We defend the view of some feminist writers that the notion of silencing has to be taken seriously in discussions of free speech. We assume that what ought to be meant by ‘speech’, in the context ‘free speech’, is whatever it is that a correct justification of the right to free speech justifies one in protecting. And we argue that what one ought to mean includes illocution, in the sense of J.L. Austin.

This chapter examines the role played by derogatory terms (e.g., ‘inyenzi’ or cockroach, ‘inzoka’ or snake) in laying the social groundwork for the genocide of the Tutsi in Rwanda in 1994. The genocide was preceded by an increase in the use of anti-Tutsi derogatory terms among the Hutu. As these linguistic practices evolved, the terms became more openly and directly aimed at Tutsi. Then, during the 100 days of the genocide, derogatory terms and coded euphemisms were used to direct killers (...) to their victims. Understanding these speech acts helps to illuminate the important ways that power is enacted through discourse, how speech acts can prepare the way for physical and material acts, and how speech generates permissions for actions hitherto uncountenanced. Studying the role of speech acts and linguistic practices in laying the groundwork of the genocide illuminates how patterns of speech acts become linguistic practices that constitute permissibility conditions for non-linguistic behaviors. Further, the analysis presented here helps to make sense of the view that a steady, deep, and widespread derogation of a group can be part and parcel of genocide, not only an antecedent to it. (shrink)

I here present two different models of oppressive speech. My interest is not in how speech can cause oppression, but in how speech can actually be an act of oppression. As we shall see, a particular type of speech act, the exercitive, enacts permissibility facts. Since oppressive speech enacts permissibility facts that oppress, speech must be exercitive in order for it to be an act of oppression. In what follows, I distinguish between two sorts of exercitive speech acts (the standard (...) exercitive and the covert exercitive) and I argue that each such exercitive affords a distinct model of oppressive speech. (shrink)

Pornography deserves special protections, it is often said, because it qualifies as speech. Therefore, no matter what we think of its content, we must afford it the protections that we extend to most speech, but don’t extend to other actions.1 In response, Jennifer Hornsby and Rae Langton have argued that the case is not so simple: one of the harms of pornography, they claim, is that it silences women’s speech, thereby preventing women from deriving from speech the very benefits that (...) warranted the special protections in the first place.2 At first glance, it is hard to see how to make sense of this response. If the claim is that pornography prevents women from actually uttering words, then it just seems false; on the other hand, if that isn’t the claim, then it isn’t clear how anyone can be said to be silenced. Faced with such worries, many have been inclined to dismiss these claims about silencing as confused. (shrink)

The issue of hate speech has received significant attention from legal scholars and philosophers alike. But the vast majority of this attention has been focused on presenting and critically evaluating arguments for and against hate speech bans as opposed to the prior task of conceptually analysing the term ‘hate speech’ itself. This two-part article aims to put right that imbalance. It goes beyond legal texts and judgements and beyond the legal concept hate speech in an attempt to understand the general (...) concept hate speech. And it does so using a range of well-known methods of conceptual analysis that are distinctive of analytic philosophy. One of its main aims is to explode the myth that emotions, feelings, or attitudes of hate or hatred are part of the essential nature of hate speech. It also argues that hate speech is best conceived as a family resemblances concept. One important implication is that when looking at the full range of ways of combating hate speech, including but not limited to the use of criminal law, there is every reason to embrace an understanding of hate speech as a heterogeneous collection of expressive phenomena. Another is that it would be unsound to reject hate speech laws on the premise that they are effectively in the business of criminalising emotions, feelings, or attitudes of hate or hatred. (shrink)

This paper criticizes Langton's speech act account of MacKinnon's claim about (the subordinating force of) pornography and offers a different account of how speech might enact harmful norms and thus constitute harm.

The issue of hate speech has received significant attention from legal scholars and philosophers alike. But the vast majority of this attention has been focused on presenting and critically evaluating arguments for and against hate speech bans as opposed to the prior task of conceptually analysing the term ‘hate speech’ itself. This two-part article aims to put right that imbalance. It goes beyond legal texts and judgements and beyond the legal concept hate speech in an attempt to understand the general (...) concept hate speech. And it does so using a range of well-known methods of conceptual analysis that are distinctive of analytic philosophy. One of its main aims is to explode the myth that emotions, feelings, or attitudes of hate or hatred are part of the essential nature of hate speech. It also argues that hate speech is best conceived as a family resemblances concept. One important implication is that when looking at the full range of ways of combating hate speech, including but not limited to the use of criminal law, there is every reason to embrace an understanding of hate speech as a heterogeneous collection of expressive phenomena. Another is that it would be unsound to reject hate speech laws on the premise that they are effectively in the business of criminalising emotions, feelings, or attitudes of hate or hatred. (shrink)

It is widely held that free speech is a distinctive and privileged social kind. But what is free speech? In particular, is there any unified phenomenon that is both free speech and which is worthy of the special value traditionally attached to free speech? We argue that a descendent of the classic Millian justification of free speech is in fact a justification of a more general social condition; and, via an argument that 'free speech' names whatever natural social kind is (...) justified by the best arguments, that free speech is therefore this more general condition. This condition involves not merely the orthodox freedom (in some sense) of speakers to distribute words, but also two less frequently acknowledged dimensions of free speech: audience understanding and consideration. We conclude with some discussion of the policy implications of this conception of free speech. (shrink)

This paper argues that racist speech in public places ought to be regulable even with teh strict free speech protections of the First Amendment. McGowan argues that the same justification for regulating the hanging of a 'Whites Only' sign applies to racist utterances in public spaces.

In this article I analyse two complaints of white vilification, which are increasingly occurring in Australia. I argue that, though the complainants (and white people generally) are not harmed by such racialized speech, the complainants in fact harm Australians of colour through these utterances. These complaints can both cause and constitute at least two forms of epistemic injustice (willful hermeneutical ignorance and comparative credibility excess). Further, I argue that the complaints are grounded in a dual misrecognition: the complainants misrecognize themselves (...) in their own privileged racial specificity, and they misrecognize others in their own marginal racial specificity. Such misrecognition preserves the cultural imperialism of Australia’s dominant social imaginary—a means of oppression that perpetuates epistemic insensitivity.Bringing this dual misrecognition to light best captures the indignity that is suffered by the victims of the aforementioned epistemic injustices. I argue that it is only when we truly recognize difference in its own terms, shifting the dominant social imaginary, that “mainstream Australians”can do their part in bringing about a just society. (shrink)

Many liberal societies are deeply committed to freedom of speech. This commitment is so entrenched that when it seems to come into conflict with other commitments (e.g., gender equality), it is often argued that the commitment to speech must trump the other commitments. In this paper, we argue that a proper understanding of our commitment to free speech requires being clear about what should count as speech for these purposes. On the approach we defend, should get a special, technical sense, (...) different from its ordinary sense. We offer a partial characterization of this technical sense. Finally, we argue that if certain theorists (e.g., MacKinnon) are right about what (some) pornography does, then it should fall outside the scope of the free-speech principle. If so, then contrary to first appearances, pornography may not be a case in which our commitments to freedom and gender equality come into conflict. (shrink)

Although others have focused on Catharine MacKinnon's claim that pornography subordinates and silences women, I here focus on her claim that pornography constructs women's nature and that this construction is, in some sense, false. Since it is unclear how pornography, as speech, can construct facts and how constructed facts can nevertheless be false, MacKinnon's claim requires elucidation. Appealing to speech act theory, I introduce an analysis of the erroneous verdictive and use it to make sense of MacKinnon's constructionist claims. I (...) also show that the erroneous verdictive is of more general interest. (shrink)

Much of the most influential free speech scholarship emphasises that ‘political speech’ warrants the very highest standards of protection because of its centrality to self-governance. This central idea mitigates against efforts to justify the regulation of political speech and renders some egregiously offensive or harmful speech worthy of protection from a theoretical perspective. Yet paradoxically, in practice, in many liberal democracies such speech is routinely restricted. In this paper, I develop an argument that is compatible with both the argument from (...) democracy and the notion of political speech, and that can justify the regulation of hate speech, by joining an understanding of the constitutive role of speech in individuals’ lives derived from Nussbaum's capabilities theory with ideas of democratic deliberation and legitimation drawn from a Habermasian framework. This approach attends to the conditions required at an individual level for democratic legitimation to occur at a social level. It permits the development of a robust theoretical justification for the protection of a broad range of speech. It simultaneously provides a guiding framework for regulatory policy designed to ameliorate the effects of, and inhibit the expression of, that speech, which could imperil the conditions required for individuals to develop their own capabilities and which instantiates anti-democratic practice, and thus discourse, preventing the very communications required to perform democracy from being uttered. Thus, my argument also strengthens and transforms the argument from democracy as a justification for free speech protection more generally. (shrink)

“Sticks and stones will break my bones,” Justice Scalia pronounced from the bench in oral arguments in Schenck v. Pro-Choice Network, “but words can never hurt me. That's the First Amendment,” he added. Jay Alan Sekulow, the lawyer for the petitioners, anti-abortion protesters who had been enjoined from moving closer than fifteen feet away from those entering an abortion facility, was obviously pleased by this characterization of the right to free speech, replying, “That's certainly our position on it, and that (...) is exactly correct …”. (shrink)