Abstract
McGowan argues “that ordinary utterances routinely enact norms without the speaker having or exercising any special authority” and thereby not “merely cause” but “constitute” harm if harm results from adherence to the enacted norms. The discovery of this “previously overlooked mechanism,” she claims, provides a potential justification for “further speech regulation.” Her argument is unsuccessful. She merely redefines concepts like “harm constitution” and “norm enactment” and fails to explain why speech that “constitutes” harm is legally or morally problematic and thus an initially more plausible target for speech regulation than speech that “merely causes” harm. Even if she could explain that, however, her account would still be incapable of identifying cases where utterances “constitute harm.” This is so for two reasons. First, she provides neither analytical nor empirical criteria for deciding which (if any) so-called “s-norms” have been enacted by an “ordinary utterance.” Second, even if such criteria could be provided, there is no epistemically available means to distinguish whether harm has ensued due to adherence to the enacted s-norms or through other mechanisms (like “mere causation”). Given this lack of criteria and practical applicability, there is no way that this account could serve as a principled basis for speech regulation – it could only serve as a pretext for arbitrary censorship.
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Notes
All page numbers in brackets refer to McGowan (2019) unless otherwise indicated.
“Harm constitution is … a distinct way of causing harm” (2, see also 23).
Some might insist that discrimination itself is a harm. But how? Does it, by itself, set back interests? Would it not rather be irrational to have an interest in not being discriminated against as such? For example, if the dance club I am denied access to on grounds of my skin color is going to be blown up a few minutes later, then the discrimination benefited me. Rationally, we have an interest in not being discriminated against to the extent that such discrimination harms our interests. To have an interest in not being discriminated against as such appears fetishistic. Be that as it may, my argument in the main body of the text does not rely on this account of discrimination.
McGowan states that “the correctness of a definition depends on the purpose of the definition” (126). She also says that “the common goal” – that is, purpose – of language use is “successful communication” (11). She also admits: “Clearly ‘constitution’ is here being used in a special technical sense. It does not mean what it means in other philosophical contexts.” (24) These statements taken together suggest that her definition of “constitution” is incorrect. It might serve the different purpose, though, of making her claims (as allegedly opposed to claims regarding “mere causation”) sound more original and less in need of empirical validation than they actually are.
Another confusion is apparent when McGowan claims (129–130) that her analysis of “harm constitution” can help to vindicate Catharine MacKinnon’s and Rae Langton’s claims that pornography constitutes harm. Yet these two authors, unlike McGowan, use the expression “constitutes harm” in the ordinary sense. In other words, even if McGowan could show that pornography constitutes harm in her sense, this would not yet show that it constitutes harm in their (ordinary) sense.
For McGowan’s wide sense of norm enactment (and indeed enactment more generally), see Sect. 1.6 and Sect. 2 in her book.
For instance, she simply equates, contrary to ordinary usage, “enacting” with “making true” (21–23).
I do not deny that sometimes we are able to identify g-norms discriminating against certain groups of people (especially if, as has happened historically, they are enshrined in law). However, in my society (as a whole – there are always dissenting subgroups) norms discriminating against woman are – as legal texts, political statements, and public discussions make abundantly clear – rejected, not endorsed. I have a theory, however, why some people think otherwise. They labor under the assumption that every outcome inequality must be explained by the operation of discriminatory norms. That assumption is invalid, though. See on this issue, not least in the context of the debate on free speech, Lukianoff and Haidt (2018, esp. ch. 11).
I doubt that the answer “I knocked the bitch out” would have been taken as “degrading women” if given by Betty to Jill’s question how the boxing match went last night. We should perhaps also not forget that some women actually are “bitches,” namely terrible female persons, just as some men are “dicks” (terrible male persons). Pointing this out and using these terms accordingly degrades neither women nor men.
Incidentally, as one commentator notes, a previous formulation of her Steve example left McGowan “open to a charge of class prejudice.” See Simpson (2013, 9, n. 5). McGowan’s “progress” seems to consist in now choosing a formulation and interpretation that does not merely suspect working class men of misogyny but generalizes this suspicion to all men.
“[S]peeches arguing that women should be second-class citizens might persuade some who hear them or hear about them, but they may well galvanize greater numbers to oppose those views, and to work against them.” Strossen (1995–1996, 710). Obviously, this opposition might immediately occur in the conversation itself.
Expectations actually aren’t actions.
McGowan claims that “the fact that women are already oppressed in society at large does not undermine the claim that Steve’s utterance enacts an oppressive s-norm” (115). Sure, but it makes it likely that the larger g-norms are followed and that probably nobody cares what specific s-norms Steve enacts. In any case, for her argument to succeed, she has to show that it is Steve’s s-norm that is being followed. McGowan also considers the objection that the oppressive s-norm might already be operative in the conversation and that therefore “it may seem that Steve’s utterance cannot enact that s-norm exactly because … it had already been enacted.” Her reply is that “all social constructions (not just permissibility facts) need to be re-enacted in order to obtain. … Since his [Steve’s] utterance is part of what makes it the case that the permissibility fact in question is regarded as obtaining at that time, his utterance enacts that fact at that time” (116). Actually, the C.E.O. need not re-enact his enactment of his hiring policy again the next day for this to remain the enacted hiring policy. And even if, as already noted above, the employees would entirely ignore that policy, it would still be the policy enacted. In short, McGowan is conflating here the enactment of a norm with its social effectiveness. This conflation does not help to reduce the amount of evidence required, though. Now one would need the evidence regarding “collective recognition” (116) already to establish whether Steve has enacted a norm in the first place. (And Steve would also still have to satisfy the additional recognition-independent conditions of norm-enactment, for just as the C.E.O, he has not actually enacted a norm only because hearers take him as having done so. Hearers can be mistaken.).
She repeats this claim, in different words (162). She does not provide any evidence to back it up.
The locus classicus is Joel Feinberg’s (1988) aptly titled Harmless Wrongdoing. The distinction between wronging (violating a right), wrongdoing (acting illegally or immorally), and harming (setting back an interest) is standard in legal scholarship and ethics.
McGowan acknowledges these provisos (162).
This also means that McGowan’s further claim that Steve’s utterance is not only harmful but oppressive (112) is mistaken, for she offers the following definition: “Permissibility facts are oppressive if they unjustly disadvantage a person in virtue of that person’s membership in a socially marked group and the group in question is systematically and unfairly disadvantaged in the relevant social context in virtue of that membership.” (106) Yet in much of legal scholarship and ethics “unjust” means rights-violating (if she means something else, it is incumbent on her to clarify what that is and that we are faced with it here). Yet there is no rights violation.
The National Association for the Advancement of Colored People (NAACP) field organizer Charles Evers, quoted from Strossen (2018, 63).
In a footnote (176, n. 44), McGowan, after having talked about utterances that allegedly “constitute … legally actionable harm,” responds to Andrew Koppelman’s (2013, 771) observation (directed at an earlier text of hers) that “speech can’t be deemed unprotected whenever it has bad effects on the opportunities of minorities” by stating: “I reject ‘bad effects’ as an adequate gloss. I also reject much of what else he says in his 2013.” She can “reject” this all she wants; such rejection does not amount to an argument to the objection that not all bad effects or harms, not even if they come in the form of what she chooses to call “discrimination,” justify restrictions of the acts that cause them, “constitutively” or not. (Note also that she cannot convincingly reject “bad effects” as a synonym of “harm” given that she has failed to clarify what she means by “harm” in the first place.) Even more unsatisfactory than the dismissive footnote itself is the fact that it is, as far as I can see, the only place in her book where she condescends to at least acknowledge the objection.
Unless we have a special justification under exceptional circumstances, such as a self-defense or lesser evil justification.
In his review of the book co-edited by Maitra and McGowan, Koppelman (2013) complains about a peculiar unwillingness of the critics of free speech gathered there to actually engage free speech theory. The cursory discussion McGowan now dedicates to free speech theory does not really indicate that this unwillingness has been overcome.
The talk of “rights as trumps” stems from Dworkin (1978, xi and 365–367).
It is my impression that radical free speech critics generally have enormous difficulties distinguishing the right to free speech from its value (unless they are deliberately conflating the two), which explains many of their confusions – for example their idea that appeals to severe harms might be sufficient to restrict or override the right.
See note 15 and the main text belonging to it.
There are special provisions having to do with the functioning of the state itself, like, for instance, prohibitions of perjury in court proceedings. We can set these special issues aside here.
Of course, there are sometimes lesser evil justifications for overriding a right – the overridden right is then still there, but justifiably violated or infringed. Such justifications can only hold in exceptional circumstances, like a state of emergency, and cannot serve as the basis of speech regulations within the confines of the normal democratic process. For a discussion of the lesser evil justification, see Steinhoff (2020, Sects. 4.1 and 4.2).
Two additional conditions legitimate speech restrictions have to fulfill is that the regulations be formulated precisely enough and are not “somehow inadequate,” for example by being ineffective, harmful themselves, or too costly (162–163).
McGowan claims that there have been cases that point to the legal possibility of holding establishments liable for the racist statements even of patrons (179–180). Putting aside the question as to the wisdom of such decisions, that still doesn’t make those racist statements themselves or those who utter them direct targets of legal action and liability. This is confirmed by her own remarks regarding vicarious liability (181–182).
See for instance Brown v. Board of Education, Heart of Atlanta Motel, Inc. v. United States, or Browder v. Gayle.
As an aside, while McGowan claims that her parity argument is based on “a clear understanding of … U.S. free speech doctrine” (157), her repeated use of “public” here invites some doubts on whether she appreciates that a public bus is not necessarily what First Amendment law calls a “public forum.” The bus would at best be a limited public forum (see on these concepts https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum). Moreover, allow me to offer my own parity argument (based on my own understanding of First Amendment law and email conversations with several First Amendment scholars on this issue). If the “elderly white man” himself held up a “Whites Only” sign in the bus (instead of the bus company hanging it there), this act of his would be protected speech under First Amendment law (unless it caused a disturbance/breech of the peace). If the bus is owned by a private company (not by the government), the bus driver could probably, depending on the company’s regulations, ask the man to leave or put down the sign. Could the bus driver be required (under Equal Protection clauses) to ask the man to leave or put down the sign, so that otherwise the company could be sued by a disgruntled passenger? Perhaps, but then it would be the company’s omission that is actionable, not the white man’s action in and of itself. (I say “perhaps” because cases which indicate this possibility are, as McGowan knows – see 177, n. 45 – “extremely rare”; and while she might “regard them as a step in the right direction …, others cite these cases as a reductio of hostile environment law in general.” Indeed.) Thus, if the elderly white man’s speech is on a par with holding up a “White’s Only” sign, then his act is legally permissible.
A curious remark of hers appears to be implicitly directed against worries about vagueness, overregulation, and arbitrariness. To wit, she claims that it is also “extremely difficult … to distinguish between a wife venting about her husband and the verbal crime of hiring an assassin but this [is] no reason to fail to regulate criminal solicitation” (182). I never had such difficulties. If she does, however, it is truly remarkable that on the other hand she has no difficulties to attribute to Steve the “enactment” of all kinds of “s-norms” she dislikes. This discrepancy shows that the worries about vagueness, overregulation, and arbitrariness are well founded. In fact, it would appear that it is not difficult at all to distinguish between venting steam and hiring an assassin, while it is impossible to identify the “s-norms” Steve has “enacted.”.
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Steinhoff, U. Really Just Words: Against McGowan’s Arguments for Further Speech Regulation. Philosophia 50, 1455–1477 (2022). https://doi.org/10.1007/s11406-022-00471-6
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DOI: https://doi.org/10.1007/s11406-022-00471-6