NON-SUBORDINATION

Yet another way of thinking about the basic moral standing of hate speech and how this bears upon the N-warrant of hate speech law takes its lead from subordination theory: an attempt to uncover the ways in which cer-tain social practices tend to support or even constitute the subordination of certain groups of people. Subordination theory has a great many things to teach us about hate speech, some of which I shall try to bring out in this section. My aim is to explore possible instantiations of what I shall call the Principle of Non-Subordination, that legalistic constraints on uses of hate speech are (N-)warranted if they serve to protect individuals from acts of expression that also constitute acts of subordination.

It is useful to begin by recalling some claims made by critical race theo-rists in the late 1980s and early 1990s about hate speech and subordina-tion. According to Matsuda, ‘[r]acist speech is particularly harmful because it is a mechanism of subordination, reinforcing a historical vertical rela-tionship’ (1989b: 2358). For his part, Lawrence characterized the practice of racially segregated schools as speech —speech that conveys a particular message of subordination, ‘that black children are an untouchable caste, unfit to be educated with white children’ (1990: 439). At first glance, Matsuda and Lawrence seem to be suggesting that racist utterances either have subordination as among their negative consequences (i.e., speech acts that have perlocutionary effects) or have subordination as the idea they express (i.e., speech acts that have locutionary force), and only these things.

According to Andrew Altman, however, Matsuda and Lawrence are also

suggesting ‘that hate speech can inflict a wrong by virtue of its illocution-ary acts, the very speech acts performed in the utterances of such speech’

(Altman 1993: 309). ⁴³

I shall say more about the relationship between different forms of hate speech and illocutionary acts of subordination in a moment, but first I want to try to excavate the intellectual roots of Altman’s intervention. Matsuda herself acknowledged some of these roots as follows: ‘In an analogous context, the work of Catharine MacKinnon recognizes subordination of women and calls for laws addressing that subordination’ (Matsuda 1989b:

2362n.214). Matsuda had in mind not only MacKinnon’s work on pornog-raphy (Mackinnon 1987, 1991; see also MacKinnon and Dworkin 1988) but also her work on discriminatory harassment in the workplace and other forms of hate speech (1979, 1993). In the latter work MacKinnon moved beyond the First Amendment to suggest that the Fourteenth Amendment’s equal protection clause N-warrants the protections set out in Title VII of the Civil Rights Act of 1964 vis-à-vis discriminatory harassment in the work-place, even if these protections have the effect of constraining some speech (e.g., MacKinnon 1979: 6). But she also insisted that contemporary thinking about both the First and Fourteenth Amendments shows a ‘substantial lack of rec-ognition that some people get a lot more speech than others’ and of the fact that ‘the more the speech of the dominant is protected, the more dominant they become and the less the subordinated are heard from’ (1993: 72). In addition to this, Altman’s point about hate speech and illocutionary acts is intellectually rooted in Rae Langton’s (1990a, 1990b, 1993; see also Lang-ton and West 1999) seminal argument that pornography does not simply cause the subordination of women as a perlocutionary consequence but also constitutes the subordination of women as an illocutionary act. On Lang-ton’s analysis, this act has the following dimensions: ranking women relative to men, legitimating discrimination against women, and depriving women of rights and powers.

In fact, several philosophers besides Altman have sought to extend Lang-ton’s argument about pornography to the case of hate speech, including Langton herself (e.g., Maitra and McGowan 2010; Maitra 2012; Langton 2012; Langton et al. 2012). The existence of this extension project makes sense given the fact that Langton employed an example of racial discrimi-nation in order to explain her central thesis that some speech acts can be subordinating in the illocutionary sense. Specifically, Langton pointed to discriminatory speech acts during the apartheid era in South Africa—for example, a legislator declares, “Blacks are not permitted to vote”; an official signpost reads, “Whites only” (Langton 1993: 302). As she put it, these dis-criminatory speech acts ‘ rank blacks as having inferior worth’; ‘ legitimate discriminatory behavior on the part of whites’; and ‘ deprive blacks of some important powers: for example, the power to go to certain areas and the power to vote’ (303). Indeed, as EEOC v. Tyson Foods, Inc. demonstrates (see Ch. 2 [2.8]), this sort of racist speech retains its power to discriminate

even in contemporary US society. In her more recent work on the topic, Langton has argued that hate speech is also used to perform other poten-tially subordinating acts, most notably, inciting and assaulting (insulting) (e.g., Langton 2012: 74–77; Langton et al. 2012: 758–759).

For reasons of space, the remainder of this section focuses on two of the aforementioned classes of speech act that are said to be constitutive of sub-ordination: ranking people and depriving people of rights and powers . But before I begin the examination, however, three general issues require imme-diate attention. First, I want to raise and then immeimme-diately discount one line of objection to arguments for hate speech law that appeal to subordination theory. It is the objection that to say that prima facie certain forms of hate speech may be regulated if they constitute acts of subordination is to say no more than that according to certain norms or social conventions relating to treating people in a civilized manner hate speech is beyond the pale and should not be tolerated. This basis for restricting speech (so the objection runs) is inimi-cal to any true regime of freedom of expression (e.g., Alexander 1996: 89–90).

I discount this objection on the grounds tu quoque . If , and it is by no means clear-cut that they are, subordination theorists are defending hate speech law simply by appealing to norms or social conventions relating to what is uncivi-lized conduct, then arguably so are critics of hate speech law. Their norms or social conventions just happen to be concerned with a very broad range of speech that in their view ought to be protected in a civilized society.

Second, in my discussions of health [3.1] and security [3.3] I tried to interrogate some of the evidential bases for key empirical assumptions underpinning claims about the effects of hate speech. In some instances I found the evidence incomplete. So it might be asked, does subordination theory rely on empirical assumptions, and, if not, is that a strength or weak-ness of the approach? Abigail Levin has suggested that ‘the illocutionary hypothesis, while still a causal hypothesis, is nonetheless causal in a way that veers significantly away from the traditional model of causality and would tend to preclude in principle its confirmation or falsification by tradi-tional social science methodology, due to the near simultaneity of cause and effect that it posits’ (Levin 2010: 113). I disagree. It is certainly the case that

‘subordinating’ is an abstract verb and one that is defined (by Langton and other theorists) in terms of yet other abstract verbs: ‘ranking’, ‘legitimat-ing’, ‘depriv‘legitimat-ing’, ‘incit‘legitimat-ing’, ‘promot‘legitimat-ing’, ‘assault‘legitimat-ing’, and ‘insulting’. But one should not forget that ‘harm’ and ‘security’ are themselves abstract nouns.

Of course, when the concept of harm is defined in terms that can be specified descriptively, such as high blood pressure, clearly it becomes reckonable by public health scientists. They can ask, does exposure to hate speech increase the incidence of high blood pressure for a large proportion of people? And, does it raise the probability of high blood pressure for an individual when all other factors besides the presence or absence of exposure to hate speech are held constant? By the same token, however, when ranking people or depriving people of rights and powers is defined in terms of sets of formal

linguistic qualities occurring under sets of sociolinguistic conditions, they too are amenable to social scientific assessment by linguists and sociologists.

They can ask, do uses of hate speech possess certain formal and pragmatic linguistic properties consistent with ranking people or depriving people of rights and powers? And, do uses of hate speech render it more likely that an individual is being ranked or being deprived of rights and powers when all other factors besides the presence or absence of certain formal and prag-matic linguistic properties are held constant?

Third, and this follows on from the last point about speech pragmat-ics, subordination theorists face the particular challenge of explaining how it could be that mundane instances of hate speech performed by average citizens could, in the particular contexts of performance, constitute acts of subordination (as defined by Langton and others) even though average citi-zens lack the particular types of authority exemplified in the apartheid case.

The assumption here is that authority is a necessary condition of illocution-ary acts of ranking, depriving, and so on. In Langton’s apartheid example the constitution of South Africa conferred authority upon the legislator’s utterance in the context of domestic lawmaking, and the official signposts carried the authority of the governmental regime that created them. How could ordinary hate speakers plausibly be said to have authority for their public speech? (e.g., Sadurski 1999: 122–124). Much of the work currently being done by subordination theorists is devoted to addressing this Author-ity Problem in one way or another.

Subordination as Ranking People

In her discussion of hate speech as ranking Maitra (2012) offers an inge-nious solution to the Authority Problem. In doing so she relies on insights from speech pragmatics and, in particular, Robert Stalnaker’s account of how assertions work (cf. Stalnaker 1878, 2002). Suppose an Arab woman is sitting in a crowded subway carriage minding her own business.

Unprompted, an older white male approaches her and utters, “Fucking ter-rorist, go home—we don’t need your kind here.” The other passengers in the carriage hear the older man’s rant but say nothing. Neither does the Arab woman (Maitra 2012: 100–101). Maitra’s intuition is that this hate speaker succeeds in ranking as inferior the Arab woman in the context of that conversation and subordinates her in that sense. He does so by chang-ing the background of shared information or ‘common ground’ that pro-vides the basis for the remainder of the conversation: the other passengers do not have to believe that Arabs are inferior; all they must do is accept it for the purposes of the conversation (112, 116). The challenge posed by the Authority Problem is to explain how the hate speaker is able to author-itatively perform this illocutionary act of ranking given that he occupies no official position of authority, or at least no position of authority that equates to the position of the legislator or signpost creator in the apartheid

case. In Maitra’s example the older white male is just an ordinary (bigoted) citizen. Maitra claims that the key to meeting this challenge rests in the acquiescence of the other people in the subway carriage, who, like it or not, are participants in a conversation (115). She argues that in the context of this conversation the other people are free to reject the older man’s claims about the woman. That they fail to do so by remaining silent amounts to

‘licensing’, in the sense of granting authority. It is due to this licensing that

‘the speaker in this case succeeds in ranking his target’ (ibid.).

Although there is much that I find plausible in this account of licensing-based authority, there are significant weaknesses in what Maitra says (or does not say) about the conditions that must be satisfied in order for licens-ing to take place. Maitra gives scant guidance on these conditions and, more-over, some of the conditions that seem obvious appear to disqualify Maitra’s conclusion. Wojciech Sadurski offers two conditions. First, parties to a con-versation must ‘see a speaker as having a right to issue a particular type of illocution’ (1999: 131). Second, the speaker must perform the putatively subordinating illocutionary act ‘with a special kind of intention peculiar to this kind of act, and with the purpose that this intention be recognized as such by a hearer’ (ibid.). Even if one accepts that the old man in Maitra’s subway carriage example speaks with the intention of ranking Arabs, it is debatable whether he is seen by people on the carriage as having a right to rank, and thereby subordinate, Arabs in this way. What is more, I think that a third, extralinguistic condition must be satisfied. An act or omission on the part of participants in a conversation may legitimately count as licens-ing or grantlicens-ing authority to a speaker to perform some other illocution-ary speech act (e.g., ranking) only if the participants enjoy a reasonable opportunity to refrain from performing the act or omission that purports to license or grant authority. If the participants would face an unreasonably high burden as a result of performing whichever act or omission counts as withholding license or refusing to grant authority, then they do not enjoy a reasonable opportunity. ⁴⁴ Let us suppose for the sake of argument that in the subway carriage example the only thing that counts as withholding license or refusing to grant authority to the hate speaker is standing up and objecting to his speech. Let us also suppose that the burden of this act is an increased probability of the hate speaker coming over and hurling abuse at the objector (e.g., “You know what, you’re even worse than this Arab bitch because you’re selling out your own people—that’s right, you’re a lousy trai-tor”) multiplied by the resulting harm if he does so (e.g., the psychological harm of being called a traitor) plus the increased probability of the speaker coming over and physically assaulting the objector (e.g., repeatedly punch-ing the objector around the head and face), multiplied by the concomitant harm of being assaulted in this way (e.g., the physical damage and psycho-logical harm of being punched). Finally, let us suppose for argument’s sake that this burden is unreasonably high. In which case, remaining silent can-not be legitimately taken to constitute the licensing or granting of authority

to the hate speaker to engage in ranking. If it is generally the case that the expected burdens of sticking up for the victims of hate speech are unreason-ably high, then remaining silent will generally fail to qualify as licensing or granting authority. ⁴⁵

Nevertheless, the deeper question that drives my interest in subordina-tion theory is how well the Principle of Non-Subordinasubordina-tion fits with the different clusters of laws/regulations/codes that I outlined in Ch. 2 , as dis-tinct from hate speech law understood as a non-disaggregated lump. Stick-ing with the first dimension of subordination, ranking, and assuming for argument’s sake that the Authority Problem can be resolved satisfactorily, it would seem reasonable to suppose that the Principle of Non-Subordination could buttress the normative case for laws/regulations/codes that proscribe group defamation ( sensu stricto ); that limit the use of hate speech when it amounts to negative stereotyping or stigmatization; and that disallow the public expression of hatred, including through the use of insults, slurs, or derogatory epithets directed at members of groups or classes of persons identified by certain ascriptive characteristics, and through the public dis-semination of ideas based on the inferiority of such persons. How it is that the various forms of hate speech constrained by these different clusters of law can constitute acts of ranking could be explained both directly and indirectly: directly, by virtue of the fact that degradation is built into the very meaning of certain words or ideas; indirectly, because of what the deci-sion to employ such words against some groups of people but not others says about the relative status of those groups (e.g., Delgado 1982: 144n.65;

Lawrence 1987: 350–351; 1990: 461, 461n.112; Neu 2008: vii; Saunders 2011: 132; Langton et al. 2012: 758). ⁴⁶

Subordination as Depriving People of Important Rights and Powers

As well as associating hate speech with ranking , subordination theorists believe that some uses of hate speech deprive members of targeted groups of important rights and powers (Langton et al. 2012: 758). How does this work? Part of the answer can be borrowed from the work of critical race theorists, specifically the observation that racist hate speech can change the psychological traits and behavioral dispositions of members of targeted groups in such a way as to make them effectively surrender their own rights and powers by withdrawing from mainstream society. Another part of the answer is to be found in subordination theory itself, relating specifically to the phenomenon of silencing . More on this later. However, it is not sufficient to provide an account of how this depriving works. Subordination theorists must also furnish a theory of the fundamental nature and importance of the rights and powers at stake. Otherwise they will have failed to motivate the belief that depriving people of rights and powers is serious enough to N-warrant restrictions on the relevant forms of hate speech.

Consequently, in order to assist subordination theorists in answering this more fundamental question about rights and powers I propose to introduce an intermezzo theory , the purpose of which is to forge a link between an abstract normative principle and the case for particular clusters of laws/

regulations/codes. Specifically, I intend to repurpose Martha Nussbaum’s (1988, 1993, 2000, 2003, 2006, 2011) work on the ten ‘central capabilities’

as a model for thinking about the nature and importance of those rights and powers that can be deprived by some uses of hate speech. In short, I think that capability theory can help to bridge the gap between the detailed insights of critical race theorists and subordination theorists about the evils of hate speech and the more abstract claim made by subordination theorists that some uses of hate speech deprive intended targets of important rights and powers. ⁴⁷

Before turning to the detailed insights of critical race theorists and sub-ordination theorists, I need to say more about the intermezzo theory. For the purposes of this theory, to be deprived of important rights and powers is to be deprived of central capabilities, where this means to be deprived of having real access to basic human functionings. It is to be deprived of having regular, reliable, and uncoerced access to the valuable doings and beings that are part and parcel of any worthwhile human existence, includ-ing but not limited to healthy emotions (e.g., havinclud-ing a sense of self-worth);

senses, imagination, and thought (e.g., developing and exercising intellec-tual abilities); play (e.g., partaking of public spaces and events); control over one’s environment (e.g., operating in the workplace, participating in the formation of public opinion and influencing political decisions); and affiliation (e.g., enjoying friendships and loving relationships with other human beings). ⁴⁸ With the help of this theory I translate the abstract claim that some uses of hate speech deprive intended targets of important rights and powers into the claim that some uses of hate speech deprive intended

senses, imagination, and thought (e.g., developing and exercising intellec-tual abilities); play (e.g., partaking of public spaces and events); control over one’s environment (e.g., operating in the workplace, participating in the formation of public opinion and influencing political decisions); and affiliation (e.g., enjoying friendships and loving relationships with other human beings). ⁴⁸ With the help of this theory I translate the abstract claim that some uses of hate speech deprive intended targets of important rights and powers into the claim that some uses of hate speech deprive intended