.
    Rejection of rights is a minority view among feminists. See Marilyn Friedman,What Are Friends For? (Ithaca: Cornell University Press, 1993), pp. 127–34, for an argument that women should not jettison rights.Google Scholar
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    Patricia Williams,The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991), pp. 153–54, 164.Google Scholar
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    Ibid., p. 158; for related discussion see Joel Feinberg, “The Nature and Value of Rights,”Journal of Value Inquiry 4 (1970): 243–60.Google Scholar
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    See Adrian M. S. Piper, “Impartiality, Compassion, and Modal Imagination,”Ethics 101 (1991): 735–37; also my “Moral Reflection: Beyond Impartial Reason,”Hypatia 8 (1993): 24–26, and mySubjection and Subjectivity: Psychoanalytic Feminism and Moral Philosophy (New York: Routledge, 1994), pp. 32–33. For related discussion of the dependency of theory on practice, see Susan J. Brison, “The Theoretical Importance of Practice,” in Judith Wagner DeCew and Ian Shapiro, eds.,NOMOS XXXVII: Theory and Practice (New York: NYU Press, 1994); for assessment of the relative merits of studying social scientific reports versus engaging emotionally with another's subjectivity, see Sandra Lee Bartky, “Sympathy, and Solidarity: On a Tightrope with Sheler,” in Diana Tietjens Meyers, ed.,Feminists Rethink the Self (Boulder: Westview Press, forthcoming).Google Scholar
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    Maria C. Lugones and Elizabeth V. Spelman, “Have We Got a Theory for You! Feminist Theory, Cultural Imperialism and the Demand for ‘The Woman's Voice,’” in Marilyn Pearsall, ed.,Women and Values (Belmont, Cal.: Wadsworth, 1986).Google Scholar
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    For related discussion, see Frederick Schauer, “The Phenomenology of Speech and Harm,”Ethics 103 (1993): 640–49.Google Scholar
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    For a detailed inventory of these harms, see Richard Delgado, “Words That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling,” in Matsuda et al., eds.,Words That Wound, pp. 90–93.Google Scholar
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    Judith Jarvis Thomson,The Realm of Rights (Cambridge: Harvard University Press, 1990), p. 253.Google Scholar
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  41. 45.
    2 W.W.R. 577 (Can.).Google Scholar
  42. 46.
    For evidence that it has already led to repressive measures see Henry Louis Gates Jr., “Let Them Talk,”The New Republic 209 (Sept. 20 and 27, 1993): 44.Google Scholar
  43. 47.
    Indeed, there may be growing resistance to campus speech codes. According to Ann Cudd, the state of California has passed legislation affirming that people on college and university campuses have the same speech rights as people in any public place. Ann Cudd, “When Sexual Harassment is Protected Speech,” unpublished manuscript delivered at the Conference on Feminist Ethics and Social Policy, University of Pittsburgh, November 1993.Google Scholar
  44. 48.
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    Lawrence, “If He Hollers Let Him Go,” p. 68; for an account of culturally normative prejudice, see Meyers,Subjection and Subjectivity, pp. 51–56.Google Scholar
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    John Rawls,Political Liberalism (New York: Columbia University Press, 1993), pp. 5–6; also see Rawls,A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 250.Google Scholar
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  54. 62.
    George Sher, “Rights Violations and Injustices: Can We Always Avoid Trade-Offs?”Ethics 94 (1984): 212–24; for helpful discussion of different approaches to weighting rights, see Judith Wagner DeCew, “Moral Rights: Conflicts and Valid Claims,”Philosophical Studies 54 (1988): 63–86.Google Scholar
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    Robert Nozick,Anarchy, State, and Utopia (New York: Basic Books, 1974).Google Scholar
  56. 64.
    Diana Tietjens Meyers,Inalienable Rights: A Defense (New York: Columbia University Press, 1985), pp. 68–71.Google Scholar
  57. 65.
    For discussion of the role of empathy in defending redistributive taxation, see Meyers, “Moral Reflection: Beyond Impartial Reason”: 27–31.Google Scholar
  58. 66.
    Diana Tietjens Meyers, “A Sketch of a Rights Taxonomy,” in Kenneth Kipnis and Diana T. Meyers, eds.,Economic Justice: Private Rights and Public Responsibilities (Totowa, N.J.: Rowman & Allanheld, 1985), pp. 92–93.Google Scholar
  59. 67.
    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
  60. 68.
    For discussion of the abuse of rights, see Frederick Schauer, “Can Rights Be Abused?”The Philosophical Quarterly 31 (1981): 225–30; and Schauer,Free Speech: A Philosophical Enquiry, pp. 145–48.Google Scholar
  61. 71.
    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

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© Kluwer Academic Publishers 1995

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  • Diana Tietjens Meyers

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