UNCOOPERATIVE ENGAGEMENT: AN ACTIVE RESPONSE TO HATE SPEECH By Meredith Verrochi A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of Philosophy Ð Doctor of Philosophy 2015 !!ABSTRACT UNCOOPERATIVE ENGAGEMENT: AN ACTIVE RESPONSE TO HATE SPEECH By Meredith Verrochi In the following I take up and elaborate on the claim that we do things with words. That is, as speakers in a culture bound by convention and ritual, words are not merely an expressive tool but a form of action. More importantly still, words can Ð and ofte n do Ð wound in the very uttering of them. As to the question of how words wound, J.L. Austin provides us with the working theory Ð speech act theory. Like the illocutionary force of warning or marrying or christening, there is an illocutionary force of subordinating. Drawing together Austin's speech act theory with the theory of meaning and conversation provided by H.P. Grice, we have a formula for actively addressing the peculiar harm that is done in hate speech. If harm is well enough established then pr ima facie something ought to be done about that harm. What remains is the question: what does intervention look like? To that end, the main objective of this project is to show that there are avenues for interrupting the illocutionary force of subordinatio n beyond either enlisting the coercive power of the state or leaving recourse to the Òopen marketplace of ideas.Ó Somewhere between the Dworkin -MacKinnon anti -pornography ordinance and Judith ButlerÕs ÒresignificationÓ is an alternate path. In the followin g I develop a concept that I call "uncooperative engagement" as a means of redress that is both tenable and ethica l. Copyright by MEREDITH VERROCHI 2015!"#!!ACKNOWLEDGEMENTS I humbly thank all my colleagues in the Philosophy department at MSU. It has been a long road and a process that can often feel isolating and desolate. If not for my committee Ð Dr. Matt McKeon, Dr. Lisa Schwartzman, and Dr. Jamie Nelson Ð and their unending support and encoura gement, I would surely not be here. I wish to thank my adored brother John and sister Lauren, brother -in-law David, and niece Marin. My dear friends Adam Histed, Adam Friedman, Amanda, Kevin, Hudson, and Emelyn Lick . My dearest LP, Renner, who has treaded water with me and kept me afloat for a long, long time now. My parents, Rock and Debbie Verrochi. Thank you all for traveling down this bumpy road with me for the last several years so willingly, for being my buoy in a serious time of need. And to Nichole Riley, for showing up. To Marilyn: It has been a great honor to be your student, your interlocutor, and your advisee Ð in short, to be some part of your big story. It goes without saying that you have become an immeasurably important part of mine. My worl d has come to fit your word, and for that I am better. My sincere and humble and everlasting thanks. !#!!TABLE OF CONTENTS INTRODUCTIONÉ. ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ.ÉÉÉÉ. 1 Chapter 1 : Speech Act The ory and Words T hat Wound ÉÉÉ.ÉÉÉÉÉÉÉÉÉÉÉÉÉ.. É 9 Section I: Speech Act Theory ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ... . 10 The perlocutionary effects of hate speech ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ. 14 Section II: Enlisting state power to regulate racist speechÉÉÉÉÉÉÉÉÉÉ ÉÉ... 23 Charles Lawrence and the call to extend fighting wordsÉÉÉÉÉÉÉ ÉÉ.. . 23 Richard Delgado and the call for a tort remedyÉÉÉÉÉÉÉÉÉÉÉ.. ......... 27 Mari Matsuda and the criminalization of racist speech.ÉÉÉÉÉÉÉÉ ÉÉ. 31 Section III: WhatÕs wrong with enlisting state power?.................................... ..................... 37 Chapter 2: Censorship, Silencing, and the Construction of Social Reality : The Dworkin -MacKinnon Anti -Pornography Ordinance and the Illocutionary Force of Subordinating É...... 42 Section I: The way pornography harms: the intersection of subordination and silencingÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ ÉÉÉÉÉ... 45 Speech acts and subordinationÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ ÉÉ... . 45 Speech acts and silencingÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ ÉÉ......... 46 Silencing and the construction of social reality ÉÉÉÉÉÉÉÉÉÉÉÉÉÉ. 50 Section II: Pornography as hate speech and hate speech as actionable under the la w.... 57 The Dworkin -MacKinnon anti -pornography ordinance ÉÉÉÉÉÉÉÉÉÉ. 59 Concluding remarks ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ.. 69 Chapter 3: Excitable Speech, Sovereign Authority, and the Pos sibility of Felicity . ÉÉÉ... É... 76 A quick example to get things started ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ. 79 Section I: Censorship, Silencing, and the Dworkin -MacKinnon anti -pornography ordinance ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ. 81 Section II: Speech acts and sovereign authority ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ. 91 A quick and dirty detour of noteÉ ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ. 93 Section III: The case of Anita Hill ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ. 99 Concluding Remarks ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ... . 109 Chapter 4: Illocution, Intention, and the Role of the Hearer ÉÉ. ÉÉÉÉÉÉÉÉÉÉÉÉ. 112 Section I: Speaker Meaning ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ. 113 The Cooperative Principle ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ.ÉÉ. 118 Conversational Implicature ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ 122 An everyday example ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ. 12 5 Section II: The connection between felicity and nonnatural meaning ÉÉÉÉÉÉÉ.. 126 Section III: Hate speech ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ 133 Torture ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ... 134 Sexual Harassment ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ.. 135 The joke ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ. 136 Chapter 5: Uncooperative Engagement: An Active Response to Hate Speech ÉÉÉ.ÉÉÉ.. 138 The Ujamaa Incident ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ 145 !#"!!Name -calling ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ...É. 147 The threat ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ.. 149 Sexual harassment ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ...ÉÉ 151 A return, briefly, to ÒDonÕt Ask, DonÕt TellÓ ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ... 152 The off -handed remark ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ... 154 BIBLIOGRAPHY ÉÉÉÉÉ. ÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉÉ. 156 !$!!INTRODUCTION In the following I take up and elaborate on the claim that we do things with words. That is, as speakers in a culture bound by convention and ritual, words are not merely an expressive tool but a form of action. More importantly still, words can Ð and ofte n do Ð wound in the very uttering of them. As to the question of how words wound, J.L. Austin provides us with the working theory Ð speech act theory. Like the illocutionary force of warning or marrying or christening, there is an illocutionary force of s ubordinating. Drawing together Austin's speech act theory with the theory of meaning and conversation provided by H.P. Grice, we have a formula for actively addressing the peculiar harm that is done in hate speech. If harm is well enough established then p rima facie something ought to be done about that harm. What remains is the question: what does intervention look like? To that end, the main objective of this project is to show that there are avenues for interrupting the illocutionary force of subordinati on beyond either enlisting the coercive power of the state or leaving recourse to the Òopen marketplace of ideas.Ó Somewhere between the Dworkin -MacKinnon anti -pornography ordinance and Judith ButlerÕs ÒresignificationÓ is an alternate path. I begin with introducing Austin into the work of Mari Matsuda, Richard Delgado, and Charles Lawrence and their proposals for enlisting state power as an active response to racist speech. These theorists take it as prima facie true that we do things with words and that words can, and often do, Òwound Ó in the very uttering of !%!!them. Interests on both sides of this dialogue Ð to either regulate or protect hate speech Ð rely on this very conceptualization of speech; that is, we do not just describe or report on the world wit h speech, we act. More specifically, our utterances have illocutionary force, and sometimes that force is quite harmful in significant ways. As a collective, the authors of Words That Wound propose extending one or more exceptions to the first amendment to include hate speech. Or, as Matsuda suggests, we could uphold our commitment to equality by criminalizing hate speech as international law has already done. In my first chapter I intend to show that none of the proposals offered up by the authors of Words That Wound are appropriately characterized as prior restraint. The use of the term ÔcensorshipÕ as a rhetorical tool is misleading at best and uncharitable at worst. That being said, I ultimately reject the use of coercive state power as an ethically tena ble and politically viable form of recourse while I support their arguments for why some form of recourse is warranted. In the first section of the chapter I provide an account of speech act theory, elucidated through the use of examples. The second sectio n is dedicated to the authors of Words That Wound and their various proposals for enlisting state power as a viable, ethical form of recourse. And, lastly, in the final section of the chapter I address the problems I see with enlisting the authoritative power of the state to address the harm in hate speech, before turning to ButlerÕs critique in the following chapter. Throughout my project I attempt to bring some clarity to the discussion by identifying two overlapping issues that recur and are often confla ted: There is a !&!!conceptual problem and a political problem at hand. The conceptual problem is that legislative proposals attempt to restrict words or phrases or the utterances themselves and this mislocates the harm in hate speech. The political problem ar ises from our unparalleled commitment in this country to Òfree speech,Ó which makes tackling the first amendment an untenable strategy. (Not to mention that restricting speech often coincides with burdening the least well off with even more infringement on their civil rights, and on that count alone it should be considered cautiously.) Re gardless of whether or not proposals for enlisting the coercive power of the state are properly characterized as censorship (I, for one, think there are more precise and charitable ways of describing their proposals), enlisting state power to regulate or restrict speech is problematic on both a conceptual and political level. Given our collective history, the international movement toward regulating hate speech, and the in exorable link between speech and equality, the call to enlist judicial authority to restrict certain speech acts is reasonable, at the very least. The suggested remedies are reasonable, that is, but not satisfying Ð they are not ÒunriskyÓ enough , not polit ically workable enough of the time and with enough assurance that their implementation will not be misused. The same goes for the Dworkin -MacKinnon anti -pornography ordinance, which I attend to in my second chapter. This chapter is divided into two section s: The first attends to the claim that pornography harms women. This is an important claim to engage since the argument for it is also the argument for the harm in hate speech. The last part of this chapter is dedicated to the anti -pornography ordinance it self. I argue !'!!that the ordinance is not a form of prior restraint and to characterize it as such misleads the discussion. The ordinance gives legal standing to the group of victims harmed by pornography Ð it makes harmful behavior involved in the productio n and/or use of pornography an actionable offense. Central to my project is a close analysis of prohibitive policies against speech. However, to claim that MacKinnon and Dworkin have proposed a prohibitive policy is just wrong. To make the argument that underneath it all they are suggesting something ÒultimatelyÓ prohibitive is a tricky argument to make, and one that stretches the term censorship into oblivion. A policy that dictates what can and cannot be said is a prohibitive policy. The anti -pornograp hy ordinance provides redress for harm as a result of speech; it does not prohibit the speech from being uttered. If a ladder manufacturer makes a defective ladder and as a result people are hurt, those people have the opportunity (if they choose to take i t) to sue the ladder manufacturer for damages. Such a policy does not prohibit ladder making . It can be argued, in a roundabout way, that the policy prohibits bad ladder making in that being open to suit would keep the ladder -maker from making certain kind s of ladders. But to call such a policy prohibitive is a stretch. I then turn to ButlerÕs opposition of MacKinnon and Matsuda in the third chapter of this project. B utler rejects intervention through legislation. She calls for resignification Ð a type of reclaiming that is possible at the site of infelicity. I read Butler as challenging both what I have called the conceptual problem at hand and the political problem at hand. Enlisting state authority is ethically questionable and politically untenable (the political !(!!problem) . Furthermore, according to Bulter, MacKinnon et al posit a sovereign authority to the speech act that is false and that forecloses the very avenues of recourse they wish to enact (the conceptual problem). If the act is sovereign (as But ler accuses MacKinnon et al of suggesting) then there is no intervention Ð itÕs not possible to interrupt the sovereign act. In response I argue that Butler fails to recognize that the possibility of infelicity does not foreclose the possibility of felicit y. Sometimes the illocutionary act comes off without a hitch, and sometimes it doesnÕt. As Austin says, the illocutionary act is a conventional act; its success is determined by a host of interacting conditions. Thankfully there is a possibility of infelic ity and, thereby, an opportunity for the hearer to intervene. I argue that the very same conceptual problem can be leveled at Butler: She questions the very idea of illocutionary force (she favors the perlocuti onary dimension of speech acts) when she says, ÒThe saying is not itself the doing, but it can lead to the doing of harm that must be countered. Maintaining the gap between saying and doing, no matter how difficult, means that there is always a story to tell about how and why speech does the harm that it does .Ó1 If there is no such thing as illocutionary force [what the saying does ] then there is no such thing as resignification. Butler forecloses the very avenue of recourse she desires. In the first section of this chapter I address ButlerÕs critique of those calling for legislative intervention. In the second section I focus on ButlerÕs claim that MacKinnon et al imbue the illocutionary act with sovereign authority Ð a point on which I believe she is mistaken. In the final section I bring these two p oints together in an analysis of the Anita Hill case. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!$!Butler, Judith. 1997. Excitable speech: A politics of the performative. New York: Routledge. Pg. 102 !!)!!In chapter four I introduce GriceÕs theory of speaker meaning and conversational implicature in the interest of establishing alternate modes of social intervention. Once again, intervention is the opera te concept here. An analysis of the Gricean model of meaning affords an alternate view of the hearer/audience Ð one in which that role is quite powerful. In Grice we see that humans are bein gs that interpret constantly. W e are intensely social and we are i ntensely socialized to read each total speech situation Òcorrectly,Ó in accordance with the current cultural norms and conventions; in GriceÕs terms, to engage cooperatively . Someone hails me and IÕm there, responding. I argue for a co-opting of GriceÕs Co operative Principle Ð one in which we reimagine engagement with the speaker as potentially uncooperative, but engagement nonetheless. Herein lies the possibility of generating infelicity by the audience . It is the audience that has the power to thwart the subordinating intentions of the hate speaker. In Section I of the chapter I unpack GriceÕs theory of speaker meaning. In Section II I address the connection between AustinÕs notion of felicity and GriceÕs nonnatural meaning. In the final section of the cha pter I pull these concepts together to address hate speech with a series of cases in which an Austinian/Gricean analysis illuminates the power held by the audience. In conclusion, we need not be stuck with just these two alternatives for hate speech interv ention: E ither we support government backed legislation (even the relatively weak intervention that is the Dworkin -MacKinnon anti -pornography ordinance) or deny any form of organized intervention. We certainly need not deny the possibility of formulating c oncrete, manageable interventions Ð something that can be !*!!described, taught, and employed. Of course such a formulation is necessarily incomplete and open to failure, but that need not mean that the formulation is indecipherable or unmanageable. Sometimes the illocutionary act isnÕt accomplishedÉbut sometimes it is! We can imagine a set of ÒrulesÓ without clear and distinct boundaries (more like family resemblances) that can be taught and employed . I suggest we take another page from AustinÕs book and look to what we actually do (when we are our best, most clever selves in the face of hate speech) in response to instances of hate speech. Here is where we will find interventions that are describable and manageable but are not dependent upon the coercive power of the state. 2 There is no escaping power relations in the social world (likewise, there will always be the ÒdissÓ even if we intervene on hate speech) Ð the question is, given that power relations are capable of being manipulated, how do we manipulate t hem to intervene on hate speech? What is often ignored is the significant role of the hearer in any given conversational exchange. I invoke GriceÕs account of conversational implicature Ð which gives a significant place to the audienceÕs cooperation Ð to w ork out creative uncooperative engagements with hate speech acts. ItÕs got to be more than counterspeech Ð ÒjustÓ counterspeech is too much like the liberal response (the Òmarketplace of ideasÓ approach). Both Butler and MacKinnon will appreciate a formula tion that is more than counterspeech and it is somewhere in between their opposing views that we find the solution. In the final chapter I develop uncooperative !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!%!These responses may be conceptually supported by judicial authority but are not maintained or enacted by the coercive power of the state. !!+!!engagement as a means of responding that is both more purposeful than counterspeech and less co ercive than state legislation. All else being equal, the Òhate speech legislationÓ debate was abandoned too quickly and, more importantly, unnecessarily. The points on which the two camps agree are strong. Most importantly, the harm in hate speech is sign ificant enough that pursuing a describable intervention is warranted Ð even morally obligatory. In the following I heed just such a call. !,!!Chapter 1: Speech Act Theory and Words That Wound Racism achieves its purpose through the construction of meaning. 3 There is a breadth of important work that has been done to argue for enlisting the authority of the state to address the harm in hate speech. This project takes the claim that certain utterances should be actionable under the law as a serious proposal wort h philosophical enquiry. I specifically engage the arguments put forth by the authors of Words That Wound and the anti -pornography ordinance crafted by Catharine MacKinnon and Andrea Dworkin. All of these theorists (henceforth named Enlisters ) identify hat e speech as an integral function of institutionalized oppression and therein all propose the enlistment of state power to address institutionalized oppression, albeit in notably distinct forms. In a world in which people are placed in groups of varying social and political import and aligned hierarchically within and among those groups, subordination is something that happens, and sometimes it is done through speech Ð ÒdoingÓ hate is sometimes done simply by speaking hate and, in this way, hate speech not o nly perpetuates oppression but is itself an act of subordination. Interests to regulate speech rely on a particular conceptualiza tion of what we do with words; n amely, we do not just describe or report on the world around us, we act. Sometimes we use langu age to relay our thoughts but also, more often than not, we use language to perform certain actions. There are, in fact, some acts that are most clearly and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!&!Delgado, Richard, Charles R. Lawrence III, Mari J. Matsuda, and Kimberl” Williams Crenshaw, eds. 1993. Words that wound: Critical race theory, assaultive speech, and the First Amendment. Boulder: Westview Press. Pg. 9. !$-!!explicitly done through no other way than speech (e.g. promising, christening, inaugurating, to name but a few) Ð when the conditions are just right, the utterance is the act . It is most notably J.L. Austin who attended to this way in which we use language Ð the per formative dimension of speech . Austin was less concerned with how words describe the worl d and more with how language -users employ words to accomplish actions. In the following section I look at the theories of Charles Lawrence, Richard Delgado, and Mari M atsuda and their various proposals for how and why we ought to enlist state power to regulate racist speech. As I read these authors, they each analyze various iterations of racist speech as performing a kind of act. In other words, I read them as talking about speech acts . There is a certain robustness lent to Words That Wound when read through an Austinian lens, especially when analyzing the claim that significant social and political harm is done in racist speech. When Matsuda says that racist speech is racism, she suggests that racist speech has a certain illocutionary force (an Austinian concept) that does some work to construct reality. So, first, a bit about AustinÕs theory of speech acts. Section I: Speech Act Theory Consider the following utteranc es: A. ÒPass the salt.Ó When said around the dinner table. B. ÒTime to practice piano.Ó Said by a parent to their charge. C. ÒNo girls allowed in the tree house.Ó A sign posted on the door of a childÕs fort. !$$!!D. ÒYouÕre hired.Ó Said by a hiring agent to a p otential employee. E. ÒI pick PilotÓ (for my team). When said by the leader of a team. All of the above are speech acts in that, when uttered in the appropriate context by the appropriate speaker, they are not observations ; the uttering is the performance of a particular action. Let us look closer at the last example above, example E: ÒI pick PilotÓ (for my team). Imagine that Captain Orange stands before a group of participants Ð all of them there willingly, in a not -so-serious context Ð and begins to pic k out the people she wants for Team Apple. Given that, among other things, Captain Orange is in fact the person authorized to pick members of the team and (as weÕve already established) all the potential team members are there to be picked, when Captain Or ange utters, ÒI pick PilotÓ then Pilot is thereby picked for the team. Orange is not describing the situation; she is, as Austin put it, indulging in the act of choosing members for the team. 4 She picks Pilot in the very uttering of the words . Austin cons iders the ÒindulgingÓ in an act ( in the uttering) as first the saying of something as a Òfull unit of speech,Ó which includes the act of uttering certain noises (the phonetic act), the uttering of certain vocables or words (the phatic act), and the uttering of those vocables with a more -or-less definite sense and reference (the rhetic act). 5 All together, when one utters something that is meaningful in a given language, conforming to a certain grammar and semantics , we have a locutionary act . Captain !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!4 J.L. Austin, 1962. How to do things with words , 2nd ed. Cambridge, Massachusetts: Harvard University Press. ÒWhen I say before the registrar or alter, etc., ÔI doÕ, I am not reporting on a marriage: I am indulging in itÓ (6). 5 Ibid. Pg. 95. !$%!!Orange could, of course, use various locutions to perform the illocutionary act of choosing members of the team; she could simply say ÒPilotÓ or point and say ÒTeam AppleÓ and so on. Just as we can congratulate someone (an illocutionary act) by uttering, ÒCongratulations,Ó or, less formally, ÒCongrats,Ó or ÒWell done!Ó If we were interested in being particularly formal or explicit, congratulations can be done in uttering, ÒI congratulate you,Ó though a bit awkward to say . So long as the context is just right for congratulating, any of these utterances have the force of congratulations. The illocutionary act is the term Austin introduced to identify the doing of something in the very uttering of the words. 6 Picking out wh ich, if any, illocutionary act requires an analysis of the context of the utterance. There is no exhaustive list of illocutionary acts Ð they are as numerous and varied as there are imaginable contexts of speech. Thus, we speak rather of the illocutionary force of a given utterance in a particular context. Whether or not a particular utterance has a certain illocutionary force depends on the context of the utterance. An actor on a stage does not really congratulate anyone when she says, ÒCongratulationsÓ wi thin the context of the play. Captain Orange does not appoint anyone to Team Apple when she says, ÒI pick Pilot,Ó if she is merely a bystander or witness to the event. Language is most essentially a practice that takes place among people. We use language to promise, to break up, to resign from a position, or to conclude an argument (all illocutionary acts). But we also use language in order to bring ab out certain effects in others. We use language to persuade, to convince, to get someone to trust us, to h urt, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!6 Another example: Given the context is just right for promising, the deed is done in the uttering of ÒI promise.Ó Contrast with running, which is not done in the uttering of ÒI run.Ó !$&!!to assuage. Austin called this dimension of speech the perlocutionary act . The doing of something in saying something often (if not always) will result in a series of consequences (as is the case with acts in general). The uttering of ÒI pick PilotÓ w ill bring about various feelings, thoughts, or actions of the audience, or of the speaker, or of other persons. I see the locutionary/illocutionary/perlocutionary distinction as providing various descriptors for a given utterance in a relatively specifia ble context. So consider: ÒI pick PilotÓ uttered by Captain Orange in the context of choosing the members of her team. The locutionary act is one description of what has been done [uttered the sentence ÒI pick PilotÓ], the illocutionary force is another [m ade Pilot a member of the team], and the perlocutionary act is yet another [e.g. surprised PilotÕs mom]. Locutionary Act: The structure of her utterance is meaningful in a language Ð it fits the grammar and semantics of the English language. Illocutionary Act: In this context, in uttering, ÒI pick Pilot,Ó she picks Pilot in the uttering of ÒI pick Pilot.Ó 7 Pilot is picked. Pilot is made a member of the team. Perlocutionary Act: We can imagine a range of consequences that this utterance brings about in othe rs and even himself. Since we have determined that Pilot is there willingly and is interested in being picked for a team then Pilot is likely happy as a result of the utterance. If Team Pear was preferred, then being picked for Team Apple likely disappoint s Pilot. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!7 Austin imagines a context in whic h Pilot is not picked: Suppose Pilot isnÕt playing and simply walks away from the scene, or was just a bystander witnessing the event. Or, similarly, Captain Orange isnÕt actually the one with the authority to pick members of Team Apple. These examples are all forms of infelicity , which weÕll attend to later in greater detail. !$'!!We do lots of things with language Ð add figures in our head, perform soliloquies, tell jokes, give promises, and so on Ð and one thing that we do with language is not merely describe or report on the world but perform some act in the very utteri ng of words. A large part of what the Enlisters provide, once their work is given the Austinian treatment, is an argument for the illocutionary force of hate speech to harm with such significance that some form of restraint or redress is warranted, if not obligatory. The perlocutionary effects of hate speech The Enlisters argue that our ideological commitment to the protection of hate speech (under the first amendment) is in direct conflict with our ideological commitment to equality. Their arguments call us to account for the ÒunconsciousÓ racism (sexism/heterosexism/clas sism) suggested by our continual commitment to protect the speech of racists, bigots, pornographers, and hate mongers. Given the empirical correlation between hate speech and violence (to physical person and personhood), our apparently impenetrable nationa l commitment to protect hate speech seems especially dubious. Something else is called for. The call to intervene (legally) on speech first calls for evidence that injury has been sustained: To call for the regulation of speech because it harms requires some means of establishing (with some specificity) how and to whom harm has occurred, and pre supposes that such a determination is possible. Enlisters take on this task. They argue that the harm in hate speech is just as damaging, just as serious, and just as dangerous as bodily injury. Words that wound Òhit the gutÓ and, since we are talking !$(!!prec isely about speech that is directed toward members of historically subordinated groups, causes the perpetuation of structural and institutionalized racism. The authors of Words that Wound provide victim testimonials, along with a historicized and contextu alized interpretation of constitutional theory, to show the grave harm that is inflicted by speakers of hate. Utilizing the concepts of speech act theory, the harm is described as one of many perlocutionary effects of speech (as opposed to illocutionary). Speech results in racism; speech causes subordination. As mentioned above, the need to establish a causal link between speech and harm is necessary for their particular project Ð when working within the structure of the law, recourse can only be provided t o one injured once it is ÒshownÓ that another inflicted injury. For example, for a tort action to hold up it must be determinable that some utterance happened [ÒFucking dykes!Ó] and injury followed [fear of remaining in the vicinity of the speaker]. It is quite important to show that there are severe perlocutionary effects of speech but, as we shall see, the harm caused by the speaker is not the only kind of harm at play nor is it the most insidious kind. There are several issues with the Enlisters Õ line of reasoning that warrant address. Not least of which being that it appears necessary to establish speaker intent and audience response Ð both of which are tricky things to pin down. Let me be clear that I do not deny the causal connection between hate speec h and serious injury; in fact, I wish to remain open to the possibility that some form of authoritative regulating of hate speech ought to be part of our larger dialogue, because it is predictably a proximate cause of serious harm (as is drunk driving). Th at being said, I share Judith !$)!!ButlerÕs concern that enlisting judicial authority to combat the harm in hate speech is conceptually problematic and strategically untenable. First amendment exceptions (such as the fighting words or obscenity doctrines) tend to be characterized as a type of prior restraint on speech, in that certain utterances are not protected (under the first amendment) before they are ever uttered. MacKinnonÕs proposal is quite different, and often gets mistakenly aligned with first amendme nt exceptions, but is a form of enlisting state power nonetheless. I believe there is another way, and hope to show what that may look like in the following project. In this section, I begin by addressing the proposals for broadening the category of Òfight ing wordsÓ to include racist speech. I then move to MatsudaÕs argument for the criminalization of racist speech . Matsuda provides an easy transition from making racist speech actionable (under criminal law) to the claims made by MacKinnon and Dworkin in su pport of making pornographic speech actionable (under civil law) , which I address in depth in the following chapter . A bit more needs to be said about the relationship between prohibiting speech (prior restraint), unprotected speech, and making certain utt erances actionable. We can imagine hate speech as falling into and out of three separate categories of legal action: widening the scope of unprotected speech; making certain utterances criminally and/or civilly actionable; and prohibiting certain utterance s (prior restraint). The First Amendment says that states cannot limit speech; state authority cannot dictate what can and cannot be expressed by its citizens. Exceptions to the first amendment identify speech that is unprotected by the first amendment. Unprotected speech is not logically equivalent to prohibited speech, but there is a connection: if particular speech is !$*!!unprotected, a state can prohibit it without violating the constitution. The charge of prior restraint is leveled at the move to prohibit speech. None of these theorists propose banning speech outright; thus, the characterization of their proposals as a form of prior restraint is sloppy at best, uncharitable at worst. Making certain utterances (in certain contexts) actionable is not the same as prohibiting speech or as prior restraint. Although related, these various forms of intervening on speech are not logically equivalent. (There may not be much to say on the topic of combating oppression through enlist ing state power if they were.) Those who argue for an enlistment of state power to redress the harm of hate speech often get lumped together and characterized as proposing a form of censorship (this is done most notably in the literature by Butler, 1997). Censorship is problematic on both a conceptual and practical level. As far as censorship entails a kind of prior restraint (and it need not, though is often characterized as such), the conceptual problem is that prior restraint restricts words or phrases o r the utterances themselves and this mislocates the harm in hate speech. The practical problem arises from our unparalleled commitment in this country to Òfree speech,Ó which makes tackling the first amendment an untenable strategy. In the following I enga ge the arguments put forth by the authors of Words That Wound and, while I support their reasons for why hate speech should be actionable, I ultimately challenge their call to enlist the power of the state. There is another way, I believe, to respond to hate speech that supports both a commitment to freedom of expression and a commitment to interrupting oppression. !$+!!The use of the term ÔcensorshipÕ in this dialogue is largely a rhetorical tool. The critical race theorists are mostly concerned with the argum ents of first amendment absolutists. And, yet, the idea that some speech is harmful enough to warrant regulation is not wholly unfamiliar. Community conduct codes on many college campuses, along with the international movement to see hate speech as a civil rights violation, provide the basic ideas that motivate our national dialogue between Òfreedom of expressionÓ on the one hand and Òcommitment to equality of all personsÓ on the other. ÔHate speechÕ is a term used to identify speech that disparages, harass es, or denigrates another based on their membership in an ÒaccidentalÓ social group Ð such as race, sex, class, sexuality, and so on . For the purposes of this project IÕll refrain from providing a definition that presumes to exhaust the criteria for what c onstitutes hate speech. (In fact, part of what I hope to show in this project is that there are utterances that ought to count as hate speech that the contemporary definition would not allow Ð such as, ÒThatÕs so gay.Ó) Although it is important to lay out some clear examples of words that wound, and equally important to work within a zone in which there are clear examples of hate speech, it is also imperative that we not try to draw the outline/boundary to what is (definitively) hate speech and what is not. Campus hate speech regulations provide the central threads in these definitions. The authors of Words That Wound collectively characterize hate speech as a type of assaultive speech Ð speech that is used Òto ambush, terrorize, wound, humiliate, and degrad eÓ Ð directed at historically subordinated groups. 8 Currently, in the hate speech codes enforced on !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!8 Words That Wound (1993), pg. 1. !$,!!many college campuses, and in the debate surrounding legal restrictions on speech, hate speech is defined as Òdiscriminatory harassmentÓ (oral, written, gra phic, or physical) directed at an individual or group based on their membership in a protected class . The impetus for such regulation is to promote a productive and safe educational environment . Hate speech, it is argued, has the effect of intimidating its intended recipients and of re -establishing a damaging social hierarchy; i.e. it is more than mere offense . Those who oppose such regulations c all upon the first amendment. T he free expression of ideas is a fundamental right and , furthermore, nurturing ope n discussion is the principle objective of any institution of higher learning . The legitimacy of arguments for the regulation of hate speech (including university hate speech codes ) turns on whether or not speech is appropriately characterized in certain circumstances as accomplishing [ effecting ] what it signifies . In other words, what, if any, force does the utterance have to do harm? Critical race theorists, such as Delgado, Matsuda, et al., have argued, rather persuasively, that judges and legislators ought to adopt a perspective that views certain types of hate speech as inexorably linked with subordination and violence; and, thus, to look to history and context when enacting state -supported regulations on speech .9 Although an attractive view, it is al so a view that r elies on a particular conceptualization of speech that ultimately does not meet the end of disrupting oppression . Efforts to limit hate speech often are forced to rely on the idea that such speech is harmful because it offends or insults me mbers of the group or groups that it targets . It is true that hate speech is !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!9 Ibid. !%-!!offensive and insulting; however, as I argue , reliance on that fact in order to say what is wrong with hate speech is inherently problematic . Offense and insult are not the only, and not the most serious, harm that occur. Equally problematic is the tendency in an analysis of hate speech as speech act to locate the harm in the intention of the speaker . What is needed and warranted is a system that locates the harm of hate speech not in the feelings, emotions, or thoughts of the audience, nor in the heart, intention, or thoughts of the speaker, but in the force of certain speech acts -- when uttered in the ÒrightÓ context by people with the ÒrightÓ authority -- to do as much as they s ay. Legal restrictions on hate speech may be warranted given a hierarchically structured society and an explicit, Constitutional commitment to equality. The best arguments for the legal restriction of hate speech rely first and foremost on a conceptualizat ion of law as providing a type of legitimatization of the actions of its citizens . The ÒclaimÓ that a certain act is illegal has the force of condemning the person who commits the act . Conversely, if racist speech Ð and, thereby, the subordination of denig rated groups Ð is given state protection, the force of that protection is to legitimate racist behavior . Likewise, t he result of legitimizing anti -racist behavior seems intuitively clear: Growing up in a country that ÒbelievesÓ that the racial segregation of schools is unconstitutional is growing up in a place where the law delegitimizes behavior that subjugates one race to another . The law circumscribes appropriate behavior and in so doing legitimates some actions and casts doubt on the legitimacy of other s. Proposals for the regulation of hate speech put forth by Mari Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberl‘ Williams Crenshaw are founded on the !%$!!tenets of critical race theory . Their arguments are grounded in a commitment t o recognizin g that the experiences and histories of people of color have epistemological value and ought to be considered when evaluating the law and proposing new legal theory . They argue that current evaluations of the law are ahistorical and acontextual and that ah istorical and acontextual evaluations support racism. Ultimately, they claim that an interdisciplinary approach and cross -cultural translation is central to anti -racist methodology and an end to racial oppression includes challenging hierarchy generally, including oppression writ large. 10 Our work is a pragmatic response to the urgent needs of students of color and other victims of hate speech who are daily silenced, intimidated, and subjected to severe psychological and physical trauma by racist assailants who employ words and symbols as part of an integrated arsenal of weapons of oppression and subordination. É Each of us knew that we were inclined to be more cautious, less outspoken and visible, after a rash of hate tracts had appeared in our mail or been stuffed under our doors. We knew that we walked more quickly to our cars after late nights at the office and glanced more often over our shoulders as we jogged trails around our campuses. We needed theory and analysis to articulate and explain our reality, to deconstruct the theories that did not take our experience into account, to let us know that we were not crazy, to make space for our voices in the debate. 11 Their project pits them against first amendment absolutists who argue that any regulation of the first amendment is too much . (Additionally, their project pits them against theorists who reject first amendment absolutism but still argue that enlisting state power is a weak Ð and quite risky Ð political strategy. WeÕll see more of th is when we turn to Butler. For now, these authors focus on Òfree speechÓ objections to regulating hate speech.) The disparate proposals compiled in Words that Wound are arguments for !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!10 Ibid. Pg 6. 11 Ibid. Pgs 7 -8. !%%!!various forms of regulation; they include a tort action that recognizes r acial epithets as sufficiently analogous to Ògarden -varietyÓ fighting words, a criminalization of racial epithets, and the extension of the fighting words exception to include racial epithets. Delgado, Lawrence, and Matsuda all propose amendments to contem porary legal theory that would limit the scope of free expression to varying degrees . The one exception is CrenshawÕs piece, in which she focuses on the intersectionality of race and gender as it plays out in the obscenity trial of the rap group 2 Live Cre w. She takes a case presented to the courts as a case about Òfree speechÓ and shows us that there is much more going on than merely the question of obscenity. Her analysis provides an illustrative example of the acontextual and ahistorical interpretation o f the first amendment, which is precisely THE argument made by the collective authors of Words That Wound . Current interpretation fails at acknowledging the intersectionality of racism and sexism (at a minimum) and thus fails at protecting the interests of women of color. Something else is required. Although Crenshaw refrains from proposing some specific form of regulation on speech, she stands with the group in her call to contextualize and historicize first amendment theory. 12 As one voice, the authors of Words that Wound prescribe revising legal theory with a backward -looking strategy. 13 They call for judges and law -makers to consciously and purposefully allow history and context to influence current law making . !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!12 Ibid. Pgs. 10, 111 -132. 13 Ibid. Pg. 134. !%&!!Section II: Enlisting state power to regul ate racist speech Charles Lawrence and the call to extend fighting words In his piece, ÒIf He Hollers Let Him Go,Ó Charles Lawrence makes the case for allowing history and context to explicitly influence legal decisions by recounting one of his own experie nces, what later became known at Stanford as the Ujamaa incident .14 The origin of the incident was an argument between two white freshmen and a Black student over the ethnicity of Beethoven. The next night the two white students defaced a poster of the arti st Ð coloring the drawing brown, giving it wild curly hair, big lips, and red eyes Ð and pinned it to the door of the Black student who had asserted that Beethoven was of African descent. It was also discovered (also in Ujamaa, StanfordÕs Black theme house ) that another poster (this one advertising a Black fraternity dance) had been defaced on the dorm bulletin board. The word ÒniggersÓ had been written in large letters across the face of the poster. The overwhelming reaction by (white) students and faculty to the Ujamaa incident was to treat it as Òan unfortunate boyish prank by misguided undergraduatesÓ and as unrepresentative of the racial climate at Stanford. They called for tolerance of this ÒisolatedÓ case given the danger to free speech and intellectu al debate that would result from punishing the white students. As a token Black faculty member at Stanford, LawrenceÕs reaction to the incident was quite different. The message said, ÒThis is you. This is you and all of your African -American brothers and s isters. You are all Sambos. ItÕs a joke to think that you could ever be a Beethoven. ItÕs ridiculous to believe that you could ever be anything other than a caricature of real genius.Ó 15 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!14 Ibid. Pgs. 53 -88. 15 Ibid. Pg. 8. !%'!!LawrenceÕs experience of the posterÕs message highlights the very pub lic injury of such an act Ð the injury is to a group, not to an individual. It matters that the dorm was the Black theme house on campus, the intended audience is clear. Most important of all, when the administration privatizes the injury they ignore the m ost harmful part Ð the force of the message to perpetuate racism. But to see that, one must contextualize and historicize such incidents, which the administration decidedly fails to do when they treat the incident as ÒisolatedÓ and as a Òboyish prank.Ó The perpetrators were not punished . According to the administration, the offending studentsÕ conduct was protected under the university Õs free speech doctrine . For Lawrence, the act of ÒdefacingÓ an image by Òmaking itÓ non -white (and the historical link such ÒdefacingÓ has to minstrel shows and blackface ), within the context of entrenched arguments about intellectual capacity and ÒempiricalÓ claims of inferiority, all contribute to the message affected by pinning the image to a Black studentÕs door. The p ower of the posterÕs message was derived from its historical and cultural context, from the background of minstrel shows, of racist theories about brain size and gene pools and biblical ancestors that has shaped our conscious and unconscious beliefs about the intellectual capacity of Blacks . Without the context th e defacement had no meaning. 16 The meaning of the defaced posterÕs message cannot be grasped outside of the historical context of the oppression of Blacks ; thereby, we see what Lawrence means by an ahistorical reading of first amendment theory. Thus, the administration makes a mistake in not considering this context in its interpretation of its own regulatory practices . !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!16 Ibid. Pg. 8. !%(!!Lawrence calls for a reevaluation of StanfordÕs code of conduct , a code that can be (and was) called upon to protect racist hate messages . [Note that the call to reevaluate a university code of conduct is much like the global calls to consider the value of equality when interpreting regulations of speech.] He argues that college campu ses should uphold carefully crafted hate speech regulations and that doing so is not a serious threat to first amendment ideals . Racist, bigoted, hateful utterances are a type of Òfighting words,Ó according to Lawrence; they hit the gut, their injury is immediate , like a Òslap in the face.Ó 17 In Chaplinsky v New Hampshire (1942), the Court held that there is a category of face -to-face epithets, or Òfighting words,Ó that was wholly outside the protection of the First Amendment, which Òby their very utterance inflict injuryÓ and which Òare no essential part of any exposition of ideals.Ó 18 Thus, the Òfighting wordsÓ exception to first amendment protection subsumes racist speech acts . In this chapter of Words that Wound , Lawrence also argues that the distinction b etween face -to-face, direct racial insults and fighting words is a false distinction . Thus, the scope of unprotected speech ought to include less direct encounters, such as the Ujamaa incident , even though the incident is not constituted by a face -to-face assault. He understands the concept of Òfighting wordsÓ to include instances where the target of racist speech (be it an individual or a group ) cannot escape the utterance. Courts have held that offensive speech may not be regulated in public forums such as streets and parks where listeners may avoid the speech by moving on or averting their eyes, but the regulation of otherwise protected speech has been permitted when the speech invades the privacy !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!17 Ibid. Pg. 68. 18 Chaplinsky v New Hampshire (1942). !%)!!of unwilling listenersÕ homes or when unwilling listeners cannot avoid the speech . Racist posters, flyers, and graffiti in dorms, classrooms, bathrooms, and other common living spaces would fall within the reasoning of these cases . Minority students should not be required to remain in their rooms to avoid racial assault. 19 The poster of Beethoven, defaced to look like a demeaning representation of African ethnicity, pinned to the door of a Black student , is a message of hate that all Black students on StanfordÕs campus cannot escape . As Lawrence suggests, the pos ter has a Òcaptive audienceÓ in the victim who cannot escape being addressed by the degrading caricature. 20 The posterÕs message is not meaningful outside the context and history of racial oppression. Overall, LawrenceÕs goal is to show that most arguments for protecting racist speech are founded on a bogus distinction between Òfighting wordsÓ and ÒoffensiveÓ or ÒinsultingÓ speech. The claim is that racist speech merely offends or insults when, in actuality, whether or not the message results in any one per son feeling insulted or offended is of the least concern. The concern ought to be (given our national commitment to equality for all persons) whether or not the message is one of denigration of a group. Furthermore, the fact that racist speech is often met with flight rather than fight illustrates the real threat that racist speech is taken to indicate rather than supporting the claim that racist insults are not Òfighting words.Ó As Lawrence suggests, ÒThe harm to be avoided is both clear and present.Ó 21 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!19 Ibid Delgado et al. Pgs. 70 -71. 20 Ibid. Pg. 57. 21 Ibid. Pg. 68. !%*!!Alo ng with his co -contributors, Lawrence argues that civil equality is not fully actualized without speech. And, likewise, speech can interfere with civil equality. And in just this way we see first amendment absolutism unjustifiably interfering with equality for all under the law. Speech that can be shown to interfere with civil equality should be unprotected . Richard Delgado and the call for a tort remedy A decade before the compilation Words That Wound , Richard Delgado published his path -breaking article of the same main title, ÒWords That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling.Ó 22 When critical race theory was in its infancy, Delgado was looking to social scientific research on the effects of racism to support the call for an i ndependent tort action for racial insults. A tort action is Òpermissible and necessary,Ó he argues, given the severity and pervasiveness of dignitary harm caused by racism. Racial insults are nothing but the vehicle of intentional harm and discriminatory practices . They have no other purpose and no political merit. The racial insult remains one of the most pervasive channels through which discriminatory attitudes are imparted. Such language injures the dignity and self -regard of the person to whom it is ad dressed, communicating the message that distinctions of race are distinctions of merit, dignity, status, and personhood. Not only does the listener learn and internalize the messages contained in racial insults, these messages also color our societyÕs inst itutions and are transmitted to succeeding generations. 23 In the above passage we see the same compelling historicizing and contextualization found in LawrenceÕs personal response to the Stanford Ujamaa incident. When the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!22 Ibid. Pgs. 89 -110. 23 Ibid. Pg. 90. !%+!!insult reaches a whole group of c itizens as its audience (intentional or otherwise), singled out by membership in an ÒaccidentalÓ category, it no longer holds to argue that the harm is mere offense. The message, as Lawrence echoed, is that Òdistinctions of race are distinctions of merit, dignity, status, and personhood.Ó Immediate mental or emotional distress is the most obvious direct harm caused by a racial insult. Without question, mere words, whether racial or otherwise, can cause mental, emotional, or even physical harm to their targ et, especially if delivered in front of others or by a person in a position of authority. Racial insults, relying as they do on the unalterable fact of the victimÕs race and on the history of slavery and race discrimination in this country, have an even gr eater potential for harm than other insults. 24 As is the case with the entire line of reasoning that leads one to argue for enlisting state authority, there is an argument from analogy here: Racial insults are enough like other forms of actionable speech Ð such as fighting words, defamation, and even physical abuse Ð that the regulation of it is Òpermissible and necessary,Ó meaning that regulation of racist speech (and hate speech in general, I think) is not mutually exclusive with first amendment ideals. Clearly, a society whose public law recognizes harm in the stigma of separate but equal schooling and the potential offensiveness of the required display of a state motto on automobile license plates, and whose private law sees actionable conduct in an un wanted kiss or the forcible removal of a personÕs hat, should also recognize the dignitary harm inflicted by a racial insult. I find it impossible to disagree with Delgado that a society that recognizes the Òpotential offensiveness of the required display of a state mottoÓ is incapable (or Ð yuck Ð unwilling) to recognize the significant social and political harm done by racist speech. A tort remedy would provide the Òpermissible and necessaryÓ legal redress for victims !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!24 Ibid. Pg. 94. !%,!!of racist speech and, more important ly, would ÒsayÓ that racism is a significant harm that ought not be tolerated. Racial insults do more than just describe a political position; they are intended to denigrate in a way that is historically supported by slavery, Jim Crow, eugenics, and the li ke. In this way, Delgado challenges the claim that first amendment ideals conflict with the regulation of racist speech. He explains, The values of individual self -fulfillment to be furthered through free expression are based on the rights of individuals t o develop their full potential as members of the human community. But bigotry, and thus the attendant expression of racism, stifles rather than furthers the moral and social growth of the individual who harbors it. In addition, a racial insult is only in s mall part an expression of self: It is primarily an attempt to injure through the use of words. 25 Elsewhere Delgado likewise notes the obviousness of intentional harm in the very use of ÒestablishedÓ racial insult terms. ÒNo other use remains for such word s as ÔniggerÕ, ÔwopÕ, ÔspickÕ, or ÔkikeÕ.Ó 26 It is important to note here that Delgado has already established the context in which these terms are uttered, and it is only in that context that Òno other use remainsÓ then the intention to harm, otherwise we may fall victim to what Butler calls a Òparadoxical redoublingÓ Ð her somewhat imprecise expression for the mention of the locution in the attempt to regulate the uttering of that very expression. In keeping with his co -contributors, Delgado provides a pr oposal with the requisite amount of specificity . When the tort action is brought, in order for the plaintiff to prevail, it must be shown that Language was addressed to him or her by the defendant that was intended to demean through reference to race; that the plaintiff !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!25 Ibid. Pg. 108. 26 Ibid. Pg. 94. !&-!!understood as intended to demean through reference to race; and that a reasonable person would recognize as a racial insult. 27 Within such parameters it would be expected that the highly racial epithet ÒYou dumb niggerÓ would almost alw ays be actionable, while the insult ÒYou incompetent foolÓ would not be actionable even when it is directed at a Black person by a white person and made in a highly insulting context. Likewise, Delgado thinks, when the term ÒBoyÓ is directed at a young Bla ck male, such an utterance might be actionable depending on the speakerÕs intent, the hearerÕs understanding, and whether a reasonable person would consider it a racial insult in the particular context. On the other hand, Òhey, nigger,Ó spoken affectionate ly, in solidarity, and as a greeting between Black persons, would not be actionable. And in the unlikely circumstance where the white plaintiff suffers harm from the insult Òyou dumb honkey,Ó the utterance could be actionable. All in all Delgado challenge s the law to acknowledge the substantial, unconscionable harm done not only to individuals within our ÒequalÓ society but also to the community at large by Òintending to demean through reference to race.Ó In so many ways we have already begun the process o f undermining the legitimacy of racial insults; and, yet, imagine what could be done when the law backs up the sentiment. In a step beyond LawrenceÕs call to extend the fighting words exception and DelgadoÕs call for a tort remedy, Matsuda argues for th e legal and ethical basis for the criminalization of racist speech. As I discuss in the following section, she constructs a policy of evidence that proposes to pick out actionable racist speech from non -!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!27 Ibid. Pg. 109. !&$!!actionable racist speech. Her model provides what it would actually look like to identify Ð effectively and consistently Ð the offending speech by a legal system. Mari Matsuda and the criminalization of racist speech The driving motivation behind criminal law (including criminalizing acts of speech) is the presumption that such criminalization is a Òcollective investmentÓ in justice and social order. Public legislation (as opposed to private legislation) is crafted and enforced in an attempt to establish and maintain a just society. In Public Response to Rac ist Speech: Considering the VictimÕs Story , Mari Matsuda makes the case for the criminalization of certain narrowly defined racist utterances given that racism (through whatever mechanism, including speech) interferes with justice and social order. Thus, an absolutist commitment to first amendment ideals in the face of racist hate speech has the effect of perpetuating racism . As she says, ÒRacist speech is particularly harmful because it is a mechanism of subordination, reinforcing a historical vertical relationship.Ó 28 So, not only is an absolutist approach to racist speech misguided, criminal sanctions Ð not merely civil remedies Ð are an appropriate response to racist speech. Civil remedies are ÒprivateÓ remedies (e.g., tort actions); the criminalization o f speech is a ÒpublicÓ response to racist speech (the title of her article). A public remedy is called for, Matsuda explains, in response to racist speech once we acknowledge the interplay between the first and fourteenth amendments and our duties as a pol ity to both. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!28 Ibid. Pg. 36. Note here the attention to, though not explicit reference to, Austinian illocutionary force. !&%!!MatsudaÕs own familial history provides an important part of the context of her analysis: her parents were labor and civil rights activists who paid a price for their unpopular beliefs during the McCarthy period. Her own experience with censor ship, intimidation, and blacklisting helps to contextualize her push to criminalize racist speech. She is mindful of her parentÕs plight and, thus, draws an important distinction between hate speech (that which is directed at the least powerful segments of our society) and other forms of ÒunpopularÓ speech (including ÒreverseÓ racism). She is mindful of the well -established history in this country of censoring those on the edges of society. A public remedy is called for in response to racist speech only by contextualizing and historicizing the first and fourteenth amendments Ð a context and a history found by shifting to an outsider jurisprudence. [I] suggest that outsider jurisprudence Ð jurisprudence derived from considering stories from the bottom Ð will help resolve the seemingly irresolvable conflicts of value and doctrine that characterize liberal thought. I conclude that an absolutist first amendment response to hate speech has the effect of perpetuating racism: Tolerance of hate speech is not toleran ce borne by the community at large. Rather, it is a psychic tax imposed on those least able to pay. 29 This outsider jurisprudence includes looking to the victimÕs stories as evidence of the real consequences of current legal interpretation. Her argument f or the criminalization of racist speech is supported by victim testimony Ð testimony that elucidates the substantial injury that racist speech inflicts on its targets. The victimÕs story is a story of the effects of racist speech. She calls for an attentiv eness to the epistemic authority of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!29 Ibid. Pg. 18. !&&!!the targets of racist hate messages; it is testimony of the victim of racist hate messages who can most effectively say what constitutes the injury of those messages. Additionally, Matsuda argues that current interpretat ions of the first amendment are flawed. As we see throughout Words That Wound , an ahistorical and acontextual analysis of first amendment protections contributes to racism, is not in keeping with our national (and international) commitments to equality, an d ought to be abandoned for a historical and contextual analysis. Matsuda explains: The choice of public sanction, enforced by the state, is a significant one. The kinds of injuries historically left to private individuals to absorb and resist through pri vate means are no accident. The places where the law does not go to redress harm have tended to be the places where women, children, people of color, and poor people live. The absence of law is itself another story with a message, perhaps unintended, about the relative value of different human lives. A legal response to racist speech is a statement that victims of racism are valued members of our polity. 30 It is MatsudaÕs commitment to the epistemic authority of the victimÕs stories that speaks loud and clear: The targets of racist speech (even as peripheral audience members) experience such speech as racism. Laws that protect racist speech legitimate racist conduct . Laws that criminalize racist speech criminalize racist conduct . The message of the latter claim is that racism is seriously not ok. Target group members know that messages of racial hate are located in a notorious history of racial violence and t hat they are only meaningful in virtue of that history. As Matsuda notes, the manager who instructs his African -American employee to just ignore the random acts of assaultive (often anonymous) speech by his co -workers !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!30 Ibid. Pg. 18. !&'!!as Òharmless jokesÓ or Òjust letting o ff steamÓ is often unaware of the historical and contextual location of those Òjokes.Ó 31 Those managers, often people of a certain privilege, are neither tuned to nor operating within outsider jurisprudence. Harassment on the basis of race is related to, bu t significantly distinct from harassment on the basis of shoe size. Calling a name like ÒfagÓ is related to, but significantly distinct from calling a name like ÒteacherÕs pet.Ó It may hurt to be identified by your colleagues as having some undue favor wit h the higher -ups but it does not perform dignitary injury to the same degree as getting identified as the ÒwrongÓ race or the ÒwrongÓ sexuality. Matsuda, like Lawrence, is well aware of the legitimate risks involved in extending the scope of unprotected s peech . On the one hand is continuing the protection of racist speech and bigoted ideas and on the other is limiting the free flow of productive ideas . Limiting free speech runs the risk of silencing the already too often under -empowered minority with an ex tension of the scope of unprotected speech . Thus, Matsuda recognizes and defends a narrow definition of actionable racist speech . I believe racist speech is best treated as a sui generis category, presenting an idea so historically untenable, so dangerou s, and so tied to perpetuation of violence and degradation of the very classes of human beings who are least equipped to respond that it is properly treated as outside the re alm of protected discourse. 32 Matsuda proposes this definition while acknowledging that any proposal stretches the scope of first amendment protection and that any such extension weakens the first amendment. She hopes that a narrow definition of what kind of racist speech is !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!31 Ibid. Pgs. 22 -24. 32 Ibid. Pg. 35. !&(!!actionable will better protect free speech. On her view, actio nable racist speech must meet three identifying characteristics: (1) the message is of racial inferiority; (2) the message is directed against a historically oppressed group; (3) the message is persecutory, hateful, and degrading. 33 Similar to the juridical structure of the various first amendment exceptions, Matsuda provides a clear category of speech that can be applied to identifiable circumstances with some specificity, while avoiding the criminalization of all forms of speech that could be qualified as racist speech. Under these narrowing elements, arguing that particular groups are genetically superior in a context free of hatefulness and without the endorsement of persecution is permissible. Satire and stereo typing that avoids persecutory language remains protected. Hateful verbal attack upon dominant -group members by victims is permissible. These kinds of speech are offensive, but they are, in respect of first amendment principles, best subjected to the marke tplace of ideas. This is not to suggest that we remain silent in the face of offensive speech of this type. Rather, the range of private remedies Ð including counterspeech, social approbation, boycott, and persuasion Ð should apply. 34 This definition would have helped the courts of Skokie, IL argue that a public Klu Klux Klan march can (and ought to) be regulated on grounds that the message is one of racial inferiority Ð Òall members of the target group are at once considered alike and inferior.Ó 35 In consi deration of the larger dialogue, Matsuda asks how one can argue for censorship of racist hate messages Òwithout encouraging a revival of McCarthyism?Ó And she answers, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!33 Ibid. Pg. 36. 34 Ibid. Pgs. 36 -37. 35 Ibid. Pg. 36. !&)!!We know, from our collective historical knowledge, that slavery was wrong. We know whi te minority rule in South Africa is wrong. This knowledge is reflected in the universal acceptance of the wrongness of the doctrine of racial supremacy. There is no nation left on this planet that submits as its national self -expression the view that Hitle r was right. ÉAt the universities, at the centers of knowledge of the international community, the doctrines of racial supremacy and racial hatred are again uniformly rejected. At the United Nations the same is true. We have fought wars and spilled blood t o establish the universal acceptance of this principle. The universality of the principle, in a world bereft of agreement on many things, is a mark of collective human progress. The victimÕs perspective, one mindful of the lessons of history, thus accepts racist speech as sui generis and universally condemned. 36 Like Matsuda, and MacKinnon (as we shall see), I too believe that the capacity to distinguish subordination (done through speech) from its counterparts Ð with some regularity and some consistency Ð is not out of reach. Even though I do not argue for the criminalization of racist speech, I see no good reason to reject the outsider jurisprudence that Matsuda suggests. Contextualizing and historicizing the application of the law is simply one important piece of living in community rather than against it. The resounding, compelling assertion is that racism in America is long standing, pervasive, and infectious . The critical race theorists of Words That Wound claim that history and context have always and continue to infuse the legal system and that this infection dictates what private citizens can expect as legal remedy for injuries sustained . And, perhaps most importantly, these theorists explain that the injury in racist speech is performative , even thou gh we would do better to locate the harm more precisely as illocutionary force. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!36 Ibid. Pg. 37. !&*!!Section III: WhatÕs wrong with enlisting state power? When given an Austinian treatment, we see that the Enlisters provide an argument for the illocutionary force of hate spee ch to harm in the very uttering of the racial slur. Some form of regulation or redress is warranted, if not obligatory. I agree with the Enlisters to wit but conclude that utilizing first amendment exceptions to combat the harm in hate speech is conceptual ly problematic and strategically untenable. First amendment exceptions (such as the fighting words or obscenity doctrines, along with MatsudaÕs proposal to criminalize certain racist utterances) tend to be seen as a form of regulation that verges on prior restraint, in that certain ut terances are singled out and not protected before they are ever uttered. And this is where these theorists bump up against the accusation of censorship. Regardless of whether or not their proposals are properly characterized as censorship (I, for one, think there are more precise and charitable ways of describing their proposals), enlisting state power to regulate or restrict speech is problematic on both a conceptual and political level. The conceptual problem is that their pro posals attempt to restrict words or phrases or the utterances themselves and this mislocates the harm in hate speech. The political problem arises from our unparalleled commitment in this country to Òfree speech,Ó which makes tackling the first amendment an untenable strategy. Not to mention that restricting speech often coincides with burdening the least well off with even more infringement on their civil rights, and on that count alone it s hould be considered cautiously. In the search for responsible avenues of recourse to the harm in hate speech, we find little that is viable. This very fact h as led many to enlist state power as a means of !&+!!providing authoritative support against oppression as it arises in and through speech. As Delgado notes, Victims of racial invective have few means of coping with the harms caused by the insults. Physical att acks are of course forbidden. ÒMore speechÓ frequently is useless because it may provoke only further abuse or because the insulter is in a position of authority over the victim. Complaints to civil rights organizations also are meaningless unless they are followed by action to punish the offender. Adoption of a ÒtheyÕre well meaning but ignorantÓ attitude is another impotent response in light of the insidious psychological harms of racial slurs. When victimized by racist language, victims must be able to t hreaten and institute legal action , thereby relieving the sense of helplessness that leads to psychological harm and communicating to the perpetrator and to society that such abuse will not be tolerated either by its victims or by the courts. 37 Given our collective history, the international movement toward regulating hate speech, and the inexorable link between speech and equality, the call to enlist judicial authority to restrict certain speech acts is reasonable, at the very least. The suggested remedie s are reasonable, that is, but not satisfying Ð they are not ÒunriskyÓ enough , not politically workable enough of the time and with enough assurance that their implementation will not be misused. The call to combat the harm in hate speech through legislati on is simply not good enough when the larger picture is the upending of subordination through speech. I have argued that the supporters of hate speech legislation featured here all rely on a conception of speech and meaning that is distinctly Austinian . Th ey argue that racist speech reinstantiates Blacks as inferior to whites in the very uttering of the words Ð racist speech is racism . Their theories diverge at the point where they believe the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!37 Ibid. Pg. 95. !&,!!constitution already provides a remedy . Lawrence and Delgado foc us on the fact that the scope of protection afforded by the first amendment already does not extend to many areas of speech, most notably Òfighting w ords.Ó Lawrence provides a revision of the fighting words doctrine to include racist speech that is also su pported by DelgadoÕs earlier analysis of the psychological and political effects of racial insults. Matsuda , also giving voice to the victimÕs experience, argues that extending the fighting words doctrine or proposing a tort remedy is not enough Ð racist s peech is racism and, thus, our commitment to civil equality dictates its criminalization. In this way, weÕll see an alignment between MatsudaÕs argument and Mac KinnonÕs Ð both theorists are clear that first amendment legislation must attend to the fourteen th amendment (although it currently does not). MacKinnon argues that pornography is not best described as speech Ð it is not merely the Òe xpressionÓ of ideas Ð pornography is the subordination of women . All of these theorists offer compelling, deeply perso nal examples that show the power of speech to construct and constitute human lives. Perhaps most importantly, all these theorists presuppose that the law can influence and even change the hearts, minds, attitudes, and behavior of its citizens . In fact, the Supreme Court said as much when it struck down the Defense of Marriage Act in June 2013. The majority opinion, written by Justice Kennedy, acknowledges the power of the law to ÒtellÓ citizens that they are not of equal value (in this case, when their marriages are not recognized). Kennedy wrote, Ò DOMA undermines both the public and private significance of state -sanctioned same -sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal !'-!!recognition .Ó38 Althoug h the case turned on whether or not DOMA violates the due process clause of the Fifth Amendment and, alas, not on whether DOMA violates the Fourteenth Amendment, it is notable that the majority opinion explicitly acknowledges the illocutionary force of ena cted law. ÒThe lawÓ has the right authority to legitimate the behaviors that it allows and denigrate the behaviors that it does not. This claim seems intuitively clear to me . The best arguments for the legal regulation of hate speech understand that the la w has the power to legitimate racist, sexist, homophobic, classist, and so on, behavior . It can either protect the status quo or influence real, social change . As mentioned above, a conceptual challenge to all of the above is that such proposals must loc ate the harm of the utterance in the locution rather than the illocution . In other words, the simplest way to legally address hate speech is to tell the citizens what they can and cannot say. DelgadoÕs piece highlights this best when he equates racial insu lts with the use of racial terms, as he says, Ò[R]acial insults differ from ordinary, nonactionable insults precisely because they use racial terms for the purpose of demeaning the victim.Ó 39 Further on he distinguishes between the epithet ÒYou damn niggerÓ and the insult ÒYou damn fool.Ó The former actionable and the latter not, even when directed at a Black person by a white person in a context that makes the utterance highly insulting. I confess, I stand solidly behind the assertion that there is a signif icant difference between the epithet and the insult and I believe the distinction is not too difficult to identify and, thus, not impossible to regulate. And, yet, given that the harm in hate speech is not located in the locution, the illocutionary force o f hate speech (and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!38 United States v Windsor 570 U.S. 2013. Docket No. 12 -307. 39 Ibid Delgado et al. Pg. 107. !'$!!its insidious form of harm) is not yet satisfactorily addressed by the call for legislative intervention. !'%!!Chapter 2 : Censorship, Silencing, and the Construction of Social Reality : The Dworkin -MacKinnon Anti -Pornography Ordinance and the Illocutionary Force of Subordinating MacKinnonÕs call for state intervention is sufficiently unlike the call m ade by the author s of the previous chapter, and we make a category mistake when we lump all of these various proposals for enli sting state power together Ð especially when we call them all Òcensorship.Ó In the following chapter I wish to show that to call the Dworkin -MacKinnon anti -pornography ordinance censorship is a mistake; but, more importantly, that pornography does have the force of subordination and, in light of that fact, the onus is on us to construct some form of politically viable and ethically tenable response to its harms. In Only Words , MacKinnon argues, quite persuasively, that pornography harms women and the har m is significant enough to warrant legal action against pornography. The specifics of her proposed legislation will be addressed further down. The point I wish to make here is: if it is shown that pornography is a significant harm to women Ð and I think th at it is Ð then some form of redress is warranted, whether or not that response is legal in kind. So, first, we must answer the question: What does it mean Ð precisely Ð to say that pornography significantly harms women? It helps to note here that a speci fic conceptualization of pornography is at hand. (She is not addressing all phenomena that may be considered, in one context or another, to be pornography.) MacKinnon tells us that she will address pornography as: [T]he graphic sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities, enjoying pain or humiliation or rape, being tied up, cut up, mutilated, bruised, or physically hurt, in postures of sexual !'&!!submission or servility or display, reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes t hese conditions sexual. 40 MacKinnonÕs purpose is to get at the images and acts that contribute to womenÕs oppression. MacKinnonÕs conception of the harm done in pornography is that pornography subordinates. This deceivingly simple claim, when unpacked, is quite complex. The thrust is that pornography not only perpetuates womenÕs subordinated status (a perlocutionary effect), but that it is Ð in and of itself Ð a way in which subordination is done (an illocutionary act). Pornography is subordination, accord ing to MacKinnon, and it is this claim, when unpacked, that identifies pornography as a speech act with a certain illocutionary force. In ÒSpeech Acts and Unspeakable Acts,Ó 41 Langton clarifies the claim that pornography subordinates by introducing the concepts of ranking, legitimating, and depriving. As we shall see, pornography subordinates in that it has the illocutionary force of ranking women as inferior, legitimating disc riminatory behavior against them, and depriving them of rights and power. Ranking , legitimating, and depriving are illocutionary verbs Ð all of which identify acts that can also have the effect of silencing (a perlocutionary consequence) . Langton argues t hat the harm in pornography is that it subordinates women in the very uttering of it (an illocutionary act) and it silences women (a perlocutionary act). This is where things get tricky: Langton fails to emphasize the way in which silencing is !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!40 Dworkin, Andrea and MacKinnon, Catharine. 1988. Pornography and Civil Rights: A New Day for WomenÕs Equality . Also at: http://www.nostatusquo.com/ACLU/dworkin/other/ordinance/newday/AppD.htm 41 Langton, Rae. 1993. Speech Acts and Unspeakable Acts. Philosophy and Public Affairs 22:4. !''!!done in the illocutionary force of the pornographerÕs speech Ð it is not merely an effect of speech. All subordinating act s have a silencing tendency. Being placed in a subordinated social position comes with a lack of authority and a lack of authority means that one is less likely to speak, less likely to get heard, and less likely to get their speech acts to count as the actions they intend to perform. Note the various ways that the speech acts of some can silence the speech of others and this is not just a perlocuti onary effect Ð there is an illocutionary dimension at work here as well (as we shall explore in more detail later on). Silencing Ð in its many forms Ð is part of the subordination of women done in and by pornography. (Both Langton and MacKinnon would agree , though their respective arguments would benefit from making this connection clear.) When we shift our focus from the speaker to the hearer in these cases we see that some speech can actively silence the speech of others. When pornography is protected as speech then those harmed by pornography are kept from effectively saying that they are harmed Ð at least in any way that matters. WomenÕs civil standing is minimized (if not made non -existent) when the speech of pornographers is protected as free expressio n. The beauty of the Dworkin -MacKinnon anti -pornography ordinance is that it establishes a more equal civil standing for those harmed by pornography Ð it gives women a voice. !'(!!Section I: The way pornography harms: the intersection of subordination and silencing Speech acts and subordination In the previous chapter we saw that Pilot is picked for the team when Captain Orange utters, ÒI pick Pilot.Ó The locution Ð I pick Pilot Ð is used by the Captain to place Pilot as a willing participant (in this con text ) into a group. Now imagine a small but significant variation to the context Ð imagine that Captain Orange is in charge of picking this yearÕs varsity players from amongst the gathered members of Team Apple. In this new context, when Pilot is picked th e picking is also a ranking along a hierarchy so far as varsity is meant to be the ÒbetterÓ or Òhigher levelÓ players. Choosing players for varsity when there is a junior varsity is a form of ranking the players Ð some as superior to the others Ð the repercussions and social ramific ations of which will be different for different cultures, but the hierarchical ranking happens nonetheless. The same locution Ð ÔI pick Pilot Õ Ð is used in both contexts with significantly different results. The results are different because the illocution ary act is different. Subordination is (among other things) the act of placing something in a lower rank or position. Ranking is a type of speech act Ð it is something that can be done through speech and, on occasion, alone in speech. If Captain Orange is choosing members of the varsity team, and Pilot gets picked, then a type of ranking has happened in the very uttering of ÒI pick Pilot.Ó As far as pornography is a speech act, pornography is the subordination of women. MacKinnon argues as much in her un derstanding of pornography as telling us where women belong Ð namely, what women are meant to do and to be for men Ð much !')!!in the same way that sexualized utterances, in certain speech contexts (such as the workplace), constitute harassment. Our judicial sy stem finds no inconsistency in the idea that telling your employee thereÕs a sexual price for promotion is understood as more than Òonly wordsÓ even though only words are used to do it. Sexualized utterances are, in cer tain contexts, harassment. L ikewise, MacKinnon et al understand pornography as ranking women as inferior to men. As Rae Langton notes, ÒThe claim that pornography subordinates women, however interpreted, is a claim that pornography determines womenÕs inferior status.Ó 42 PornographyÕs subordina ting force, MacKinnon argues, is evidenced by (at a minimum) the correlation between the viewing of pornography and the physical and psychological abuse of real women. But this is a causal claim Ð that viewing pornography leads to to the abuse of women (not in every case but epidemiologically, so to speak) . And here is where Langton steps in to support the claim that there is more than a perlocutionary act associated with pornography. It is shown that pornography is harmful (quite literally) and that harmfu lness is constituted, in part, by the speech act of subordination . In the following pages I address the claim that pornography ÒsaysÓ more than women are sex objects Ð it does more than depict subordination, pornography is subordination. Speech acts and silencing The claim is that pornography harms women. The exact nature of that harm, it is argued, is twofold: pornography subordinates women in the very Òuttering Ó of it and it !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!42 Ibid. Pg. 298. !'*!!silences women. The claim that pornography subordinates in the very uttering is a claim that pornography as speech act has a certain illocutionary force. 43 The silencing that is part and parcel of subordination, once unpacked, is easy to see in the context of pornographyÕs harms: The authority of the pornographerÕs voice overshadows whatever counterspeech women might use to reject or deny the claims made in pornography. In other words, protest is made but nothing comes of it. Likewise, the consistent protection of pornography as speech by our national judicial system legitimizes what pornography has to say as well as lending it even more authority to say what it has to say (note here that we have the legitimization of a select group of behaviors/attitudes toward women with the persistent protection of the perpetratorÕs speech) . This ty pe of silencing is a result of the pornographerÕs speech (a perlocutionary effect). But yet another type of silencing of women happens with the pornographerÕs speech; a type of silencing that is subtler, less transparent. When we say that one has been Òsi lencedÓ the image that comes to mind is one of a speaker that has been kept from speaking Ð speech was cut off or stopped before it could be fully heard. If I keep you from being heard Ð I yell over you, or interrupt, or blare music while youÕre speaking, or tape your mouth shut Ð then I have silenced you, my act is silencing yours. The same goes for the silencing of a group or institution. The parameters are different, the ÒspeakerÓ is metaphorical, but the concept is the same: The speech act is kept from being heard; the group is silenced. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!43 The use of the term ÔutteranceÕ and its varying iterations is purposeful and in keeping with AustinÕs development of speech act theory. The term c aptures both verbal and non -verbal speech acts, with an emphasis on the act involved. !'+!!But thereÕs another mode of Òsilen cing,Ó another means of keeping someoneÕs speech from being heard that is more insidious, subtler. You speak but your utterance is not taken to be what you intend for it to be. Here weÕre talking about illocutionary acts, not about linguistic meaning. You donÕt get to do what you intend to be doing. Or you get taken to have done something other than what you intended to do. So, in other words, you do not mispronounce, you are not inaudible, your speech gets physically heard but not understood as what you in tend. In AustinÕs terminology, the problem is a lack of appropriate uptake from the audience; or, from the speakerÕs perspective, the speech act misfires. Consider an example (from Donald Davidson) 44: When an actor on a stage recites the lines of the play Ð ÒFire! I mean it, thereÕs a fire!Ó Ñ if the audience rightfully takes her to be performing a piece of the play, the performance is what it is supposed to be; Austin would say it comes off without a hitch. Now imagine that moments later there really is a fi re in the back of the theater that the actor has noticed and now she means to warn the audience with her utterance ÒFire! I mean it, thereÕs a fire!Ó The audience, we imagine, does not take the speaker to be warning with this second utterance. Her words a re interpretable, audible, she doesnÕt mumble or jumble them up, and yet she is not understood as doing what she intends for her speech to do. The speech act is done but does not get taken up appropriately Ð the aud ience isnÕt alerted to the fire even thou gh she does everything the context calls for Ð her speech act misfires. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!44 Davidson, Donald. 1984. Communication and Convention. In Inquiries into Truth and Interpretation. Oxford: Oxford University Press. 269. !',!!Given pornographyÕs pervasive maintenance of a particularly damaging social and sexual climate, it turns out that the context of womenÕs speech acts regarding sex is set up for a part icular perversion of uptake: a womanÕs ÒnoÓ gets read as Òyes.Ó In much the same way that the actor on a stage does not get to warn the audience even when she screams the right words Ð because the conditions that constitute acting in a play dictate what he r words get taken to be from the audience Ð women too often do not get to say what they want from their sexual encounters . She can scream ÒfireÓ and people will laugh. Catharine MacKinnon, Andrea Dworkin , Rae Langton and others have talked about the force of pornography to silence women. It is this second, Austinian sense of silencing at work against women in a population saturated by pornography to which they refer . MacKinnon argues that pornography cont aminates our entire social space with false teaching about women . The pornographerÕs message is like smog in the air, even if you donÕt always notice, itÕs there, infecting every single thing that takes it in. 45 Rae Langton characterizes this second mode of silencing as Òillocutionary disablementÓ Ð you speak but are not taken to be doing what you intend to be doing .46 The pornography industry (as speaker) silences women by creating and perpetuating the conditions of their illocutionary disablement. The illoc utionary force of some utterances is to foreclose the possibility of effective responses on the part of the hearer .47 Actually, illocutionary disablement on a personal level is quite familiar to us Ð ÒThe !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!45 This is a variation of Beverl y TatumÕs example in ÒDefining Racism: ÔCan We Talk?ÕÓ (1997). 46 Langton, Rae. 1998. Subordination, Silence, and PornographyÕs Authority. In Censorship and silencing: Practices of cultural regulation , ed. Robert Post. Los Angeles, CA: Getty Research Institute. 47 WeÕll see more on foreclosure when we turn to Judith Butler. !(-!!lady doth protest too muchÓ Ð she is read as protest ing too much and thereby cannot protest at all in the sense that she is unable to secure the appropriate response from the audience. For instance, apologizing is a type of illocutionary act Ð an important one, in fact, for the sustaining of good relationsh ips. Now imagine a context in which one says (seriously but lovingly) to her partner, ÒI need you to apologize .Ó The partnerÕs response (even when she is genuinely sorry and it is, in fact, an apology) does not have the full force of an apology simply because it is in response to a solicitation Ð all that she gets to do is apologize at my request . She may be genuinely sorry, but the full force of the illocutionary act I wanted her to perform (and that she too wanted to perform) is foreclosed by my origi nal utterance. Silencing and the construction of social reality Austin pointed at the constructive power of speech acts (and the resulting problem of illocutionary disablement ) with his distinction between exercitive and verdictive speech acts. 48 Exerciti ves and verdictives are each a sub -class of illocutionary speech acts; these sub -classes identify the force of certain utterances that perform a given action even when that action does not directly match the saying. Remember that i llocutionary speech acts do something in the very uttering of the words. Sometimes the illocutionary act is explicit in that the act is itself what the words say, as in ÒI promise.Ó Other times the illocutionary act is not explicit, as when a promise is made by saying, ÒIÕll be th ere.Ó In the latter example, we say the illocutionary force of the utterance is to promise, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!48 Austin, J.L. 1962. How to do things with words. Oxford: Oxford University Press, Lecture XII. !($!!despite the fact that the utterance is only understood as a promise within a specific context, itÕs not explicit. These names are meant to capture the force of cert ain utterances that perform in the very uttering of the words. More specifically, exercitives and verdictives are two types of illocutionary force . Austin describes his distinction in the following, from How To Do Things With Words: The first, verdictives, are typified by the giving of a verdict, as the name implies, by a jury, arbitrator, or umpire. But they need not be final; they may be, for example, an estimate, reckoning, or appraisal. It is essentially giving a finding of something Ð fact, or value Ð which is for different reasons hard to be certain about. The second, exercitives, are the exercising of powers, rights or influence. Examples are appointing, voting, ordering, urging, advising, warning, etc. 49 When Captain Orange says, ÒI pick Pilot,Ó Pil ot is thereby picked. But, of course, the picking can also be done in saying ÒYouÕre in!Ó to Pilot, among other iterations. Though the locutions are different Ð the first is an explicit performative Ð both have the illocutionary force of constituting reality in a certain way. The world moves to fit the word. The type of constituting that is done with exercitive speech acts is exemplified by the above example and the following: When the boss says to the employee, ÒY ouÕre fired, Ó you are thereby fired Ð the r e-alignment of your social status is done by the speaker in the speaking. This is what is meant by the claim that social reality is constructed through speech. In the very saying of the words the world becomes such that you are no longer employed. Likewise , when an employer says, ÒYouÕre hired,Ó the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!49 Ibid. Pg. 151. It is interesting to note that Austin lists both ÔdegradeÕ and ÔnameÕ as exercitive speech acts. !(%!!world becomes such that you are now employed when before you were not, at least not by this particular employer. Your social placement, your identity, what you are as a social being, is altered. The employerÕs d ecision may be misguided or ill -founded, but it is still the case that you are hired in the very uttering of the words. The employer can change her mind, but since you were hired in her previous speech act , when she changes her mind she now has to fire you . She may fire you simply by saying ÒOops, I made a mistake, never mindÓ but now it is a firing nonetheless. The social construction that is done by the illocutionary act can only be undone by an additional illocutionary act. There are a variety of speech acts that do some work to construct reality in another way Ñthe verdictives Ð but the construction is not constitutive of the speech act as is the case with exercitives. The referee calls the ball ÒoutÓ and the direction of the game changes Ð reality adjust s. Unlike the bossÕ firing, however, the ball is not out because the referee says it is out. The ball gets counted as being out because the referee says it is out; the ball is out because itÕs over the line, and itÕs over the line not because the referee says so but because the player hit it so. A picture of the play can show that the referee made the wrong call, and the direction of the game can be adjusted in accordance with this new information. It is still the case that the refereeÕs speech act matters in a way that the very same utterance made by a fan in the stands does not. Leslie Green and Rae Langton, in a debate over pornographyÕs power to subordinate and silence, wor k through a thought experiment Ð one that Green !(&!!introduces and Langton responds to Ð about pornographyÕs authority and jurisdiction. 50 Green introduces us to Max and Mick, both gay men, one Catholic and the other Jewish, living in a liberal society with a f air amount of religious freedom where Roman Catholics are the minority. Green asks what authority and scope the Catholic Church has when its VIPÕs authoritatively say that homosexuality is an Òobjective disorderÓ and an Òintrinsic moral evil.Ó Green sugges ts that these utterances clearly subordinate Mick, a gay Catholic, who takes the teachings of the Church to be his own. For Mick, the Church is an authority on morality and has jurisdiction over him as a Catholic. In this case, authoritatively saying so ma kes it so. These utterances subordinate Mick not merely because the Church, being a powerful institution, has a certain authority in general, but also because Mick himself takes the Church to have authority in the relevant arena. But is this also the case for Max? Is Max, a gay Jewish man, subordinated by the ChurchÕs utterances? Green suggests no, Max is not subordinated by the ChurchÕs utterances, at least not with the same immediacy as Mick. MaxÕs situation depends more on the social context, since he do es not see the Church as an authority on morality and he does not take the ChurchÕs teachings to apply to him, whether or not Max is subordinated depends upon whether or not other Catholics in his community have some authority over Max. For instance, if Ma x lived in a community without a liberal constitution or without reasonable religious freedom, and where Roman Catholics were a majority rather than a minority, then we could assume that some who believe homosexuality is an objective disorder would have th e power to hire !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!50 Green, Leslie. 1998. Pornographizing, Subordinating, and Silencing. In Censorship and silencing: Practices of cultural regulation , ed. Robert Post. Los Angeles, CA: Getty Research Institute. !('!!or fire Max, to control his education, to deny him the chance to marry, and so on. Now, given all this, Max is still not subordinated in the original imagined community. This is not to say, however, that Max does not potentially suffer cert ain perlocutionary effects of the ChurchÕs speech act. He may feel ashamed or anxious or angry because the Church purports to subordinate him, even while living in a community that often endorses speech counter to the ChurchÕs utterances. But, unlike Mick, Max is not subordinated in the very uttering of the words, unless the total social context is on the side of the Church. Green concludes that the power to subordinate in the uttering of some words is not simply a function of the words themselves, or of th e perceived authority of the speaker, but also of the social context in which the words are uttered. 51 This claim is not much different from AustinÕs claim that the Òtotal speech situationÓ must be analyzed in order to deduce the illocutionary force of a gi ven utterance. Langton develops what Green introduces to further illuminate the scope of pornographyÕs authority. Langton introduces AustinÕs categories of illocutionary force Ð exercitives and verdictives Ð into the example of Mick and Max to further clar ify exactly how the ChurchÕs utterances may construct the social reality of both men . There is more than one means and more than one degree to which authoritatively saying it is so can make it so. Consider the context, once again, of pornographyÕs scope: E ven if I , myself, see pornography as only verdictive in its force , that does not mean I am thereby not socially constructed by it in an exercitive way. The way that pornography enters my !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!51 Ibid. Pg. 294. !((!!conscious life may be minimal Ð perhaps only in that I see that it sa ys IÕm supposed to be a certain way but I donÕt agree and I donÕt take that on. Alas, my belief doesnÕt keep me from being socially constructed in my everyday life by pornographyÕs exercitive force. (We will return to this example when discussing ButlerÕs claim that the speech act is thought to be sovereign.) If the force of pornography is pervasive enough then I will suffer the illocutionary disablement that comes along with the smog. When I say exercitive speech acts are subordinating IÕm saying that the y are constructive Ð the world comes to fit the word, not the other way around. To say that the speech acts of pornography subordinate is to say that they have the exercitive force of putting a whole group of people Òin their placeÓ in the same way that th e bossÕ speech act is the firing or hiring Ð the world comes to fit the word in the uttering. 52 The underlying idea in MacKinnon is that we can figure out how to respond to pornography as harmful without sliding down the proverbial slippery slope to broad censorship of, letÕs say, Toni MorrisonÕs The Bluest Eye . The courtÕs interpretation of first amendment protection of pornography as speech has only considered child pornography (and only child pornography featuring boys, at that) as Òbeing someoneÕs lifeÓ before it was the pornographerÕs speech. 53 But subordination is subordination, MacKinnon argues , and if subordination is present in pornography with adult women then, via analogy, the harm warrant s redress. More importantly, MacKinnon presents the idea for why it is important that some sort of legal recourse be made available. The understanding is: The law legitimates certain behaviors and delegitimates others simply !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!(%!The idea that a speech act can have the force of putting one Òin her placeÓ is an idea I return to in my final chapter on hate speech acts and ways to actively intervene. 53 New York v Ferber. 1982 !()!!by ÒsayingÓ what it says. Unqualified protection of pornography organizes its acts of subor dination without exception. It is the perlocutionary harm in virtue of which the act is actionable Ð proof of coercion, having bruises or broken bones, and so on. What matters to the law is t he harm that is shown to be the result of pornography Ð but this is because the law is crude and requires ÒproofÓ of harm. The illocutionary act of pornography silences, especially with its unqualified protection by the first amendment Ð the silencing is the subordination. If pornography is a type of speech Ð and first amendment legislation has resolutely determined that it is speech Ð then pornography is one pervasive and influential example of Òwords that wound.Ó According to Austin, all speech is a kind of act Ð even the recitation of lines in a play is just that, the recitation of lines in a play. In addition to the legal definition of pornography as speech, the U.S. court system has continually acknowledged that pornography is a kind of act that has certain effects. In fact, the legislative support is already there f or the (Austinian) claim that pornography is a kind of act with a certain perlocutionary outcome. 54 If pornography is speech and a kind of act, then pornography is a kind of speech act. And once we consider pornographic images and texts as speech acts, as L angton notes, Òwe are in a position to apply to them AustinÕs distinctions between locutionary, illocutionary, and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!54 In American Booksellers v Hudnut (771 F.2d 329, 7 th Cir. 1985), Judge Frank Easterbrook concluded that the anti -pornography ordinance was unconstitutional but accepted the premises of the ordinance, saying that pornography depicts the subordination of women and that depictions of subordination Òtend to per petuate subordination. The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets.Ó He concluded that this Òsimply demonstrates the power of pornography as speechÓ and, thus, t he ordinance was unconstitutional. !(*!!perlocutionary acts.Ó 55 The argument for how pornography harms women is an argument for the power of words (speech acts) to perpetuate hate an d determine the ÒstatusÓ Ð social and political Ð of women. Section II: Pornography as hate speech and hate speech as actionable under the law Considerations of various proposals for enlisting the power of the state to address the harm in hate speech, suc h as those of Delgado and Matsuda, lead nicely to a consideration of the Dworkin -MacKinnon anti -pornography ordinance. First and foremost, the model ordinance is a critical (albeit controversial and not yet successful) example of enlisting state power to c ounteract oppression. It is an important example of an attempt at legislation meant to address subordination done through speech. As I have said previously, the world is such that navigating various social groups (and being ÒgroupedÓ by others) Ð along lin es of varying social and political import, arranged hierarchically Ð is a fact of life. In this world, subordination is something that happens and sometimes that subordination is done through speech. MacKinnonÕs work, especially in Only Words , addresses cu rrent first amendment policy in the U.S. and the repercussions of its hegemonic application. The Dworkin -MacKinnon anti -pornography ordinance is an attempt to counter hate speech using means available within U.S. legal doctrine as it is current ly structure d and interpreted. Allow me to note, briefly, that I believe t here is something to be said for working within rather than outside or against what is already the case: I see MacKinnon and Dworkin et al. as working to influence !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!55 Langton, Rae. 1993. Speech Acts and Unspeakable Acts. Philosophy and Public Affairs 22:4. 298. !(+!!the current trend in first ame ndment doctrine. Such a program is Òpractical,Ó and practicality is at times necessary and important. And, finally, MacKinnonÕs work (along with the contributions of others engaged in the philosophical discussion surrounding hate speech legislation) provid es an argument for how precisely certain speech acts harm in the very doing of the utterance. As we have seen , part of MacKinnonÕs argument has something to do with the way utterances construct reality rather than merely reporting on it or describing it. It is argued, rather persuasively, that pornography harms women in at least two ways: Pornography subordinates women and it silences women. The bulk of my analysis will engage this claim, the claim that pornography subordinates and silences women in the very ÒdoingÓ of the utterance. I will recount how MacKinnon argues for the claim that pornography is subordination and what that argument means for an analysis of hate speech, its harms, and what can be done about subordination through speech. The attempt to craft an ordinance that addresses the harm in pornography acknowledges that pornography is speech (under the law) but also that protecting pornography as speech legitimates certain behaviors ( e.g., seeing women as sex objects; taking them to Òwant itÓ w hen they say ÒnoÓ) and denigrates others. We have already seen that it is not impossible for legislators to recognize that the law has such power, as in the Supreme CourtÕs opinion on DOMA. The attempt to craft an ordinance that addresses the harm in porno graphy acknowledges the illocutionary force to subordinate and the illocutionary force to silence. !(,!!Along with the proposals outlined in the previous chapter, the Dworkin -MacKinnon anti -pornography ordinance also marks a shift in the philosophical analysis of censorship and silencing: There is a move away from aligning state power unequivocally with oppression and toward enlisting state power to counteract oppression. As Robert Post notes in his introduction to Censorship and Silencing , proposals such as the anti -pornography ordinance can be viewed as an unlikely alignment of leftist philosophers with conservative pundits Ð both, in their own way, proposing limits on Òfree speech.Ó 56 Now, ÒalignmentÓ is a strong word; however, the work of Catharine MacKinnon, Mari Matsuda, Andrea Dworkin, Rae Langton, and others understand enlisting state power as part of the solution to the problem of oppression as opposed to merely part of the problem. As Henry Louis Gates remarked, ÒToday the aim is not to resist power, but to enlist power.Ó 57 Although I ultimately favor redress by alternate means, in their proposals we see how enlisting state authority can empower those who need it most. The Dworkin -MacKinnon anti -pornography ordinance Pornography is speech. So says the stri kingly consistent exercise of 1 st Amendment protection on its behalf. Under that same legislative theory, pornography Òexpresses an ideaÓ Ð and no matter how hateful, degrading, or vile that idea may be, the government !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!56 Post, Robert. 1998. Censorship and Silencing. In Censorship and silencing: Practices of cultural regulation , ed. Robert Po st. Los Angeles, CA: Getty Research Institute. 57 Gates, Henry Louis, Jr. 1994. War of Words: Critical Race Theory and the First Amendment. In Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties , Henry Louis Gates et al. New Yo rk: New York University Press, 42. ÒYou donÕt go to the teacher to complain about the school bully,Ó Gates writes, Òunless you know that the teacher is on your sideÓ (ibid.). !)-!!has no business telling people what i deas they can hold and air. (WeÕll see later how the idea that Òspeech is expression Ó avails us with the opportunity to understand pornography as a ÒfalseÓ idea Ð given that inequality is a false idea Ð and, thus, open to restriction. But thatÕs later.) Gi ven that regulations on speech often coincide with civil rights violations, attempts to regulate or restrict the making and consuming of pornography in this country have consistently failed Ð and perhaps for good reason. In spite of findings by various cou rt opinions recognition (and even because of its recognition) that the ideas expressed in pornography are harmful to women, pornography is speech (so says the law) and thus ought to be protected from regulation. But, of course, not all see protecting pornography (as speech) as a form of justice. In response to a request by the city of Minneapolis, Andrea Dworkin and Catharine MacKinnon crafted an ordinance meant to provide a type of recourse for the sex inequality prescribed and done by pornography. Their conceptualization of the harm of pornograp hy is distinctly Austinian; they argue that pornography subordinates women and it does so in the very ÒutteringÓ of images on the screen or page. That being said, MacKinnon herself considers AustinÕs theory to be ÒfoundationalÓ to her exploration of the p ower of words to do as much as they say but not an ÒauthorityÓ on which her view is based. 58 Rae Langton more thoroughly engages in an analysis of the Austinian illocutionary act in order to clarify MacKinnonÕs view. Langton defends MacKinnonÕs argument, t hrough an Austinian lens, and in so doing clarifies the claim that the illocutionary force of pornography is to silence women. Much like the assigning !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!58 MacKinnon, Catharine. 1993. Only Words . Cambridge, MA: Harvard University Press . 121. !)$!!that is accomplished when, in the right context, Captain Orange says, ÒI pick Pilot.Ó The uttering is the choosing of Pilot for the team Ð it makes Pilot a member of the team. What MacKinnon and Dworkin propose with their anti -pornography ordinance is a civil redress, made available to those who are injured, against those who produce and profit from the harm that is pornography. For purposes of the proposed ordinance, they define pornography as: [T]he graphic sexually explicit subordination 59 of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities, enj oying pain or humiliation or rape, being tied up, cut up, mutilated, bruised, or physically hurt, in postures of sexual submission or servility or display, reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, i njury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual. 60 This definition may sound circular, and many philosophers will be concerned about defining pornography in general, but it serves a n ecessary purpose Ð namely, it circumscribes what is actionable under the ordinance from what is not. The point, one imagines, is to delineate subordinating pornography from other forms of expression that do not subordinate in the very uttering. Just as the words ÒI promiseÓ are not the promise. The image qua image is nothing Ð itÕs the image -act (just like the speech act) that is at issue. This is not a generic, philosophical conception of pornography and should not be treated as one. This definition is mea nt to get at the image -act Ð the way utterances are used, not the words themselves. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!59 Related to but distinct from the communicative subordination to which I refer with the claim that hate speech has the illocutionary force of subordinating. 60 Dworkin, Andrea and MacKinnon, Catharine. 1988. Pornography and Civil Rights: A New Day f or WomenÕs Equality . Also at: http://www.nostatusquo.com/ACLU/dworkin/other/ordinance/newday/AppD.htm !)%!!It is important to note here that more than one equally important dialogue is at play. First Amendment absolutists, feminist philosophers concerned about womenÕs sexual au tonomy, and speech act theorists who question the concept of illocutionary force, all attack MacKinnonÕs description of pornography. The larger dialogue includes responses from all three of these camps Ð a legal response, a sexual autonomy response, and a speech act theory response. In Only Words , MacKinnonÕs audience is the first of the three Ð her objective is to show how the First Amendment is not as maligned by her proposal as those absolutists would assume. In the next chapter I will address one variat ion of the third response; namely, ButlerÕs concern surrounding the characteristics of illocutionary force. The model ordinance (crafted for use by the city of Minneapolis and then for Indianapolis) provides five different causes of action : coercion into pornography, forcing pornography on a person, assault or physical attack due to pornography, defamation through pornography, and trafficking in pornography. 61 The following brief descriptions can be found in Appendix D of the model ordinance: 1. Coercion into pornography . It is sex discrimination to coerce, intimidate, or fraudulently induce (hereafter, Òcoerce) any person into performing for pornography, which injury may date from any appearance or sale of any product(s) of such performance(s). The maker(s), s eller(s), exhibitor(s) and/or distributor(s) of said pornography may be sued for damages and for an !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!61 Dworkin, Andrea and MacKinnon, Catharine. 1988. Pornography and Civil Rights: A New Day for WomenÕs Equality . Also at: http://www.nostatusquo.com/ACLU/d workin/other/ordinance/newday/AppD.htm !)&!!injunction, including to eliminate the product(s) of the performance(s) from the public view. 2. Forcing pornography on a person . It is sex discrimination to f orce pornography on a person in any place of employment, education, home, or any public place. Complaints may be brought only against the perpetrator of the force and/or the entity or institution responsible for the force. 3. Assault or physical attack due to pornography . It is sex discrimination to assault, physically attack, or injure any person in a way that is directly caused by specific pornography. Complaints may be brought against the perpetrator of the assault or attack, and/or against the maker(s), di stributor(s), seller(s), and/or exhibitor(s) or the specific pornography. 4. Defamation through pornography . It is sex discrimination to defame any person through the unauthorized use in pornography of their proper name, image, and/or recognizable personal li keness. For purposes of this section, public figures shall be treated as private person. Authorization once given can be revoked in writing any time prior to any publication. 5. Trafficking in pornography . It is sex discrimination to produce, sell, exhibit, o r distribute pornography, including through private clubs. We see here that the cause of harm is the basis for action. The ordinance is not censorship of pornography (in the proper sense of prior restraint); it creates, for those harmed by pornography, the legal standing to seek redress . !)'!!Throughout Only Words MacKinnon frames the question of pornographyÕs harm with analogous speech situations in which the focus is the act and not the expression. Social life is full of ÒwordsÓ that are legally treated as t he acts they constitute. The thing to note, she claims, is when the First Amendment is invoked and when it is not. She says, Saying ÒkillÓ to a trained attack dog is only words. Yet it is not seen as expressing the viewpoint ÒI want you deadÓ Ð which it u sually does, in fact, express. It is seen as performing an act tantamount to someoneÕs destruction, like saying Òready, aim, fireÓ to a firing squad. Under bribery statutes, saying the word ÒayeÓ in a legislative vote triggers a crime that can consist enti rely of what people say. So does price -fixing under the antitrust laws. ÒRaise your goddamn fares twenty percent, IÕll raise mine the next morningÓ is not protected speech; it is attempted joint monopolization, a Òhighly verbal crime.Ó In this case, convic tion nicely disproved the defendantÕs view, expressed in the same conversation, that Òwe can talk about any goddamn thing we want to talk about. 62 The law already recognizes Ð as do all of us, for that matter Ð when an act is done, even if it is done throu gh speech. ÒNo one confuses discussing them with doing them,Ó MacKinnon notes, Òfor instance discussing a verdict of ÔguiltyÕ with a juryÕs passing a verdict of ÔguiltyÕ. Nobody takes an appeal of a guilty verdict as censorship of the jury .Ó63 It is interes ting to note, as MacKinnon does in these passages, when the First Amendment is considered untouchable and when it is not even part of the concern of legislators. It appears that those of the appropriate authority are not concerned with the fact that the utterance ÒayeÓ expresses the idea ÒI concurÓ when the vote is bribed Ð they are concerned about the act that it constitutes Ð but are concerned about the freedom of pornographers to say something like, Òher ÔnoÕ means ÔyesÕ Ð see it, itÕs right there on !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!62 Ibid Only Words . 12 63 Ibid. 13. Emphasis mine. !)(!!the screen.Ó The ÒayeÓ and ÒkillÓ are not considered speech at all, while pornography is considered as nothing but expression. MacKinnon provides these examples as a way of analogizing pornography with already existent legislation against Òhighly verbal crime s.Ó Elsewhere MacKinnon notes that courts and culture have already determined that sexual harassment is not Òonly words.Ó She says, If ever words have been understood as acts, it has been when they are sexual harassment. For fifteen years, unremitting pressure for dates, unwelcome sexual comments, authoritative offers to exchange sex for benefits, and environments permeated with sexual vilification and abuse have been legally actionable in employment and education. Only words Ð yet they have not been se en as conveying ideas, although, like all social practices, they do: ideas like what men think of women, what men want to do to women, what women should do for men, where women belong. 64 All this is to say that legal theory already holds the following two claims to be true: 1. Some utterances are not Òonly wordsÓ and, 2. All acts (including criminal ones) have an idea/thought/expression behind them. No act is understood outside of social meaning, which is maintained in and by language. As MacKinnon notes, Social inequality is substantially created and enforced Ð that is, done Ð through words and images. Social hierarchy cannot and does not exist without being embodied in meanings and expressed in communication. A sign saying ÔWhite OnlyÕ is only words, but it is not legally seen as expressing the viewpoint Ôwe do not want Black people in the store,Õ or as dissenting from the policy view that both Blacks and whites must be served, or even as hate speech, the restriction of which would need to be debated in Fi rst Amendment terms. It is seen as the act of segregation that it isÉ Segregation cannot happen without someone saying Ôget outÕ or Ôyou donÕt belong hereÕ at some point. Elevation and denigration are all accomplished through meaningful symbols and communi cative acts in which saying it is doing it. 65 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!64 Ibid. 45 65 Ibid. 13 !))!! As I said in the previous chapter, first amendment exceptions (such as the fighting words or obscenity doctrines) tend to be characterized as a type of prior restraint on speech, in that certain utterances are not protected (under the first amendment) before they are ever uttered. MacKinnonÕs proposal, though still a form of enlisting state power, is quite different and often gets mistakenly aligned with first amendment exceptions. The ordinance proposes that if any of the above five causes have been shown to be the case, coupled with pornography as it is defined in the language of the ordinance , then the alleged victim can sue for damages and legal fees in civil court. Such recourse is distinctly not prior restr aint. Pornography is not prohibited . The uttering is not kept from happening; the materials are not examined and edited before they are published. Under the proposed law, pornography is actionable Ð a harmed party can bring suit against the pornographer. Rather than align the anti -pornography ordinance with exceptions to free expression, it is more charitable to compare it to civil laws that ÒforceÓ producers to construct safe objects for consumption. The expectation of avoiding harm to the general public on the part of manufacturer is familiar to us, but an ordinance that makes something actionable does not concern itself with the prior restraint of potential harms. Citizens have the legal power to sue and in some cases bringing suit is, in fact, reasonabl e. If it is determined that a product harms the general public then those harmed have the opportunity for redress. It doesnÕt matter if Ford intended to harm or not , the fact that the Pinto may burst into flames if mildly rear -ended provided cause !)*!!for thos e harmed to sue. Similarly, it doesnÕt matter if pornographers intend to subordinate or not. If harm occurs , those harmed have the legal standing to seek redress , i.e., to sue for damages. And, sure, the existence of such an opportunity may indirectly affect the mass production of future materials Ð but calling that censorship takes a little too much mental maneuvering. The anti -pornography ordinance doesnÕt create any laws dictating that any producer of images and texts ÒcanÕt say thatÓ and Òmust say t his.Ó If tomorrow you decide to become a ladder manufacturer it is reasonable to expect you will verse yourself on all that is now known about how to make ladders safe Ð but not to do so is not illegal. More importantly, an ordinance that provides consumer s with the legal standing to sue for damages if harmed is not equivalent to the prior restraint on the making and distributing of your product. Failing to verse yourself on safe ladder -making makes you irresponsible and callous, but that will all come out in the amount of damages you will pay once people start falling off your ladders. There is a wealth of evidence that pornography harms women Ð evidence that is even acknowledged by the courts. The Dworkin -MacKinnon ordinance puts in place a possible conseq uence of producing that harm. In her piece, Speech Acts and Unspeakable Acts , Rae Langton helps to clarify this misrepresentation of MacKinnon. MacKinnon has accordingly been interpreted as saying that pornography is un - protected conduct rather than pro tected speech, and one might imagine that Austin's approach gives this idea some support. If pornography is a kind of act, and action is conduct, then, one might think, pornography s unprotected by the First Amendment. But that interpretation of MacKinnon is wrong. "To state the obvious," she says, "I !)+!!do not argue that pornography is 'conduct' in the First Amendment doctrinal sense."' In any case Austin's approach would give it no support, for it does not help us to distinguish conduct from speech. If there is a line that divides speech from conduct in the law, it does not divide speech from action in Austin's philosophy. On his view, all speech acts are actions. To say that pornography is a kind of act is not to say that pornography is conduct, and nothing that I say will turn on that claim. The important point is that actions, whether speech or conduct, can be protected or unprotected by law. 66 MacKinnon argues for the anti -pornography ordinance as an extension of the Equal Protection Clause of the constit ution. The courts currently interpret pornography as defamation Ð MacKinnon would have it understood as discrimination . In this approach, the approach of current law, pornography is essentially treated as defamation rather than as discrimination. That is, it is conceived in terms of what it says, which is imagined more or less effective or harmful as someone then acts on it, rather than in terms of what it does. Fundamentally, in this view, a form of communication cannot, as such, do anything bad except off end. On the assumption that words have only a referential relation to reality, pornography is defended as only words Ð even when it is pictures women had to be directly used to make, even when the means of writing is womenÕs bodies, even when a woman is de stroyed in order to say it or show it or because it was said or shown. 67 As seen in the preceding section, the harm that is done in pornography is not mere insult; rather, it is the subordination of women. The Dworkin -MacKinnon ordinance shares a conceptua l foundation with Delgado et al but her legal move is still quite different Ð making something actionable. In the following passage from Only Words , MacKinnon articulates the power of words to reinscribe hierarchies and inequalities: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!66 Speech Acts and Unspeakable Acts . 296 67 Ibid. 11 -12. !),!!Together with all its material supports, authoritatively saying someone is inferior is largely how structures of status and differential treatment are demarcated and actualized. Words and images are how people are placed in hierarchies, how social stratification is made to se em inevitable and right, how feelings of inferiority and superiority are engendered, and how indifference to violence against those on the bottom is rationalized and normalized. Social supremacy is made, inside and between people, through making meanings. To unmake it, these meanings and their technologies have to be unmade. 68 Part of the process of delegitimizing the production of pornography (by stripping it of first amendment protection) is an unmaking of the meaning that women simply are inferior to m en and that we are objects to be used according to their will. It is an unmaking of the power of pornography to ÒsayÓ with authority (unqualified protection) what women are and what women are for Ð protecting pornography with qualifications is one way of u nmaking this particular meaning. Give women legal standing to sue and you have a type of Òtalking backÓ to what pornography has to say about women. Concluding remarks Pornography harms women: It subordinates women in the very ÒutteringÓ of it (an illocutionary act) and it silences women ( an integral part of subordinating and, often, a perlocutionary effect ). These harms, it is argued, outweigh whatever good there may be in absolutely protecting pornography as free expression . Since the harms outweigh the good of absolute first amendment protection, like other categories of speech that are !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!68 Ibid. 31 !*-!!unprotected, we ought not be so outraged at the prospect of protecting against the harms produced by and done in the very ÒutteringÓ of pornography . At the close of Only Words , MacKinnon argues that the first amendment and fourteenth amendment are heading for a doctrinal collision in this country. The courtÕs understanding of equality cannot for long withstand the current breath of first amen dment interpretation. What remains lacking from current interpretation is an understanding that equality is not complete without access to speech and that protection for speech that silences minority voices is an infringement on equality. In other words, t he intrinsic relationship between equality and speech is not yet recognized nor honored by current first amendment interpretation. More specifically, so long as the court continues to protect pornography as a free speech exercise it simultaneously denies t hat pornography discriminates against women, and thus, with the full weight of legislative authority, it challenges our national commitment to equality. In the terms of silencing, this anti -pornography ordinance could be characterized as establishing oppor tunity for counter -speech. If victims of pornographyÕs harms have a way to address their experiences as harms done by pornography then pornographyÕs message is challenged. The idea is that the silencing of women can be countered, with the stateÕs authority providing the space for those counter -claims to actually get heard . The state has the power to grant women the legal standing to bring civil suit against pornographers, and this is a type of empowerment that gives illocutionary capability back to women. !*$!!On the Dworkin -MacKinnon anti -pornog raphy ordinance view pornography is not merely the expression of an idea but, rather, is a violation of equal rights; it is subordination. Treating pornography as speech act, the ordinance provides a means for women to un derstand their experience as something more than a first amendment concern. Once we understand pornography as not simply ÒexpressingÓ ideas about sex, rape, brutality, and subordination Ð once we understand pornography as part of the performance of those t hings Ð then the call to provide a law that protects the victims of those acts is not so hard to answer. The Dworkin -MacKinnon anti -pornography ordinance is a move to support womenÕs equal protection under the constitution by weighing their rights for equa lity against the rights of pornographers to make and consume images that subordinate women. Current first amendment doctrine supports social dominance and therein MacKinnon and DworkinÕs anti -pornography ordinance challenges us to vote against social dom inance and for social equality . The idea is that our national commitment to equality is more seriously and problematically undermined by protecting pornography as free speech than our commitment to free expression is undermined by introducing human rights ordinances such as the anti -pornography ordinance . MacKinnon provides compelling evidence to this effect, all backed by empirical data that shows the direct and devastating connection between the making and use of pornography and the abuse of women and chi ldren. MacKinnon imagines a new model in which Òfree speech does not most readily protect the activities of Nazis, Klansmen, and pornographers, while doing nothing for !*%!!its victims, as it does now.Ó 69 MacKinnon compellingly argues that the fourteenth amendme nt already provides the path to tempering first amendment protection for speech that can be shown to subordinate. In fact, first amendment absolutism can be said to be in violation of the fourteenth amendment. The fourteenth amendment has already ÒdecidedÓ that social equality is a ÒtrueÓ idea. In first amendment theory, there is no such thing as a false idea. All ideas, as far as they are forms of expression, are equal under the first amendment. Thus, the defense for protecting pornography as free speech o ften relies on the claim that to do otherwise would be to essentially ÒsayÓ that the ideas of pornography are false. HereÕs the conflict: Inequality IS a false idea in so far as the 14 th Amendment is understood. According to MacKinnon, because the fourteen th amendment has already decided that the ideas of subordination and group inferiority are not equal under the law then inequality is a ÒfalseÓ idea in whatever form it is expressed. What I have attempted to show with the preceding analysis is twofold: Fi rst, MacKinnonÕs proposed legal strategy is wrongly characterized as a form of censorship (proper) and thereby the anti -pornography ordinance is mistreated insofar as it is identified as an untenable political strategy. There may be alternate reasons why w e ought to avoid enlisting state power as a means of combatting the harm in hate speech Ð alternate means are what I ultimately support Ð but, nonetheless, the anti -pornography ordinance is not in and of itself untenable or unethical. Lastly, MacKinnonÕs a rgument for pornography as subordination, when analyzed through an Austinian lens, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!69 Ibid Only Words . 109 !*&!!illuminates the force of hate speech to construct social reality to the detriment of whole groups of people. The reality -construction that is done in the very uttering of ce rtain utterances (verbal or non -verbal) in particular contexts is sufficiently damaging to warrant some sort of redress. 70 Looking back before looking forward: The Dworkin -MacKinnon anti -pornography ordinance is a way of enlisting the power of the state to interrupt the harms done in hate speech, but it distinctly different from the strategies suggested by the authors of Words That Wound . Those theorists more directly attack the scope of first amendment protection and argue that it ought not protect hate sp eech. Lawrence and Delgado do this by imagining a wider scope of first amendment exceptions; Matsuda does this by arguing that hate speech is hate violence and should be criminalized (effectively extending the scope of first amendment exceptions). MacKinno n imagines neither Ð her focus is on the civil standing of the victims of violent pornography. She imagines the possibility of civil suit against pornographers (effectively deligitimating the authority of pornography to silence women). I imagine a thread of argumentation here that connects MacKinnonÕs form of enlisting state power to ButlerÕs rejection of any form of authoritative intervention. My !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!70 As I conclude this critical response to the call for enlisting state power, IÕm left with a deep sense of unease because I, like too many of the critics of the anti -pornography ordinance, have not witnessed the material evidence of harm that the ordinance is meant to address; I havenÕt watched the tokens of violent pornography against which MacKinnon/Dworkin are attempting to provide redress. Is it not likely that I would be so repulsed by the harm that I would demand action as they have done? MacKinnon an d Dworkin have voiced this concern, and it is a legitimate one, that many who oppose the ordinance are not personally familiar with the kind of visual images, couched as Òspeech,Ó that make up their object of concern. The call to action is often motivated by a first -hand witnessing (if not first -hand experience) of subordination. Even though I will suggest a different path, the value of proposing an ordinance cannot be underestimated. !!*'!!strategy suggests something less abstract than ButlerÕs call for resignification and less judicial than MacKin nonÕs call for civil action against pornography. We need a repeatable, teachable strategy (more than we get from Butler) that empowers the intended audience of hate speech to perform effective counterspeech Ð a way for the victim to authoritatively perver se the illocutionary force of hate speech. But this can be done, I think, without enlisting the authority of the state against the speakers of hate (like what we get from MacKinnon). Once again, efforts to limit hate speech often are forced to rely on the idea that such speech is harmful because it offends or insults members of the group or groups that it targets. It is true that hate speech is offensive and insulting; however, as I ar gue, reliance on that fact in order to say what is wrong with hate speech is inherently problematic (and simply not the only harm that potentially occurs). Equally problematic is the tendency in an analysis of hate speech as speech act to locate the harm i n the intention of the speaker. What is needed and warranted is a system that locates the harm of hate speech not in the feelings, emotions, or thoughts of the audience, nor in the heart, intention, or thoughts of the speaker, but in the force of certain s peech acts -- when uttered in the ÒrightÓ context by people with the ÒrightÓ authority -- to do as much as they say. Now it is time to move on from the first -amendment -absolutistÕs concern and turn toward a conceptual/philosophical concern Ð a concern hel d by Butler. In the following chapter I will address in -depth ButlerÕs misleading grouping of the above proposals with the anti -pornography ordinance crafted by MacKinnon and Dworkin. !*(!!The structure of ButlerÕs analysis in Excitable Speech implies (not too subtly) that the ordinance and the proposals offered up in Words That Wound are two tokens of the same type Ð theyÕre both instances of censorship. !*)!!Chapter 3: Excitable Speech , Sovereign Authority, and the Possibility of Felicity When I say before the registrar or alter, etc., ÔI doÕ, I am not reporting on a marriage: I am indulging in it. 71 The total speech act in the total speech situation is the only actual phenomenon which, in the last resort, we are engaged in elucidating .72 The work that has been done by Catharine MacKinnon, Andrea Dworkin, Rae Langton, Mari Matsuda, and the like to elucidate the dimension of performative speech as working on the world with socially constructive power is taken up and ultimately rejected by Butler in her work, Excitable Speech .73 In that work Butler directly engages the regulatory proposals of Mari Matsuda and, in greater depth, Catherine MacKinnon and rejects both proposals as censorship. Putting aside (for now) ButlerÕs erroneous conflation of their diverse proposals, Butler takes issue with both their conceptual analysis of speech acts and the underlying principles these theorists espouse. In the following I hope to tap into the spirit of both projects Ð MacKinnonÕs and ButlerÕs Ð in that both are concerned with the harm done in the various ways that power is wielded through speech. Regardless of how persuasive we find ButlerÕs argument against the use of government -sanctioned regulations on hate speech to be, she misrepresents the anti -pornogr aphy ordinance as censorship and, likewise, misrepresents the Enlisters as attributing a sovereign power to the performative. This point has been made before, most notably by Schwartzman, ÒContrary to ButlerÕs contention, Matsuda, Langton, and MacKinnon do !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!71 J.L. Austin, 1962. How to do things with words , 2nd ed. Cambridge, Mas sachusetts: Harvard University Press. Pg. 6. 72 Ibid. Pg. 148 73 Butler, Judith. 1997. Excitable speech: A politics of the performative. New York: Routledge. !! !**!!not claim that the words that are uttered Ð or the images that are depicted in pornography Ð are ÔefficaciousÕ or ÔtransitiveÕ in the sense that they necessarily succeed.Ó 74 Like Schwartzman, I hope to show that while Butler's argument against enlisting ju dicial power to regulate speech needs to be taken seriously, her critique of MacKinnon (and the Enlisters in general) is flawed on more than one count. For my own part, m ore troubling still is what seems to follow for Butler from her analysis of speech act theory. Excitable Speech can be read as providing three distinct criticisms of the move to enlist state power 75: i. One thread of ButlerÕs analysis addresses general concerns regarding the process of enlisting an authoritative power such as the state, which includes, for Butler, what I have called the specificity problem, the trustworthy problem, and the problem of deniability. 76 I argue that all three problems fail to absolutely undermine the plausibility of enlisting state power as a form of redress against hate speech. ii. Another thread of her analysis concerns the Dworkin -MacKinnon anti -pornography ordinance specifically. Butler identifies and critiques the ordinance as a form of state censorship and I argue that she is mistaken. In fact, her !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!*'!Schwartzman, Lisa. ÒHate Speech, Illocution, and Social Context: A Critique of Judith Butler.Ó Journal of Social Philosophy, 33:3. Fall 2002, 421 -441. *(!The criticisms of enlisting state power that constitute Excitable Speech are directed at all of the the orists that I have called the Enlisters ; however, the reader will note that Butler specifically engages Mari Matsuda and Catherine MacKinnon. The majority of my analysis of Butler is a response to her criticism of MacKinnon and the Dworkin -MacKinnon anti -pornography ordinance. I spend most of my time and energy in the following on Butler and MacKinnon since I see them as unnecessarily talking past one another. *)!From Chapter 1 of this project. !*+!!characterization of the ordinance as a form of state censorship a la ÒDonÕt Ask, DonÕt TellÓ constitutes a failure on the part of Butler to recognize the variety of avenues of possible redress at play in the larger dialogue. iii. The last thread of ButlerÕs analysis that I add ress concerns the picture of the performative that Butler attributes to the Enlisters . It is a picture of speech acts in which the illocutionary act has sovereign authority. Here too I argue that Butler is mistaken. Not only is the textual evidence lacking , Butler fails to adequately support her claim that these theorists implicitly construct the performative as sovereign. More importantly, positing such a picture (on the Enlisters and speech act theorists in general) is wholly unnecessary in order to successfully and satisfactorily utilize speech act theory in response to hate speech. Count (i.) was addressed in the preceding chapters when the focus was the practical problems with enlisting state power. Although I wish to stop short of unequivocally rejecting the use of judicial authority in response to hate speech Ð in fact, I see no reason to believe that legislation is always ethically questionable or politically untenable Ð I d o not here argue for legislation against hate speech as do the Enlisters . My interests lie generally with the conceptual issues, and so I will attend to counts (ii.) and (iii.) above in the following discussion. The critique of the Enlisters that makes up the bulk of Excitable Speech obscures the sense in which Butler and MacKinnonÕs views are not so oppositional Ð the ground on which they all may meet is lost Ð and, thus, a fruitful discussion is prematurely !*,!!foreclosed. At the very least it appears that Bu tler and MacKinnon are talking past one another, and perhaps unnecessarily. Overall, the philosophical debate over the nature of the performative and the legitimacy of hate speech regulation in which Butler engages MacKinnon et al leaves the audience with the sense that there is no clear resolution. More notably, Butler forecloses the possibility of a rich variety of address that she herself would like: namely, what she gestures toward with her recommendation of resignification . A quick example to get thi ngs startedÉ Butler introduces Excitable Speech with a series of quotes from Austin: ÒInfelicity is an ill to which all acts are heir which have the general character of ritual or ceremonial, all conventional actsÓ and ÒThere are more ways of outraging spe ech than contradiction merely.Ó 77 ButlerÕs overarching concern, in general, has to do with the indeterminability of context, the supposedly ÒsovereignÓ power that is wielded when an illocutionary act is successful, and the point at which these two ideas int ersect. The concept of infelicity is the locus of discussion Ð and the locus of conceptual confusion between Butler and MacKinnon. An example helps to illuminate the interesting nature of performative speech Ð a nature that includes the pervasive possibil ity of infelicity and a plethora of ways in which its force can be outraged. Often when I Òpunch the numbersÓ on the keypad I, as !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!77 Both quotes can be found in How To Do Things With Words , pg. 1 9 and pg. 48 respectively, though Butler doesnÕt cite the text here. !+-!!such, Òdial the phone.Ó 78 These two utterances are separate descriptions of what most of us would understand (in casual convers ation) to be the same act . When I call a friend up for a chat, she may assume that I Òdialed the phoneÓ or Òpunched the numbersÓ and the two descriptions are equally intelligible to her. The picture she forms in her mind could be described as either ÒMered ith dialed the phoneÓ or ÒMeredith punched the numbersÓ and the use of either description (or both) likely makes no difference to her understanding of the act that I performed. It is equally true that, in certain contexts, the best description (the most il luminating, or the most understandable) of Òdialing the phoneÓ is indeed Òpunching the numbersÓ or vice versa. If IÕm teaching a new phone user how to Òdial the phoneÓ I will be showing them how to punch the numbers. Upon examination, however, the two desc riptions do not necessarily align always, universally, consistently, every time. There are imaginable contexts (real contexts, not just in the imagination) in which Òdialing the phoneÓ is not Òpunching the numbersÓ and vice versa. A childÕs toy phone, for example, is one where the numbers can be punched but no one is dialed. As Austin says, ÒInfelicity is an ill to which all acts are heir which have the general character of ritual or ceremonial, all conventional acts.Ó 79 Calling someone up on the phone is an act that takes place in a culture, by people Ð and thus the performance of the act is open to hiccups, hitches, and downright failure. I use these examples here to introduce a serious flaw in ButlerÕs interpretation of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!78 Thanks to Marilyn Frye for calling my attention to the connection between this example and GEM AnscombeÕs, Òpulling the triggerÓ and Òfiring the gun.Ó The idea that a single act can hav e multiple descriptions, complicated by the nuances of intention, is an idea worked out thoroughly by Anscombe (1957). An analysis of the connection between AnscombeÕs work and speech act theory is for another project. 79 J.L. Austin, 1962. How to do things with words , 2nd ed. Cambridge, Massachusetts: Harvard University Press. Pg. 19. !+$!!the Austinian illocutionary act (a flaw I will come back to later on). Austin writes of the locutionary act, the illocutionary act, and the perlocutionary act of a given utterance. However, this division in terms should not lead us to believe that separate acts take place. Three separate t erms but not three separate acts; rather, one given utterance can be described according to the locutionary, illocutionary, or perlocutionary descriptions of an act that is performed by the speaker in that context. Further on I argue that, in Excitable Spe ech, Butler dismisses the illocutionary dimension of speech all together based on her conviction that speech and conduct are not to be conflated, ever. I find this to be the most philosophically problematic claim made by Butler in her quest to deny the use of judicial authority as a response to hate speech. Section I: Censorship, Silencing, and the Dworkin -MacKinnon anti -pornography ordinance The harm in hate speech is real; so real, in fact, that some would think it calls for enlisting the authority of th e state to restrict or prohibit speech as a civil rights violation. As seen in my earlier chapter on Words That Wound , there are important practical and conceptual problems with restricting racist speech. Note here that restricting speech is but one sub -category of enlisting state power to combat assaultive speech. As noted previously, there are important differences among prohibiting speech, not protecting speech, and making certain utterances actionable under the law. 80 In Excitable Speech , !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!+-!A note here on the difference between restricting speech and regulating speech: Theorists who propose enlisting a type of authority Ð state power being just one Ð to address the harm in hate speech can be said to be proposing various types of regulatory policies. I take a regulatory policy to be a rule or set of rules that ci rcumscribes behavior and attaches to it some negative consequence with the backing of judicial authority. Restrictive policies, on the other hand, are characterized by prior restraint , which is a technical !+%!!Butler misident ifies the anti -pornography ordinance as tantamount to prohibiting speech when, in actuality, the ordinance makes pornography as speech actionable under the law. The difference is significant. In the preceding chapter we saw that the Dworkin -MacKinnon anti -pornography ordinance is a distinct proposal when compared to, for instance, MatsudaÕs proposal to criminalize racist speech. Although I have identified both MacKinnon and Matsuda as Enlisters Ð both propose enlisting a type of judicial authority Ð I do no t claim that their distinct proposals are the same type of legislation. Butler, on the other hand, not only lumps their proposals together as if they were suggesting the same type of legislation, she sees both proposals as proposing censorship . Butler titl es her final chapter of Excitable Speech , ÒImplicit Censorship and Discursive Agency.Ó She opens the chapter by stating, ÒTo argue that certain speech acts are more properly construed as conduct rather than speech sidesteps the question of censorship.Ó 81 She clearly thinks such a move is problematic and goes on to implicate the Dworkin -MacKinnon anti -pornography ordinance specifically, hate speech, pornography, and gay self -declaration in general. Butler attributes the following line of reasoning to Matsu da et al : [R]acist speech in particular both proclaims the inferiority of the race to whom it is addressed, and effects the subordination of that race through the utterance itself. To the extent that the utterance enjoys first Amendment Ôprotection,Õ it i s viewed, by Matsuda and others, as enjoying the backing of the state. The failure of the state to intervene is, in her view, tantamount to an endorsement by the stateÉ The utterance thus has the power to effect the subordination that it either depicts or promotes !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!term in legal theory that points to the banning of the identified utterances and the enforcement of that ban through seizure and censor of the material before it is disseminated. 81 Pg. 127. !!+&!!precisely through its free operation within the public sphere unimpeded by state intervention. 82 Pornography effects subordination, the state fails to intervene (tantamount to endorsemen t), and so, Butler claims, the Enlisters conclude that the p ower of pornography to effect subordination is done Òprecisely throughÓ state protection. In the above passage, the move that Butler makes from MatsudaÕs Òfailure of the state to interveneÓ to Òfree operation within the public sphere unimpeded by state intervention Ó is a slight but significant mischaracterization of MatsudaÕs argument. Butler correctly describes MatsudaÕs view as problematizing a kind of backing by the state that happens when it fails to intervene, but she goes on to say that the proble m Matsuda identifies is with public speech unimpeded by state intervention . ButlerÕs problematic sleight of hand is the move in the above passage from Òbacking by the stateÓ to the less intrusive ÒunimpededÓ speech allowed by the state. Here is where Butl er fails to describe the full gravity of MatsudaÕs claim. ItÕs not, precisely, that the force of state protection comes from racist speech as Òunimpeded by state intervention.Ó Rather, the force is located in the protection that the state provides for suc h speech. What the state protects, it legitimates and it simultaneously delegitimizes interfering [further down: what it purposely refuses to protect, it delegitimizes]. When the state protects a kind of behavior what it delegitimizes is interference with that behavior. This is how the victim of hate speech becomes a Òstateless personÓ Ð they have no legal recourse to put a halt to whatÕs harming them. If youÕre a citizen of a state, the general presumption is !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!+%!Butler, Judith. 1997. Excitable speech: A politics of the performative. New York: Routledge. Pg. 73. !+'!!that you have access to recourse when someone i s harming you. The availability of action to get the person to stop the harm is foreclosed by the stateÕs protection of speech. The force of protection is stronger than the force of not intervening Ð the force of protection is not a stance of indifference. And here is where MacKinnonÕs project fits in: when IÕm harmed by this behavior I have legal recourse to that harm Ð itÕs not prior restraint, itÕs not regulation of speech, itÕs making a particular harm actionable . Imagine this distinction as it plays o ut in the relationship between a child and her parent. When the parent stands back and allows the children to play (doesnÕt intervene) the parent takes on a much different stance than a stance of protection. In fact, creating a space in which the child get s to play exactly as they wish without intervention and with the assurance that their play is ÒallowedÓ in that space Ð the parent will intervene on their behalf in order to maintain that space of play if necessary (protection) Ð is more akin to what the s tate provides to the KKK when they are ÒpermittedÓ to march, or when a burning cross is protected expression. Such assurance is as good as condoning the behavior. Taking the example further, imagine that one young member of a household is learning to play a musical instrument. When the child is allowed to play in her room even though and when the rest of the house is disturbed (annoyed/distracted/offended) by the noise Ð and allowed to play uninterrupted by the other members of the household who are curren tly disturbed Ð we can say that the childÕs playing is protected by a powerful authority. The child, in understanding that her practice is protected, understands that producing this noise is accepted and, !+(!!furthermore, the right to produce it is deemed impo rtant even when it frustrates the calm existence of others around her. The parent may even stand outside the bedroom door and keep others from intruding, which contextually, is a sign of endorsement ; this is the (important) difference between behavior bein g unimpeded by intervention and its being protected. The case of Skokie, IL, once again comes to mind. An understanding of the way that protection can be tantamount to endorsement explains how the predominantly Jewish community of Skokie reacted to the gov ernment protection for a public KKK march. As mentioned in the Chapter 1, this nuanced distinction would have helped the courts of Skokie, IL argue that a public Klu Klux Klan march can (and ought to) be regulated on grounds that the message is one of raci al inferiority . Protection does not entail endorsement in general, but contextually it will come off that way in certain scenarios (the new musician in the household and the KKK march). We protect what we value. The state claims that what is protected is o nly and importantly the right to free expression. And yet, in particular contexts, that protection will be (justifiably) read as endorsement of the content of that expression. Here, precisely, is MatsudaÕs claim and the reasoning behind her argument for th e criminalization of hate speech. MatsudaÕs concern is with state protection, not with unimpeded space. Butler aligns MacKinnonÕs project with MatsudaÕs. Here again from Excitable Speech : In Only Words pornography ought to be construed as a kind of Ôwoun d,Õ according to MacKinnon, because it proclaims and effects the subordinated status of women. Thus, MacKinnon invokes the constitutional principle of equality (the Fourteenth Amendment, in !+)!!particular) and argues that pornography is a form of unequal treat ment; she takes this discriminatory action to be more serious and severe than any spurious exercise of ÔlibertyÕ or Ôfree expressionÕ on the part of the pornographic industry. That exercise of Ôfreedom,Õ she argues, takes place at the expense of other citi zensÕ rights to equal participation and the equal exercise of fundamental rights and liberties. In MatsudaÕs view, there are certain forms of harassing speech that qualify as discriminatory action, and those forms of racially and sexually based hate speech may undermine the social conditions for the exercise of fundamental rights and liberties on the part of those who are addressed through such speech. I propose to focus here on the power attributed to the pornographic text to effect the subordinated status of women not to ascertain whether the text does effect that subordination in the way that she describes, but rather to discover what version of the performative is at work in the claim that it does. MacKinnonÕs use of the performative engages a figure of the performative, a figure of sovereign power that governs how a speech act is said to act Ð as efficacious, unilateral, transitive, generative. 83 Beyond some general concerns regarding enlisting judicial power to combat hate speech (outlined above), Butl er, in no uncertain terms, identifies the Dworkin -MacKinnon anti -pornography ordinance as a form of state -censorship. However, to claim that MacKinnon and Dworkin have proposed a prohibitive policy is, quite simply, mistaken. To make the argument that underneath it all they are suggesting something ultimately (implicitly) prohibitive is a slippery argument to make, and one that stretches the term censorship beyond usefulness. A policy that sp ecifies and dictates what can and cannot be said on pain of penalty is a prohibitive policy. The anti -pornography ordinance provides redress for pornographyÕs harms, and pornography happens to be characterized as speech by the law ; it does not prohibit por nographers from making pornography. If a ladder manufacturer makes a defective ladder and as a result people are hurt, those people have the opportunity (if they choose to take it) to sue the ladder !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!+&!Excitable S peech . Pgs. 73 -74, emphasis mine. !!+*!!manufacturer for damages. Such a policy does not prohibit ladder -making. My interlocutor may say that it can be argued, in a roundabout way, that the policy prohibits bad ladder -making in that being open to suit would successfully motivate safe ladder -making over defective ladder -making , but to call such a polic y prohibitive is a stretch that leaves the argument against bad -ladder -making policies unhelpful. In specifying what they want to prohibit, these detractors have to get very imaginatively involved in what they want to prohibit. I agree with Butler that the militaryÕs ÒDonÕt Ask, DonÕt TellÓ policy is a prohibitive policy that is plainly wrong on many counts, but lumping MacKinnonÕs work with this policy misses the mark. MacKinnon is not proposing a prohibitive policy; the anti -pornography ordinance makes ha rmful pornography actionable under the law. We can assume that Butler may agree with MacKinnon that pornography construed as speech does effect the subordination of women. ButlerÕs concern here is that MacKinnon and like -minded theorists construct the perf ormative as having a kind of efficacy (ÒsovereignÓ) that it does not possess and, furthermore, that such a construction actually contributes to the silencing of the victims of hate speech. Now, either MacKinnon does, in fact, construct this view of the per formative in spite of her efforts (consciously or otherwise) not to do so, or Butler mischaracterizes the performative employed by MacKinnon et al . I argue that although a psychological pining for a clear -cut conception of authority is done by all parties involved in the debate, Butler gets MacKinnon wrong on this point. !++!!That being said: Yes, as Butler suggests, it is at least possible that the militaryÕs ÒDonÕt Ask DonÕt Tell Ó policy is ideologically ÒsupportedÓ by sexual harassment law and its extension i nto areas of pornography and hate speech: ÒAs difficult and painful as it is to imagine, could the military have targeted this form of utterance as a codifiable offense without the precedent of sexual harassment law and its extension into the areas of porn ography and hate speech?Ó 84 The (former) military policy relies on a construal of self -identification as solicitation, and solicitation is a form of sexual harassment. Thus, without sexual harassment restrictions there may not have been the conceptual space to support a policy such as ÒDonÕt Ask DonÕt Tell.Ó 85 What is conspicuously absent from this part of ButlerÕs discussion is the acknowledgement that if you like the first amendment then you too are using state power. 86 The state maintains first amendment protections, and if you accept that protection (and if you like having that protection) then you are, in no uncertain terms, also enlisting state power. Butler rejects prohibitive policies (such as the militaryÕs ÒDonÕt Ask, DonÕt TellÓ policy) mostly with t he argument that such policies Ð policies that attempt to circumscribe what can be said Ð are not cogently possible. These policies silence speakers in that they keep speakers from performing specified utterances by authoritatively establishing penalties ( of varying severity) for speaking, which are backed and enforced by the state. Such enforcement is a type of silencing, but not precisely the type of silencing that concerns MacKinnon. Pornography harms women, MacKinnon argues, in !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!+'!Ibid. Pg. 76. One of many rhetorical questions. 85 And yet, itÕs still an unseemly stretch to compare ÒDonÕt Ask DonÕt TellÓ to sexual harassment restrictions in general given the often coerced ÒoutingÓ of gays and lesbia ns in our culture. +)!Does Butler also have a fantasy of sovereign power? !+,!!that it silences women. I t silences in that the utterances made by particular women about their sexuality Ð or desire for sex in the moment Ð are taken as doing something that they do not intend for those utterances to be taken to do. A specific example is the still prevalent prob lem of ÒnoÓ getting taken to be Òyes.Ó Pornography constructs and helps to maintain Òno means yesÓ as true in ÒnormalÓ and ÒaverageÓ sexual encounters. Rae Langton refers to this form of silencing as illocutionary disablement, which is distinct from the fo rm of silencing rejected by Butler when she argues against prohibitive policies. This is all to say that not ALL forms of silencing are the same. Butler agrees that malappropriation of oneÕs speech act is not only a real phenomenon but is one that should b e countered (if not by legal action, then in some other way) Ð and here, perhaps to their surprise, Butler and MacKinnon are on the same page. Although agreement that illocutionary disablement is a problematic phenomenon for women does not get them very f ar toward agreement on anything else. One may be able to make the case, with some nimble argumentative maneuvering, that MacKinnonÕs anti -pornography ordinance silences the speech of pornographers in a particular way. The point here is that actionable un der law is not the same sense of silencing as the sense done by prohibitive policies, such as ÒDonÕt Ask, DonÕt Tell.Ó The anti -pornography ordinance may have the result that pornographers are less likely to make certain kinds of pornography (like ladder -makers are less likely to make unsafe ladders) because of the possibility of paying damages to a harmed person. This sense of silencing is subtle but distinct from circumscribing what precisely cannot be said on pain of penalty. WeÕve now delineated three d ifferent ways silencing !,-!!happens: (1) You are silenced in a way that keeps you from Òpulling offÓ a particular illocutionary act; (2) You are silenced in that you speak and are punished for it (you make a defective ladder and are sued); (3) You are silenced in that you donÕt undertake certain illocutionary acts in the hope of avoiding accountability and payment of damages (the ladder -maker who wishes to make unsafe ladders but refrains). ThereÕs an additional form already mentioned: You do something and it g ets counted as a particular act that you did not intend (something like malappropriation of oneÕs speech act). The underlying presumption driving the implementation of ÒDonÕt Ask, DonÕt TellÓ is the idea that speech is conduct. The militaryÕs policy exp licitly considers the utterance that one is gay to be homosexual conduct: ÒA member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if the member has stated that he or she is a homosexua l or bisexual or words to that effectÓ (10 USC, ¤ 654, b2). Within the text of the policy, stating that one is gay is no different (and results in no less severe consequences) than engaging in homosexual conduct or intending to marry another of the same s ex. But what does this mean precisely? The utterance ÒIÕm gayÓ is taken to be as good as an invitation to sex. ItÕs no harm to note that, in certain imaginable contexts, the utterance that one is gay is, in fact, an invitation (one can imagine the conte xt Ð uttered in a particular time and space Ð in which stating ÒIÕm gayÓ can be Òtesting the watersÓ to see if the other is interested). But this is to say nothing more than is already noted by Aus tinÕs analysis of speech acts; namely, the meaning of the utterance is not contained in the locution. The !,$!!same utterance can have as many varying forces as there are imaginable contexts. For a simple example, the utterance ÒYesÓ has innumerable applications Ð it can be a command, a question, an interrogative, a description, and so on and so forth. The military fails to note that the more typical context in which one would explicitly state that one is gay is a Òcoming out.Ó When I tell my parents, ÒIÕm gay,Ó itÕs not an invitation. 87 Section II: Speech acts and sovereign authority Butler understands the enlisterÕs push for legislation as motivationally connected to preventing the harm in hate speech. As I said earlier, the thought is that the harm in hate speech is real and warrants a kind of redress as conduct. The implication that nothing can be done to interrupt the harm in hate speech but to prohibit the utterance seems to Butler to presuppose that the speech act is necessarily efficacious when uttered. Butler wants to argue that speech can and, indeed, does a ct on the world in an injurious way but still is not necessarily efficacious, i.e., not sovereign. She thinks the perception of a need to enlist the auth ority of the state betrays the Enlisters Õ erroneous picture of speech and speech acts. Butler begins: I propose to review some of the senses in which Ôverbal conductÕ is thought in the proposed hate speech regulation, and to offer an alternative view of how one might at once affirm that language does act, even injuriously, while insisting that it does not directly or causatively Ôact onÕ the addressee in quite the way that proponents of hate speech legislation tend to describe. Indeed, the act -like character of certain offensive utterances !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!+*!!I return to this example in my final chapter with the interesting case of the performative turned constative utterance, ÒI want you.Ó !,%!!may be precisely what keeps them from saying what they mean to say o r doing what it is they say. Ó88 As we know from Austin, the speech act is the one that it is in virtue of the context of the utterance, not the words themselves. Austin identified the locutionary act (the saying of something meaningful in a language) as distinct from the illocutionary act (the doing of something in the saying of something). Think back to my example of Pilot getting picked for the varsity team. The same utterance Ð ÒI pick PilotÓ Ð if said in the context of a classroom in which the professor is instructing her students on speech act theory is decidedly not the speech act of choosing . In this context it may be described as the speech act of giving an example . For B utler, the problem is that the Enlisters appear to presume that the context of the speech act is determinable in some exhaustive way; but, of course, the context of any given speech act is never totally determinable. 89 Butler relies on AustinÕs model Ð specifically that infel icity is a problem to which Òall acts are heirÓ Ð but she fails to see the pervasive possibility of infelicity in MacKinnon and Matsuda . The legitimacy of producing certain illocutionary acts is created by the delineation of the speakable (permitted) from the unspeakable (forbidden) by a given authority. For example, the parent in the household has the authority to delineate the speakable from the unspeakable. And yet, conversely, the possibility to defy the parent is also created by the delineation of the unspeakable . In simpler terms, we may say to Butler: Sure, the very act of ÒlegislatingÓ creates categories, but the mere constructing of categories does not presuppose that categories must be exhaustively delineable. The !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!++!Excitable Speech . Pg. 72, my emphasis. !+,!The possibility for every speech act of being infelicitous is precisely how hate speech is vulnerable to effective responses. !,&!!argument that hate speech is soci ally constructive is not to say that hate speech is always felicitous. When felicitous, hate speech is socially constructive Ð but infelicity is always a possibility. In fact, as Butler herself notes, infelicity is precisely what also makes the pornographe rs open to counterspeech. 90 An implicit reliance on sovereign authority, contrary to ButlerÕs claim, is not necessary for the successful and perhaps even satisfactory use of speech act theory in response to hate speech. Something about the illocutionary f orce of the utterance Ð or, rather, something about locating the harm in hate speech as illocutionary (rather than perlocutionary, we presume) Ð is problematic for Butler. She thinks it is the Òact -likeÓ character of certain utterances that ultimately, and against oneÕs will, creates the possibility of infelicity in that very particular sense of illocutionary disablement; the kind of silencing that gets oneÕs actions taken to be something other than, and even hostile to, what is intended by the speaker. ******* A quick and dirty detour of noteÉ Allow me a quick note about the use of the term ÔcausalÕ in the above quote: Òone might at once affirm that language does act, even injuriously, while insisting that it does not directly or causatively Ôact onÕ the a ddressee.Ó AustinÕs model clearly distinguishes between the perlocutionary act (that which is brought about by speech) and the illocutionary act (that which is done in speaking). The distinction is there, in fact, to delineate a causal connection between t he utterance and the effects, typically in another !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!90 Pornographers are themselves practitioners of perverse infelicity making . !,'!!(the perlocutionary act), and the idea that uttering is itself the doing (the illocutionary act). When in the realm of illocutionary acts, a careful analysis of the total speech situation will not refer to the effects of the speech on the audience, whether speaking of a causal connection or some other type of subsequent occurrence. Illocutionary force is socially constructive, not causal. The small detour was necessary since throughout Excitable Speech But ler is concerned with the presumed causal efficacy of hate speech. Butler proposes to show how MacKin non and her fellow Enlisters construct (perhaps unknowingly) a picture of performative speech that forecloses the possibility of the recourse they seek. Na mely, Butler claims that those who wish to forbid speech presuppose a type of sovereign authority to speech acts. The argument seems to go like this: Since there is no gap between the act and the utterance Ð between the illocutionary act and the illocution ary force (here of hate speech) Ð then there is nothing to do about it but forbid the speech. Thus, there is a type of sovereign authority at play in the illocutionary act and because of that sovereignty there is no way to prevent the harm but to prevent t he occurrence of the speech act. I agree with Butler that if it were the case that one must presuppose a type of sovereign authority in order to justify the call for legislation then, yes, the arguments in support of forbidding speech would all be exposed to the problems that Butler suggests. However, it appears that one can successfully argue for imposing some form of restriction or liability to legal action without thusly being committed to the universal efficaciousness of the ÒforbiddenÓ speech acts. ******* !,(!!As Butler herself quotes, Austin is clear that infelicity is always a possibility whenever (and from whomever) a speech act is attempted. In Excitable Speech , it is unclear whether 1. Butler takes the Enlisters to be presupposing sovereign authority based on the supposition (Butler attributes to them) that hate speech is always felicitous, or 2. Butler takes the Enlisters to presuppose that hate speech is always felicitous because they assume a type of sovereign authority to utterances of hate speech. Most likely she proposes the former: Butler tries to provide evidence that the Enlisters assume hate speech acts to be always and necessarily felicitous. Thus, they presuppose a type of sovereign authority is in play. But why attribute that to them? It a ppears that for Butler, the assumption is if hate speech is always necessarily efficacious then thereÕs nothing to do about it but forbid it. You canÕt interrupt the act and the effect because the act is the doing (illocutionary force) so you canÕt get bet ween the utterance and the act. When the act works, it works. But it often doesnÕt! There are a plethora of infelicities. When the context is just right then the speaking is the promising, the utterance is the diss. An analytic truth: When a speech act is felicitous, itÕs felicitous. When promising is felicitous, a promise has been made. The fact that Enlisters think that hate speech is sometimes felicitous as hate speech is apparently taken by Butler to imply they presuppose that those speech acts are alwa ys (necessarily) felicitous. For Butler, it appears that prohibiting speech also presupposes that a speech act can always have ÒaÓ particular force. It is because these theorists (in the Òhate speech regulationÓ camp) propose legislation that we can (must? ) presume they are committed !,)!!to the view that the context of the utterance be exhaustively specifiable in some universal, consistently applicable way. So, in response to Butler, we must ask: Does prohibiting speech presuppose constructing exhaustively spe cified requirements on the site of speech? Further, must we assume a sovereign authority to speech if we want to assume there is such a thing as illocutionary force? I answer no to Òexhaustively specifiedÓ even though yes to Òspecified.Ó Prohibiting speech acts (not just the uttering of specified lexical items, words) does require some specification of contexts of utterance, but does not require that those specifications be exhaustive. Most prohibitions of acts require some specification of contexts, which is never exhaustive, but that doesnÕt prevent us from making laws against, e.g., acts of cruelty to animals. If we were to prohibit hate speech, such prohibitions would require some specification as such (though not exhaustive ) of the total speech context, but it is not the case that we must assume a sovereign authority to speech when we subscribe to AustinÕs model of illocutionary force. The characterization of MacKinnon as invoking the idea that speech has sovereign power is inaccurate. The efficaciousness (and infelicity) of any speech act is determined by co nvention. In particular, in order for a particular speech act to do something in the saying of something the speaker must have a certain kind of authority. All speech acts , in fact, take a certain kind of authority. The speaker is perceived as having autho rity Ð more precise still, the speaker is granted authority by the person whose uptake is needed in order for the speech act to do what it says. Furthermore, it is precisely this very social character of speech that provides the space for all the !,*!!possibil ities of counterspeech. The type of authority at play is determined by the type of speech act that is performed in a particular context, and all of that is bound by context, which, in turn, is determined by convention. ItÕs not MacKinnon that invokes powe r; the whole concept of illocutionary force, what it is and how it works, is a concept that invokes power (including, but not limited to, individual authority) in language. For example, when the umpire calls a Òrun,Ó the score of the game changes. Clearly, the umpire does not intrinsically have the authority to change the score of the game Ð authority is bestowed on the official by the very people who are impacted by the officialÕs speech act. In such examples from Austin, and speech act theorists in genera l, Butler sees an exaggeration of the unilateral efficaciousness of power. If she were correct, we can imagine that such an exaggeration is a natural consequence to observing the pervasive and constant plays of power in social life Ð when one feels powerle ss, then, yes, the response is to enlist state power. Butler seems to suggest that attributing a sovereign power to the performative utterance (as she wrongly claims is done by MacKinnon) is nothing more than a symptom of a psychological longing for the so vereign nature of power in general .91 Her concern, which is shared by many critics of enlisting state power to counter hate speech, lies in the well -established history of discriminatory practices perpetuated by the state and maintained in law Ð granting th e state the power to regulate speech only provides more opportunities for the degradation of oppressed groups. ButlerÕs concern is warranted and worth our attention but is also, according to !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!,$!Ibid. Pg. 74. !,+!!MacKinnon, overstated. The concern over enlisting state power is its own psychological state, brought on by what MacKinnon calls the ÒtraumaÓ of McCarthyism. 92 In noting the back -and-forth trading of accusations of varying pathologies, perhaps some insight is to be gained regarding what is at stake for the opposing side s of this debate. My own concern with the debate over hate speech regulation consists mainly with the tenor of talking past one another rather than engaging in a fruitful dialogue. Each side poses legitimate concerns, and provides support for the legitimac y of those concerns with persuasive arguments. And yet, any practical recourse to subordination and inequality, as it is perpetuated by hate speech, is delayed by muddying the debate with each side accusing the other of pathology. A full analysis of the po wer (whether sovereign or not) of any speech act requires an analysis of the context in which the speech in question is uttered Ð for Austin, the Òtotal speech situation.Ó 93 What we say and do, and attempt to do and fail to do, with speech is always enmeshe d in a cultural matrix. Thus, ButlerÕs characterization of ÒtotalÓ in Òtotal speech situationÓ is problematic, if not plainly mistaken. It appears that Butler reads ÔtotalÕ from a Derridian standpoint and just such a reading, although informative philosoph ically, is not necessary for a politically conscious response to hate speech as speech act . Butler reads speech act theory and the Òtotal speech situationÓ as if Austin were arguing that an analysis of context requires a complete description of that !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!92 From Only Words , Ò[T]he examples that provide the life resonance of the expressive freedomÉderive mostly from attempts to restrict the political speech of communists during the McCarthy era. Through this trauma, the country relearned its founding lesson: not to stifle political dissentÓ (74 -75). Throughout Only Words , MacKinnon argues that the trauma of McCarthyism provides the psychological underpinings of current first amendment theory, with the protection of womenÕs inequality as one of the consequences. 93 J.L. Austin, 1962. How to do things with words , 2nd ed. Cambridge, Massachusetts: Harvard University Press. Pg. 52. !,,!!contex t. Austin does not suggest such an analysis of speech acts is possible; the total speech situation, for Austin, does not mean Òthe speech situation, totally specifiable and specified.Ó Furthermore, even if a complete description of the context were possibl e, such an analysis isnÕt necessary in order to determine which speech acts are performed with success. 94 Section III: The case of Anita Hill 95 MacKinnon uses the testimony of Anita Hill against Clarence Thomas as an example of one way the sexualization of women is done through words in a world in which pornography provides the definition of sex. MacKinnon writes: So far I have been discussing words of abuse uttered by dominant others and the way they work as acts of inequality. That sexual words make sex happen, with extended effects on women, is further supported by observing what happens when victims of sexual harassment speak the abuserÕs words, testifying to what he said. When she says what he said, what is she doing ? Anita HillÕs allegations of sexual harassment by Clarence Thomas in his confirmation hearing for the Supreme Court show how sexual words work as acts in racism and sexism by showing what happens when a woman, a Black woman, speaks in public the sex words a man spoke, in isolation, to her. 96 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!94 It is worthwhile to note here that the various examples employed by both sides of the debate over regulation are of both individual utterances as well as the speech of an institution. Matsuda focuses on the former while MacKinnon is concerned with what ÒpornographyÓ or Òthe pornography industryÓ has to ÒsayÓ about women. ItÕs not necessarily problematic to lump these two theorists together in this way, but itÕ s (once again) slippery. Not least of all because prohibition canÕt be done by a broad social institution, such as the media, or the pornography industry. ThereÕs no prohibiting these entities from doing or ÒsayingÓ something because, in fact, they are not codified entities. ,(!In the following section I will report on four intersecting themes and will attempt to keep my analysis of each distinct by clearing indicating when each theorist is quoted with in -text citations rather than endnotes. The four are: w hat Butler says as Butler in Excitable Speech , what MacKinnon says as MacKinnon in Only Words , what Butler says MacKinnon believes, and how I think Butler gets MacKinnon wrong. !,)!MacKinnon, Catharine A. 1993. Only words. Cambridge, Mass.: Harvard University Press. !! !$--!!MacKinnon is impressed by the pervasiveness of pornographyÕs hold on public consciousness. It seems that women are at a loss Ð there is no way in which what pornography says can be contradicted. And MacKinnon is right, to a degree; there is a strong pattern that happens to womenÕs speech that is supported by the discourse of pornography Ð for example, in sexual encounters a womanÕs ÒnoÓ is taken as Òyes.Ó Langton calls this illocutionary disablement Ð the speaker utters the words with a particular int ention in mind but her intention is thwarted. This same problem happens to Anita Hill when she testifies to her abuse at the hands of Clarence Thomas. HillÕs utterance Òhe sexualized meÓ gets taken as evidence of her own sexual prowess rather than as her v ictimization. Butler takes the various examples in MacKinnon's text of illocutionary disablement (here more precisely called illocutionary defeat ) as evidence that MacKinnon is positing a sovereign authority to speech acts Ð here the Òspeech actsÓ of porn ography. Butler takes the use of the trial by MacKinnon as revelatory. According to Butler, MacKinnon holds a serious of presuppositions about speech act theory that Butler takes to be false. MacKinnonÕs use of the Anita Hill case exposes those presupposit ions. Butler takes up the case to show her readers how precisely MacKinnon gets Austin wrong, mainly as an example of one way that MacKinnon attributes a sovereign power to the speech of pornography Ð what pornography says, goes. Butler writes: To the exte nt that the speaker of hate speech is understood to effect the subordinating message that he or she relays, that speaker is figured [by MacKinnon] as wielding the sovereign power to do what he or she says, one for whom speaking is immediately acting. Examp les of such illocutionary performative in J.L. AustinÕs How to Do Things With Words are very often culled from legal instances: ÒI sentence you,Ó ÒI pronounce !$-$!!you:Ó these are words of the state that perform the very action that they enunciate. As a sign of a certain displacement from the law, this very performative power is attributed now to the one who utters hate speech Ð thus constituting his or her agency, efficaciousness, and likelihood of being prosecuted. The one who speaks hate speech exercises a performative in which subordination is effected, however ÔmasqueradingÕ that performative may be. As a performative, hate speech also deprives the one addressed of precisely this performative power, a performative power that some see as a linguistic conditio n of citizenship. The ability to use words efficaciously in this way is considered to be the necessary condition for the normative operation of the speaker and the political actor in the public domain. 97 Butler identifies a possible contradiction in MacKi nnonÕs analysis: MacKinnon wants to enlist (and thereby empower women with) the same authority that the authoritative speakers at Anita HillÕs hearing use to silence her. As Butler sees it, MacKinnon is (perhaps subconsciously) thinking that the efficacy o f pornography is of the same kind as the that of legal speak (what the judge can do, ÒI sentence youÓ), and Butler sees this as problematic especially given that MacKinnon wants to employ the efficacy of legal speak against the efficacy of pornography. Mac Kinnon uses what happened to Hill at the Senate hearings as an example of what she means by pornographyÕs speech against women (and, as Langton explains, its illocutionary force) and, yet, as Butler sees it, MacKinnonÕs anti -pornography ordinance is an att empt to ÒgiveÓ that same power back over to an authoritative state. Butler reads MacKinnon et al. as identifying legal speak as a paradigmatic example in Austin (e.g. ÒI sentence you,Ó ÒI pronounce youÓ) of illocutionary force but thatÕs a crucial misreadi ng of Austin and MacKinnon et al. Legal speak is no more paradigmatic for Austin of illocutionary force than the act of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!97 Butler, Judith. 1997. Excitable speech: A politics of the performative. New York: Routledge. Pgs. 80 -81. !$-%!!christening a ship or the act of promising. The crucial misstep comes when Butler figures the performative as sovereign for these theori sts based on their use of these examples. Butler lays out what she takes MacKinnon to mean in the following: Understood as hate speech, pornography deprives the addressee (the one depicted who is at once presumed to be the one to whom pornography is addre ssed) of the power to speak. The speech of the addressee is deprived of what Austin called its Òillocutionary force.Ó The speech of the addressee no longer has the power to do what it says, but always to do something other than what it says (a doing distin ct from the doing that would be consonant with its saying) or to mean precisely the opposite of what it intends to mean. 98 The case of Anita Hill is an example of how a cultural context, created and maintained by a whole society, can bring about an atmosphere in which an entire social/political grouping of people get their illocutionary acts perverted. Butler rightfully charac terizes the scene as a context perfectly aligned to reappropriate a speech act Ð to get testimony taken in as confession. Butler writes: In that reappropriative reception by which testimony is taken as confession, the speakerÕs words are no longer taken a s communicating or performing what they appear to be doing (exemplifying the illocutionary force of utterance); they are, rather, a display or enactment of sexual guilt. As Hill utters the sexualized discourse, she is sexualized by it, and that very sexual ization undercuts her effort to represent sexualization itself as a kind of injury. 99 And again, further down: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!,+!Ibid. Pg. 82. ,,!Ibid. Pgs. 82 -83. !$-&!!This is what some would call a performative contradiction: an act of speech that in its very acting produces a meaning that undercuts the one i t purports to make. 100 In the larger social event of the trial Ð on the TV, in the room, by the whole wider audience Ð HillÕs words were taken up as confession. Confession is contrary to what she intends to do with her speech acts; namely, report her abuse . Through Austin we see that sometimes one or another illocutionary act is done despite the speakerÕs intention to perform a different illocutionary act. Unlike involuntary or unintentional action, cultural meaning dictates which illocutionary acts happen. A locutionary act can be unintentional (a slip of the tongue) but illocutionary acts are contextually and culturally specific (ÒpickingÓ is ÒchoosingÓ only when the context is such). Illocutionary acts can get done by a speaker who doesnÕt intend that par ticular act to get done and this is different from doing something unintentionally. For example, to say, ÒI did not intend to warn himÓ implies that warning is what happened regardless (or in spite of) the speakerÕs intention. According to Butler, the cons truction of the performative as sovereign includes the idea that illocutionary acts are never done involuntarily or unconsciously. But, of course, certain illocutionary acts are and can be done, on occasion, involuntarily and/or unconsciously. Sovereignty has no place in AustinÕs picture of performative speech . In the context of the senate hearings, no one can honestly say that Hill showed up intending to confess Ð her consent to that particular speech act is absent. I share ButlerÕs (and MacKinnonÕs) conce rn over the lack of consent, especially when weÕre !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!$--!Ibid. Pg. 84. !$-'!!talking about not having control over saying what one means . What I question is ButlerÕs suggestion that speech act theory presupposes an absolute power in doing what one intends to do Ð that we have the a uthority to always do what we say. Again, from Excitable Speech : To the extent that she speaks, she displays her agency, for speech is taken to be a sign of agency, and the notion that we might speak, utter words, without voluntary intention (much less unconsciously) is regularly foreclosed by this construal of pornogra phy. Paradoxically, the problem with the pornographic construal of her speech is that it sets her words [what she is taken as doing] against her intentions, and so presumes that the two are not only severable, but able to be posed against one another. Precisely through this display of linguistic agency , her meaning becomes reversed and discounted. The more she speaks, the less she is believed, the less her meaning is taken to be the one she intends. But this remains true only as long as the meaning she inte nds is consonant with the sexualization of her utterance, and the one she does not intend is in opposition to that very sexualization. 101 The intention of the speaker and the uptake in the hearerÕs reality are severable, and, indeed, can be at odds. HillÕs testimony specifically is about sexualization. The meaning she intends is, ÒHe sexualized me,Ó which is an accusation against Thomas. Because her testimony had to do with the sexualization of her person by another, in this context conditioned by pornograp hy, her testimony brought on the very sexualization that she wants to defend against. HillÕs case is an instance when the content of an utterance in some sense promotes the very severance between what one intend to do with oneÕs words and what happens (tha t one, in fact, donÕt want to happen). The case involved !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!$-$!Ibid. Pg. 84, my emphasis. !IÕll pause briefl y to note that Butler fails to distinguish LangtonÕs addition of the term Òillocutionary disablementÓ to MacKinnonÕs discussion of pornography and speech act theory. What Butler is critiquing in this section of Excitable Speech is a hybrid of MacKinnon and Langton. !$-(!!content of a report that is itself fodder for sexualization. The locutionary content of my illocutionary act is contributing to the severing of my will/intention from what becomes the social reality in the discourse. Such cases are exceptional and more likely to befall marginalized and oppressed groups. The hope is to change this. Butler says it is Òprecisely through the display of linguistic agencyÓ that the reversal of Anita HillÕs meaning occurs. It is as if the reversal is contained in the very act of speaking. Yes and no. Once again Butler overlooks the total speech situation Ð it is the context constructed and maintained by pornography that ÒproducesÓ the reversal of meaning. ItÕs not HillÕs age ncy thatÕs making the speech act co -optible (it is because she performs a speech act that there is something there to co -opt). Rather, it is the cultural climate in which she acts (is an agent) Ð a climate of pornography as normal sexual expression. The fa ct that Hill is caught in the bind of Òtestimony taken as confessionÓ that is wrong Ð thatÕs the harm, a harm that warrants some recourse. Butler and MacKinnon are as close to being on the same page as they ever are. Consider the following: There is a range of illocutionary acts that can be performed in any given context. The interaction between context and speaker is rich. Butler sees MacKinnon et al. as figuring the performative as sovereign Ð meaning, the illocutionary force as always efficacious. On e thing Hill does not do when uttering the words spoken to her is harass another in a sexual manner. She may not pull off testifying , in spite of her intention to do so, and she may (as both Butler and MacKinnon describe) pull off confession in spite of t he absence of intention to confess, but there are still quite a few illocutionary acts that are not done and are not even possible. And, yes, !$-)!!this example is a case of the illocutionary disablement of women created by pornography. MacKinnon writes: You are lowered by proving your injury. He is not. He allegedly said these things. If they were said, they were his words. She said them in quotation marks. But it is the woman to whom they are attributed when she speaks them. When she says them, it is believed t hey are true of her somehow, but not believed of him. ÉThe offensiveness, the dirt, the uncleanness stick to the woman, the woman of color in particular. Women know this. It explains their fear of speaking about sexual abuse in public, their sense of rev iolation when doing so, their shame. It is because of how they are seen. 102 Again, further along: Once you are used for sex, you are sexualized. You lose your human status. You are sex, therefore unworthy of belief and impossible to violate. Your testimon y that you were sexually abused proves your abuse, which defines you as sex, which makes it incredible and impossible that you were sexually abused. In a world made by pornography, testimony about sexual harassment is live oral pornography starring the vic tim. Because the account becomes a form of sex, the abuse is rendered consensual in the mind of the viewer. 103 MacKinnon argues that the kind of illocutionary infelicity (ÒdisablementÓ) witnessed at the Thomas -Hill hearings would be challenged for the first time under law with something like the proposed anti -pornography ordinance. According to MacKinnon, neither current rape law nor current sexual harassment law has found a way to challenge womenÕs lack of sexual credibility (i.e. the presumption that women fantasize or ask for sexual abuse). She says: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!102 MacKinnon, Catharine A. 1993. Only words. Cambridge, Mass.: Harvard University Press. Pg. 66. 103 Ibid. Pg. 67. !!$-*!!The challenge to pornography as sex inequality is the first time this dynamic has been confronted directly, by any law existing or proposed. Now resistance to that challenge, through invoking speech prot ection for pornography at work, is being used to attempt to undermine existing protections from sexual harassment and racial harassment as well. Stopping pornography, and with it the sexualization of aggression and legitimized use of women from brothels to courtrooms, is womenÕs only chance to gain, in or out of court, a voice that cannot be used against us. 104 It is unclear whether Butler takes MacKinnonÕs use of Anita HillÕs testimony as an instance of unobserved, internalized racism (here by MacKinnon), or just a problematic example (or both)? At a minimum, Butler is troubled by MacKinnonÕs use of HillÕs testimony as a ÒparadigmaticÓ example of pornographyÕs role in the reversal of speaker meaning (or, more specifically, illocutionary disablement); and ye t, Butler herself goes on to use the example of HillÕs testimony to elucidate LangtonÕs point: [J]ust as HillÕs testimony was converted within the Senate chambers into a confession of her complicity or, indeed, her powers of sexual fantasy, so the speech of the class of persons depicted by pornography, namely women, is converted into its opposite; it is speech that means one thing even as it intends to mean another, or it is speech that knows not what it means, or it is speech as display, confession, and e vidence, but not as communicative vehicle, having been deprived of its capacity to make truthful claims. 105 Butler and MacKinnon both are right to describe the speech situation in which Hill testified as one that turned HillÕs testimony into confession. Hi llÕs speech act that was intended to have the force of testimony got uptake as having the force of confession with the perlocutionary effect of the overt sexualization of the entire scene. And, as !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!$-'!Ibid. Pg. 68. 105 Butler, Judith. 1997. Excitable speech: A politics of the performative. New York: Routledge. Pg. 85. !$-+!!Butler has described above, it thus appears that Hill canno t do with her words what she wants to do. More from Excitable Speech : Indeed, the act of speech, though it signifies agency, undoes itself precisely because it does not say what it means; the act of speech implicates an always already active and choosing being, indeed, a consenting subject whose ÒnoÓ is always undercut by her implied Òyes.Ó Although this attribution of a reversed intention effectively violates the sovereignty of the speaking subject, it seems equally true that this account of pornography a lso exploits a certain notion of liberal sovereignty to further its own aims, insisting that consent always and only constitutes the subject. 106 Further along in the text, as she continues her assault on the Austinian speech act, it appears that Butler los es sight of the nature of authority as it is precisely constructed in AustinÕs project. Namely, Butler gives insufficient attention to the notion that the more authority the speaker has the less influence others have over what is actually said/done (versus uttered and intended) by the speaker in a given context. 107 Butler writes: For if one always risks meaning something other than what one thinks one utters, then one is, as it were, vulnerable in a specifically linguistic sense to a social life of language that exceeds the purview of the subject who speaks. 108 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!106 Ibid. Pg. 85, my emphasis. !107 As far as Butler is working within a Derridian framework, the speaker is not even in total control of her own intention. Intention is also socially constructed Ð thereÕs no part of the ÒindividualÓ that is not infused with soc iety. In the context of this project, MacKinnon and Butler are two theorists from different philosophical zones and I donÕt think we need to bring them together into one, shared frame of thinking. 108 Ibid. Pg. 87. !!$-,!!Butler figures MacKinnon as figuring the performative as sovereign and in so doing (in her quest to establish the sovereign nature of power as she sees it at work in speech act theory) Butler imposes a one -way street of power as though AustinÕs theory locates power only with the speaker. AustinÕs theory, however, provides a picture of authority that is wholly conventional; it is located, gained, wielded, and lost only within a complex social matrix. The very reason pornography has the ÒauthorityÓ to construct and maintain the illocutionary disablement of womenÕs speech about sex (e.g. Òno means yesÓ) is because that authority is ÒgrantedÓ and re -granted by an ÒaudienceÓ (here, the members of our linguist ic culture). Thus, women do not Òalways riskÓ meaning something other than what one wants to mean any more than pornography is always at risk of losing the meaning and hold on society that it currently enjoys. In some very generic way every speaker always risks illocutionary failure or illocutionary defeat. Situationally, itÕs more complicated. Women are subject to more risk of illocutionary disablement than the pornographers. Butler proposes a characterization of the performative (as it is employed in arguments for hate speech regulation) in which there is seemingly no escape from the pitfall of a type of silencing, discussed previously, which Rae Langton has termed illocutionary disablement . Concluding Remarks ButlerÕs interlocutors are exercised by the power of certain utterances to act . (Butler herself wants to distinguish between speech that acts and speech that Òacts onÓ the audience.) She takes those theorists to be exaggerating the power of speech and, yet , !$$-!!Butler appears to be exaggerating the opposite. She calls the picture of the performative, as it is found to be (by her) in MacKinnon et al, the ÒoverdeterminationÓ of language. What happens, rather, is that Butler overstates the underdetermination of th e performative Ð not only is the conception of the performative at work in MacKinnon not as deterministic as Butler describes, but Butler herself paints an Òall or nothingÓ picture of illocutionary force. Consider this: Sometimes when a punch is thrown it lands and sometimes it is blocked Ð and only when it lands does the Òthrown punchÓ become a Òhit.Ó Just because in this instance you got hit doesnÕt mean there is never an opening for counter -action; and just because sometimes, in some cases, you block th e punch it still does not follow that you will never be hit. Just because my speech act in this instance was infelicitous does not mean it will be in the next instance, in the next context. For Butler, it appears that thereÕs nothing between ÒsovereignÓ an d ÒimpotentÓ and in so doing she misses the opportunity to use speech act theory to its fullest potential as an approach to recourse against hate speech. No wonder thereÕs not a more robust explanation of resignification Ð we are unable to tell what resign ification entails because we do not have in Butler an analysis of the speech act. Resignification is a response to something Ð but to what? The ÒhailÓ calls the other into being Ð shifting the power of response onto the hearer in virtue of recognizing the hearer as an agent Ð the -one -who-disses unwittingly transfers some power to the responder, but without a more robust analysis of the speech act that is done by the disser we have no hope of contextualizing the hearerÕs response. !$$$!!HereÕs a shift in focus on the context: Look! The hearer is being uncooperative. And look how powerful and effective uncooperative engagement can indeed be. Now is the time to give that power to Anita Hill rather than the committee at the Senate hearings. Butler is overly committed to the pervasiveness of infelicity -- illocutionary defeat is but one possible infelicity, and infelicity happens. She thinks her interlocutors miss this idea on at least two counts: First, proposing legislation presumes there are at least some contexts in which infelicity can be written out. The law would make it so. And second, in MacKinnon et al. there is the suggestion that the same illocutionary act is sovereign in one area (for men, against Anita Hill) but not in another (for women, Anita HillÕs testi mony) perpetually resulting in the illocutionary disablement of women. When we subscribe to the claim that illocutionary acts are sometimes felicitous Ð sometimes the deed is done in the uttering Ð we need not subscribe (by some logical connection, as Butl er seems to claim) to the idea that a given speaker can have the Òfinal wordÓ in a moment. The done deed need not be the last deed; the dissed person can Òhit back,Ó e.g. with irony or reframing the deed so the deed is done but uncool or, for example, the insult is only a jest. This leads us to considerations of effective counterspeech. I turn now to a shift in focus from the role of the speaker to the role of the audience in any given speech situation and a concept I call uncooperative engagement . !$$%!!Chapter 4: Illocution, Intention, and the Role of the Hearer In the following discussion I introduce Grice with the interest of establishing alternate modes of social intervention, short of a call to the state. An analysis of the Gricean model of meaning wi ll provide an alternate view of the hearer/audience Ð one in which that role is quite powerful. In the preceding chapter we saw Butler attend to the feeling of helplessness on the part of the victim of hate speech Ð we are often undone by the force of the hate -speakerÕs speech Ð but we are also in a position to respond. Butler fails to attend to the role of the audience in speech act theory. In her construction of the enlisterÕs argument, Butler attributes to the enlisters a type of absolutism and yet she adopts a type of reverse absolutism Ð the performative is either sovereign or it is impotent Ð but such a construction is mistaken: sometimes the performative actually does work even though infelicity is always a possibility. More importantly, sometimes the audience can introduce infelicity into the talk exchange . As mentioned earlier, in Grice we see that humans are beings that interpret constantly Ð we are intensely social and we are intensely socialized to read each total speech situation Òcorrectly,Ó in accordance with the current cultural norms and conventions; in GriceÕs terms, to engage cooperatively . Someone hails me and IÕm there, responding. Learning to respond but to engage uncooperatively is perhaps the most difficult political move to make Ð the se situations have a manipulative/coercive dimension Ð but it is a possible move and one that is politically viable. !$$&!!Section I: Speaker Meaning In his much -cited 1957 paper on the subject, Grice proposes a psychological theory of meaning (as an alternat ive to the causal theory) in which meaning is determined by much more than the words uttered. The suggestion that utterances neither contain nor convey anything but their literal meaning is best characterized, and most widely cited, by Donald Davidson in h is piece, ÒWhat Metaphors MeanÓ (1978). Davidson claims that, quite simply, Òmetaphors mean what the words, in their most literal interpretat ion mean, and nothing more.Ó 109 He posits a causal relationship between the utterance and the hearerÕs response. If anything, according to Davidson, the metaphor nudges us to notice something, not unlike a bump on the head. 110 GriceÕs theory of meaning is in direct contrast to DavidsonÕs Ð it takes much more than something like a bump on the head to grasp the meaning of a n utterance. In Meaning, Grice begins by calling our attention to the difference between what he calls natural meaning and nonnatural meaning. The natural meaning of an utterance is less bound to convention than the nonnatural meaning, as in the sentence s ÒThose spots mean measlesÓ or ÒThose black clouds mean rain .Ó Those spots are measles and thatÕs what clouds look like when itÕs going to rain. Grice contrasts the former with sentences such as ÒThree rings of the bell means the Ôbus is fullÕÓ or ÒThat re mark means that his wife is indispensible .Ó111 As a first approximation, Grice contends that the nonnatural is cancelable Ð a notion he develops further when attending to conversational implicature Ð while natural meaning is not. In other words, it is possible !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!109 Donald Davidson, ÒWhat Meta phors Mean.Ó 32. 110 Ibid. 41. 111 Grice, 1957. Studies in the Ways of Words. 213 -214. !$$'!!that the driver of the bus got it wrong. One could respond, ÒBut the driver got it wrong, the bus isnÕt fullÓ while it does not make sense to report, ÒThose spots meant measles but she didnÕt have measles.Ó The rest of the 1957 paper lays out a series of examples that push this notion of nonnatural meaning. In these first few formulations of his theory of meaning, Grice confines his analysis to a speakerÕs/agentÕs nonnatural meaning when s/he u tters something (although all of his examples are non -verbal) to an audi ence on a particular occasion. Grice called it nonnatural occasion meaning , but it is commonly referred to in the literature as speaker meaning . For my purposes (finding ways to thwart the intentions and effectiveness of the hate -speaker) an analysis and application of speaker meaning will suffice. GriceÕs first two attempts at an adequate description of speaker meaning leave him unsatisfied. For S to (speaker) mean something S must int end to pro duce a belief in an audience. B ut consider, Grice says, that I leave a handkerchief at the scene of a crime intending to produce the belief in the detective that Smith is the culprit. SmithÕs handkerchief at the murder site may very well induce that belief in the detective even if I drop it accidentally as I flee, not intending to produce any belief at all in any audience by my accidental gesture. So this fi rst formulation is incomplete. Next, Grice considers King HerodÕs presentation of John the BaptistÕs head on a silver platter to Salome. Clearly Herod intends to produce the belief in Salome that John the Baptist is dead and intends that Salome recognize him as having that intention. And yet, similar to the case of SmithÕs handkerchief, Salome can come to believe that John the Baptist is dead regardless of HerodÕs intention to have Salome recognize that he intends her to believe !$$(!!that John the Baptist is dead. All she has to do is look at the severed head to have th e belief that the man is dead. There still appears to be a gap between HerodÕs in tention and SalomeÕs response. Anita Avramides explains why this second formulation still wonÕt do for Grice: What is missing is some link between the audienceÕs recognition of the speakerÕs intention and t he response the audience is intended to have. We need in the analysis a condition ensuring that communication is essentially dependent upon the audienceÕs recognition of the speakerÕs intention. Without such a firm anchoring in the psychological, there w ill be no difference between Òletting someone knowÓ (or Ògetting someone to thinkÓ) and Òtelling.Ó It is the latter that is crucial to understanding nonnatural meaning. 112 GriceÕs next example is meant to show the difference between Òlettin g someone knowÓ and Òtelling.Ó Suppose that I show Mr. X a photograph of his wife and Mr. Y together intimately posed . Grice draws our attention to the difference between showing Mr. X a photograph and drawing him a picture of his wife and Mr. Y together i ntimately posed. According to Grice the latter example captures my intention to produce a belief in Mr. X plus my intention that he recognize that I intend to produce a belief plus my intention that the belief Mr. X comes to have about his wife and Mr. Y is due at least in part to his recognizing my intention. It is this complex intention that is the sense of the expression ÒmeansÓ that Grice wants to illuminate. In the following passage, Avramides summarizes the point of the analysis: GriceÕs analysis of nonnatural meaning begins with the following rather obvious observation: the difference between a mere sound and an act of communication is that when there is communication, human beings with appropriate audience -directed beliefs and intentions produce th e sounds. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!112 Avramides, Anita. Pg 44 !$$)!!To capture this difference Grice makes it a condition of the analysans that the audienceÕs response be occasioned by its recognition of the speakerÕs intentions. As Grice explains, it must make a difference to the effect the utterance has on A (i.e., a difference to AÕs response) that A takes the utterance to have been produced with a certain intention to convey information. 113 Meaning, according to Grice, cannot be separated from intention Ð meaning is intending by uttering the expression that m y utterance produce a particular effect in an audience via the audienceÕs recognition that I have an intention to produce that effect. It is in just this way that GriceÕs theory of meaning (specifically, speaker meaning) prompts a closer look at the extens ive (and often subconscious) cooperation that both the speaker and the audience must contribute in any given conversational exchange. The players are hard at work (subconsciously, mostly) toward a shared end goal Ð communication! In order for an utterer to mean something in the Gricean sense, and their interlocutor to get their meaning, many overlapping assumptions are in play on both the part of the speaker and the hearer. GriceÕs nonnatural occasion meaning nicely illustrates the requirements on the audience to read the hate speakerÕs complex intentions and to fulfill some or all of them (but more on this later). A working definition of nonnatural occasion meaning from Grice goes like this: ÒU meant somethin g by uttering xÓ is true iff, for some audience A, U uttered x intending: (1) A to produce a particular response r (2) A to think (recognize) that U intends (1) (3) A to fulfill (1) on the basis of his fulfillment of (2) !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!113 Ibid. pg. 45 !$$*!!The above is taken from the version of ÒUttere rÕs Meaning and IntentionsÓ found in Studies in the Way of Words .114 Returning now to the example of Herod, Salome, and John the BaptistÕs head on a platter. Herod tells Salome that John the Baptist is dead by presenting her with his head. In order to say, a ccording to Grice, that Herod ÒtellsÓ Salome that John is dead (rather than merely Òlets her knowÓ) we must assume several concurrent intentions (in Herod) and simultaneous recognition (in Salome). Herod means (nn) that John is dead if and only if Herod int ends to produce response r (that Salome believe that John the Baptist is dead); Herod intends that Salome recognize Herod as having this intention; and that SalomeÕs response r arise at least in part because of her recognition of HerodÕs intention to produ ce that response. Grice recognized that often we (as speakers, wishing to communicate) intend to mean something in particular and we have not successfully communicated unless that intention to produce a certain response in our audience is recognized by the audience in question as, specifically, wishing to produce that particular response. Grice would say we have not ÒsaidÓ something unless this condition is met. With GriceÕs theory of nonnatural meaning we have the key element that turns noise into communication . I see the analysis of speaker meaning, coupled with an illustration of conversational implicature, as providing a schema, based on GriceÕs model, for interrupting the harm in hate speech. Cooperation with the underlying intentions of conversation is required. The hearer must attend to the Cooperative Principle Ð along with the maxims Quantity, Quality, Relation, and Manner Ð and assumes that the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!114 Ibid. 92. !$$+!!speaker is following along, and takes the speaker to assume that she (the hearer) is following along too. The hearer must infer the speakerÕs meaning, which is available to the hearer in virtue of these overlapping assumptions, along with background information and any shared knowledge that exists between the hearer and the speaker. The method of interruption that I explore I call Òuncooperative engagement.Ó I begin with several examples that illustrate nonnatural occasion meaning. To mean something through saying is to intend for the hearer to ÒgetÓ you. The speakerÕs initial intention is internally complex. T he audience is required to make several inferences, something akin to reading the speakerÕs mind. 115 The feature of GriceÕs work worth special attention is the role of the hearer and the indispensability of that role for utterance meaning (and, thereby, for the intended felicity of our speech acts). He explicitly attends to the importance of the role of the hearer (certainly more so than Austin), but even Grice fails to see the robustness of his own model when it comes to the hearerÕs involvement in what gets said. 116 But more on that later. The Cooperative Principle It is perhaps the simplest point that H.P. Grice ever made on the subject of meaning: when two speakers enter into any type of conversational exchange they do so cooperatively . Less simple is the s eries of overlapping intentions and assumptions that happen in rapid succession in the minds of each of the players in even the most !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!115 So much is going on, in fact, it is a wonder that anything ever gets communicated successfully, ever! Let alone the sheer magnitude and pervasiveness of successful conversational exchange. 116 In fact, I imagine that Butler would have found more support in her effort to show the supposedly sovereign authority of the speech act in GriceÕs model over AustinÕs. !$$,!!mundane conversational exchanges, as seen in the previous section, but, first and foremost, whenever we enter into any type of conversational exchange, we enter cooperatively. We begin with the expectation that all parties involved are following (implicitly, subconsciously) the Cooperative Principle and its attendant maxims. Grice introduces The Cooperative Principle in his w ork, ÒLogic and ConversationÓ: Our talk exchanges do not normally consist of a succession of disconnected remarks, and would not be rational if they did. They are characteristically, to some degree at least, cooperative efforts; and each participant recogn izes in them, to some extent, a common purpose or set of purposes, or at least a mutually accepted direction. This purpose or direction may be fixed from the startÉ But at each stage, some possible conversational moves would be excluded as conversationally unsuitable. We might then formulate a rough general principle which participants will be expected (ceteris paribus) to observe, namely: Make your conversational contribution such as is required, at the stage at which it occurs, by the accepted purpose or direction of the talk exchange in which you are engaged. One might label this the Cooperative Principle. 117 To illustrate the Cooperative Principle at work, Grice gives us the example of happening upon a stranded motorist. Player 1 in the exchange starts the conversation with, ÒIÕm out of gas,Ó to which Player 2 replies, ÒThereÕs a station around the corner.Ó In this example thereÕs a clear purpose or direction the conversation is meant to go. Player 1 takes Player 2 to mean that the solution to her problem is nearby Ð but that is not what Player 2 has actually said. Here are just a few of the facts that Player 1 (motorist) assumes Player 2 (passerby) to believe to be the case: 1. Said station is the type of station needed (here, a gas station) . 2. Said station is open. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!117 Ibid. 26. !$%-!!3. Said station is the closest one to us. 4. Said station is functioning at present. Note how much Player 1 (now the hearer) has to undertake just to ÒgetÓ what Player 2 is thinking. When we unpack what it means to follow the Cooperative Principle Ð even in this very simple exchange Ð we see various assumptions at play . In Gricean terms, each of the above assu mptions aligns with a general maxim for successful conversation, namely the maxims Quantity, Quality, Relation, and Manner. Again, from Logic and Conversation :118 1. Quantity Ð Make your contribution as informative as is required (for the current purposes of the exchange). Do not make your contribution more informative than is required. 2. Quality ÐDo not say what you believe to be false. Do not say that for which you lack adequate evidence. That is to say, try to make your contribution one that is true. 3. Relatio n Ð Be relevant! 119 4. Manner Ð Be perspicuous! In other words, be brief, be orderly, avoid obscurity of expression, and avoid ambiguity. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!118 Ibid. 26 -27. 119 Grice elaborates: ÒThough the maxim itself is terse, its formulation conceals a number of problems that exercise me a good deal: questions about what different kinds and focuses of relevance there may be, how these shift in the course of a talk exchange, how to allow for the fact that subjects of conversation are legitimately changed, and so on. I find the treatment of such qu estions exceedingly difficultÉÓ I, too, see a particular specialness to the maxim of Relation. It may be the almost constant attention to keeping our utterances relevant that ever gets anything like communication done. And, thereby, it will be attention and purposeful misreading of Relation that will present the opportunity for uncooperative engagement . !$%$!!Player 1 assumes that Player 2 is saying something true or at least for which she has good evidence (Quality). If it turns out thereÕs a closer gas station and Player 1 knew of it, then the utterance violates Quantity. ThereÕs also an assumption that said station is open for business and able to provide gasoline (Relation). If Player 2Õs response had been something like, ÒItÕs 9 AM,Ó Player 1 must assume that the time is relevant to the conversation at hand ( perhaps Player 2 thinks the gas station isnÕt open or may not be). If itÕs not Ð if Player 2 is just giving me the time Ð then Player 2 is violating the rule of Relation. If the response was ÒThereÕs a gas station around the corner but itÕs 9 AM,Ó Player 1 must assume that Player 2 thinks the gas station isnÕt open yet (or Player 2 is violating Quantity). The ÒreadingÓ of Player 2Õs response as Òthere is gasoline close by but not yet availableÓ is what Player 1 does readily Ð we all do when both players quietly go along with the assumption that the Cooperative Principle is being followed. The brief response by Player 2 is following the maxims Manner and Relation. If Player 2 had said something like, ÒThereÕs an off -brand station around the corner,Ó then Player 1 assumes that Ôoff -brandÕ is relevant to the conversation at hand. If either turns out to be false then Player 2 has violated one or more of GriceÕs convers ational maxims. Grice Ð interestingly, I think Ð draws an analogy between the above verbal exchange and nonverbal Òtransactions.Ó For instance, if you are assisting me to mend a car or bake a cake, I expect you will not hand me four screws when I only nee d two at that moment, or youÕve violated Quantity. If I need sugar, do not hand me salt (Quality). These analogies are relevant to what I regard as a fundamental question about the Cooperative Principle and its attendant maxims, namely, what the basis is for the assumption which we seem to make, and on which (I hope) it will appear that a great range of implicatures depends, that !$%%!!talkers will in general (ceteris paribus and in the absence of indications to the contrary) proceed in the manner that these pri nciples prescribe. [I]t is just a well -recognized empirical fact that people do behave in these ways; they learned to do so in childhood and have not lost the habit of doing so; and, indeed, it would involve a good deal of effort to make a radical departur e from the habit. 120 Grice sees the analogy between verbal and nonverbal utterances as illustrative of the commonality of the Cooperative Principle and its attendant maxims. I see the analogy between verbal exchanges and nonverbal transactions as relevant o n another level; namely, meaning arises through action. It is the act in Òspeech actÓ that is the relevant feature. It is the act that may harm someone, not the words. In Austinian terms, it is the illocutionary force of the utterance, uttered in a complex speech situation Ð and not the locutionary act Ð that is the relevant feature. When the maxims are violated, implicature arises. In the following section I explore GriceÕs notion of conversational implicature Ð a feature of language fundamental to the job of ÒreadingÓ the speaker badly and on purpose. Conversational Implicature As mentioned above, the calculations figured by both parties in any conversational exchange are complex, practically instantaneous, and often enough erroneous Ð but the truly amazi ng bit is that we get heard and understood much of the time. Grice describes the calculation for conversational implicature as follows: To work out that a particular conversational implicature is present, the hearer will rely on the following data: (1) the conventional meaning of the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!120 Ibid. 29. !$%&!!words used, together with the identity of any references that may be involved; (2) the Cooperative Principle and its maxims; (3) the context, linguistic or otherwi se, of the utterance; (4) other items of background knowledge; and (5) the fact (or supposed fact) that all relevant items falling under the previous headings are available to both participants and both participants know or assume this to be the case. A ge neral pattern for the working out of a conversational implicature might be given as follows: ÒHe has said that p; there is no reason to suppose that he is not observing the maxims, or at least the Cooperative Principle; he could not be doing this unless he thought that q; he knows (and knows that I know that he knows) that I can see that the supposition is that he thinks that q is required; he has done nothing to stop me thinking that q; he intends me to think, or is at least willing to allow me to think, t hat q; and so he has implicated that q. 121 Note how much the hearer has to do in order to ÒgetÓ the intended meaning of the speakerÕs utterance Ð leaving the hearer anything but powerless to respond in ways that interrupt the speakerÕs intention. Returning now to Pilot and Team Apple, imagine that Pilot is a member of the junior varsity team and knows that try -outs for the varsity squad are today, in the gym, at 3 oÕclock. Imagine that Captain Orange approaches Pilot in the hallway prior to try -outs. Captain Orange: ÒSee you today at 3 oÕclock.Ó Pilot: ÒIÕll be there.Ó Given the relationship and background knowledge that Pilot and Captain Orange share, we understand the above exchange as one in which Captain Orange means for Pilot to recognize her intention t hat Pilot try out for a varsity seat. In turn, Pilot recognizes that intention and, in reply, means for Captain Orange to recognize that she !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!121 Ibid. 31. !$%'!!recognizes that intention. What Pilot means by her response is that she plans on trying out. All through Logic and Conversation we see how struck Grice was with the difference between what is said and what is meant . He argues that Captain Orange means (something like) ÒI expect youÕll be at try -outs todayÓ when she utters Òsee you at 3 oÕclock.Ó Any other reading of ei ther utterance would presume that the speaker violated the maxim of Relation. Now, in this example, the utterance ÒI expect youÕll be at try -outs todayÓ is not what is said. What is said is ÒSee you today at 3 oÕclock.Ó Here is where a description of conversational implicature is helpful. The way that Pilot correctly ÒreadsÓ what Captain Orange means Ð in effect, reads OrangeÕs mind Ð is by assuming that Captain Orange is attending to the Cooperative Principle and maxims and, in turn, that Captain Oran ge assumes Pilot is playing along. Assuming that all parties involved in the conversational exchange are following the Cooperative Principle, and assume that of each other, then Pilot reads Captain OrangeÕs utterance as implicating that Pilot should try -out, otherwise the utterance would violate at the least the maxims of Quality and Relation. 122 There are endless, fun examples of purposefully violating one or more maxim in order to generate implicature. GriceÕs example: Player 1 says, ÒSmith seems to be gett ing onÓ and Player 2 replies, ÒHe hasnÕt been to prison yet.Ó Given the playersÕ shared background information, Player 2Õs response is (likely) obviously true to both, therefore a violation of Quantity (more information than required). Assuming Player 2Õs !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!122 There are a host of ways in which Pilot can Òget itÓ wrong. For instance, if C.O. is also the hall monitor then Pilot may take him to mean that he just got detention. Such a reading illustrates the possibility of uncooperative engagement. Pilot knows C.O. as the coach and the hall monitor (both social positions are held at the same time) and he shows up for try -outs rather than detention. Pilot has read the utterance as made by his coach and willfully ignores the utterance as made by the hall monitor. WeÕl l return to this example in the following chapter on ways to be uncooperative. !$%(!!utterance is relevant to the conversation at hand, we then Òget itÓ that Player 2 means Smith is less than well but better than incarcerated. An everyday example Imagine that my trusted housemate, who is also my friend, utters the words to me, ÒDinnerÕs ready,Ó and means something by them. Suppose that we have agreed that she is making dinner that evening for the house while the rest of us work. I know that dinner is being prepared for me so I continue to work expecting that IÕll be alerted when itÕs time for me to stop working and join the group. What she means by ÒDinnerÕs ready,Ó we assume (via conversational implicature) is ÒCome to the tableÓ and her intention is to get me to show up. A Gricean analysis unfolds as such: Speaker S (my housemate) means (nn) (ÒCome to the tableÓ) by uttering x (ÒDinnerÕs readyÓ) if and only if she intends É (a) to produce a certain response r (the belief that dinner is ready) (b) that I (her audience) recognize her as having the intention to produce response r in me. (c) that my recogn ition of her intention (a) is at least in part the reason that my response r arises. HereÕs where the doctrine of implicature comes into play: My belief that dinner is ready is secondary Ð or, even, unnecessary (do I really have to believe that dinner is r eady to know that IÕm meant to come to the table now?) Ð to the belief that I am to join my housemate for dinner now. The calculation that the audience has to do in order to fulfill !$%)!!the speakerÕs intentions is complicated and conversational. And, yet, we d o pull off this complicated calculation and instantly ÒreadÓ the intended response. Conversational implicature and the maxims that govern adequate communication help show how something like illocutionary construction is done (and so quickly!) by the audien ce. In saying, ÒDinnerÕs ready,Ó the speaker intends to get the response of you having the belief that you are expected at the table and she expects that you will do that by coming to the belief that dinnerÕs ready. If my housemate only intended to produce the belief in me that dinner is prepared then her utterance violates the rule of Relation Ð there is no identifiable reason for her to tell me that dinner is ready unless she is expecting that I am interested in knowing when dinner is ready. Section II: The connection between felicity and nonnatural meaning There are a myriad of ways, as Austin noted, that a speech act can be unhappy. Sometimes the deed gets done; sometimes the deed does not get done; and sometimes the deed is done but infelic itously Ð it is flawed in some way but still done. 123 The relative happiness/unhappiness of the speech act, in Austinian terms, is an interesting concept, rich with epistemological merit. It is notable that Austin introduces infelicity early on in How To Do Things With Words .124 Long before he introduces the locutionary/illocutionary/perlocutionary distinction, he introduces the idea that the performative utterance can fail in a multitude of ways. This from How To Do Things With Words : !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!123 The richness inherent in the concept of infelicity is an important concept for the development of a third path, but more on that in the next chapter. 124 Austin, Lecture II. !$%*!!To bet is not, as I point ed out in passing, merely to utter the words ÔI bet, etc.Õ: someone might do that all right, and yet we might still not agree that he had in fact, or at least entirely, succeeded in betting. To satisfy ourselves of this, we have only, for example, to annou nce our bet after the race is over. Besides the uttering of the words of the so -called performative, a good many other things have as a general rule to be right and to go right if we are to be said to have happily brought off our action. What these are we may hope to discover by looking at and classifying types of case in which something goes wrong and the act Ð marrying, betting, bequeathing, christening, or what not Ð is therefore at least to some extent a failure: the utterance is then, we may say, not i ndeed false but in general unhappy . And for this reason we call the doctrine of the things that can be and go wrong on the occasion of such utterances, the doctrine of Infelicities .125 In general, a speech act is unhappy if some or other sin is committed ag ainst one of the following six rules: (A) There must exist an accepted conventional procedure having a certain conventional effect, that procedure to include the uttering of certain words by certain persons in certain circumstances. (B) The particular persons and circumstances in a given case must be appropriate for the invocation of the particular procedure invokes. (C) The procedure must be executed by all participants both correctly and (D) Completely (E) Where, as often, the procedure is designed for use by personas having certain thoughts or feelings, or for the inauguration of certain consequential conduct on the part of any participant, then a person participating in and so invoking the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!125 Austin, pg. 14. !$%+!!procedure must in fact have those thoughts and feelings, and the participants must in tend so to conduct themselves, and further (F) Must actually so conduct themselves subsequently. AustinÕs paradigm example is of a marriage ceremony gone awry. All the contextual, conventional relationships must be in place if two people are to happily perform the speech act of marrying. For instance, if one or the other participant really does not want to marry the other (i.e., the act is insincere Ð a type of abuse) then they do not felicitously marry. If the officiant is not sufficiently certified, they do n ot felicitously marry (i.e., a misexecution Ð the act misfires). In some states, if the two are of the same gender, they do not felicitously marry. All while uttering the words, ÒI do.Ó The above are examples of a few infelicities that can interrupt the intended speech act Ð the act is done but flawed. Except for maybe the last: It is interesting to note that uttering the words ÒI doÓ in the context of a marriage ceremony but in a state in which it is expressly illegal to marry someone of the same gender as you is nothing more than making noises, at least when it comes to the felicity of the speech act of marrying. Here IÕd like to pose a question to which I donÕt yet have the answer: Is it that the intended illocutionary act was not done or that there wa s no illocutionary act? An answer to this question will have something to do with whether our analytical focus is the speaker or the hearer. For example, letÕs imagine that a non -speaker of Italian is prompted to say various cuss words in Italian to an aud ience of Italians. Does she cuss? Perhaps not, but she does something. Mimic? Recitation? Similarly, if you call the !$%,!!Queen Òfat and uglyÓ itÕs unclear that you can accomplish insulting her Ð a commoner cannot accomplish that act in relation to the Queen Ð but do you actually perform no illocutionary act? ItÕs exciting to imagine that if everyone in the world held that much respect, we would do away with hate speech. When weÕre focused on illocutionary acts, it makes more sense to me to say that the intended illocutionary act may not get done but that some illocutionary act is accomplished. Illocutionary acts are socially constructed Ð which makes them dynamic, sometimes unavoidable, but also malleable. So, the audience has the power to make the hate speaker no more. The objective of this project is to cultivate situations/conventions in which hate speech is a non -starter Ð it doesnÕt get done. In other words, a world in which there is no convention for hate speech. Through a Gricean lens we see the role of th e hearer as particularly significant for the felicity of the speech act. The hearer not only has to read the situation but also has to assume that the speaker is following the maxims (Quantity, Quality, Relation, Manner) Ð or that the speaker is purposeful ly violating one or more of those maxims to generate implicature. When all is read by the audience ÒcorrectlyÓ or ÒappropriatelyÓ then we may call that uptake (an Austinian term). Thus, (and hereÕs the rub) the hearer can also interrupt an illocutionary ac t by engaging in unexpected and unconventional ways. Some things just donÕt get done if maxims are not followed by the speaker and inferences are not made by the hearer . For instance, to invite felicitously the speaker requires more on the part of the hear er than to simply ÒhearÓ (or, we would also say, ÒreceiveÓ) the invitation. The speaker has various intentions and the hearer reads the !$&-!!intentions but also fulfills them Ð thus, there are two ways the speakerÕs act can be thwarted. Imagine Player 1 (speake r) says to Player 2 (invitee), Òjoin me.Ó (The words used to invite can range from the informal Ð ÒJoin meÓ Ð to the formal Ð ÒYou are cordially invited to attendÉÓ) On this model, a break down of the act looks like the following: i. Player 2 takes Player 1 to be sincere (which, i n this instance, may mean that Player 2 takes Player 1 to be intending to invite, or serious about inviting and not joking around ).126 ii. Player 2 takes Player 1 to be providin g all the relevant information, at least for this moment in t he conversation. (If Player 2 asks Player 1 where the event is taking place and she respon ds that she doesnÕt know, then Player 2 will justifi ably reconsider whether or not Player 1 Õs invitation is ÒrealÓ). iii. Player 2 takes Player 1 to be saying something r elevant in that, for instanc e, if Player 1 goes on to discuss colonizing Mars, Player 2 may take Player 1 to not have intended to invite her to anything possible at all. If you invite Ð you say, Òjoin meÓ Ð but you give a location that cannot possibly be met by the recipient (ÒMarsÓ) then you havenÕt really accomplished inviting the person. If you invite Ð you say, Òjoin meÓ Ð but youÕre visibly intoxicated when speaking then you !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!126 If we were talking about constatives (rather than performatives) the maxim of quality would refer specifically to truth or that the speaker has reasonable evidence to say what she says. But weÕre notÉperfomatives are the not the sort of th ings that are true or false. Rather, the performative is taken to be sincere when the Cooperative Principle is being followed. !$&$!!havenÕt felicitously accomplished inviting the person. Just as we have seen w ith Grice, AustinÕs picture illuminates the web of complications and complexities that both the speaker and the hearer must interpret and navigate in order to get anything actually said. For Grice, i n order for the utterance to count as a ÒrealÓ invitation (likewise, for Austin, for the speech act to be felicitous), Player 1 assumes that Player 2 assumes that Player 1 is following the maxims of Quantity, Quality, Relation, and Manner. Likewise, Player 1 assumes that Player 2 is following all the same maxims . Background information and any sha red knowledge there is between Player 1 and Player 2 will also inform how closely everyone is assuming everyone else is following the maxims . If the speaker is someone who has bullied or alienated the hearer regularly i n the past then the hearer likely will infer that the speaker is not being truthful or real in her invitation. Plainly put, the hearer may take the speaker to be playing a cruel joke or trying to be hurtful if the speaker is someone who has made it known t hat she doesnÕt appreciate your company. This is but one example showing the role of the hearer in the felicity conditions of the speech act Ð the hearer must assume that the speaker is following the maxim of Quality (and Quantity, Relation, and Manner) an d can, given the conditions and background information, infer otherwise. To determine the illocutionary force of an utterance we typically attend to the speaker and the conditions that accommodate the speaker in accomplishing her speech act felicitously. That is to say that AustinÕs model focuses on the speaker and the act while GriceÕs model attends more directly to what gets said, which includes the role of the hearer. !$&%!!In short, a Gricean lens gives us a picture of what the speaker is attending to but also what the hearer must attend to in order for the invitation to get done as an invitation. Continuing on with the example of inviting: Consider again for a moment the violation of Quantity that you have performed if, for instance, you invite Ð you say, Òjoin meÓ Ð but tell the recipient that the party is Òsomewhere on Main StreetÓ then you havenÕt really accomplished inviting the person. In fact, you may have accomplished something entirely different (via implicature). The speaker utters the sentence with the intention that the hearer will read their intention as inviting. The hearer is supposed to hypothesize and act on the presumed intentions of the speaker. And here we see that the hearer can easily hypothesize and act on the idea that the speaker has o ther intentions Ð the intentions can be chosen by the hearer to a certain degree. One model of uncooperative engagement is the Òmessing with Ó the intentions of the speaker Ð deciding which intentions you will respond to and act on. Even when the speaker is doing fine, the hearer can do stuff to interrupt the felicity of the illocutionary act. Another mode of resistance: Viewing the speaker as unintelligible. In ordinary cases, all parties involved assume that we are following the maxims, and assume that eac h of us take the other to be following the maxims. The really beautiful part of this coming together of Grice and Austin is how we see that the hearer is anything but powerless. This one point is actually so harmonious with ButlerÕs proje ct, if she could only see it. E very utterance in a conversational !$&&!!exchange is interpretable and malleable but also forecloses a certain number of responses. Section III: Hate speech GriceÕs theory illustrates a key element of what delineates some utterances as Òhate spee chÓ: the audienceÕs recognition of the speakerÕs intention to produce response r is what communicates degradation, objectification, and so on and so forth. For example, leaving a pornographic image on your co -workerÕs desk is not merely sharing a picture Ð itÕs sexual harassment in virtue of the speakerÕs intention to have the audience recognize the speakerÕs desire for a particular response to ÒsharingÓ that particular image. ItÕs suggestive for our analysis of hate speech that the utterance, for Grice, is an act and not necessarily a verbal one; in fact, most of GriceÕs examples are nonverbal. For Grice, itÕs the act that has meaning, not the sentence or the words themselves. Note all the nonverbal examples given by Grice: John the BaptistÕs head, laying m oney down on the counter at my regular tobacconistÕs, drawing a picture of Mr. XÕs wife. Likewise, itÕs the act of the student at Stanford defacing the poster of Beethoven that is relevant for understanding the move as an instance of hate speech. What the speaker means (nn) is unpacked by an analysis of conversational implicature. Even the utterance ÒItÕs rainingÓ is only merely an expression or report outside of context. But, of course, no utterance is outside of context Ð just simply in some context the ut terance ÒItÕs rainingÓ is just a description. The act of the Stanford student and the act of the pornographer are the !$&'!!moments of analysis for us. The vehicle is language Ð we need language in order to read the meaning of the act Ð but the speech is not the object of analysis. Torture ItÕs notable (and curious) that the clearest illustration of what Grice means by speaker (or nonnatural) meaning that he provides comes from the example of torture. Applying thumbscrews, the ÒspeakerÓ has the following layered intention: (1) that audience A (the tortured) produce particular response r (giving the torturers the information they want to hear); (2) that A recognize the speakerÕs intention to produce response r; (3) that A fulfills (1) in virtue of fulfilling (2). When being tortured for information it is abundantly clear to the ÒaudienceÓ that the ÒspeakerÕsÓ intention is that A produce a particular response (again, giv e the torturerÕs the information they want), that the torturerÕs intend for A to recognize their intent to produce this particular response, and that the torturerÕs intend that if A provides them with the information they want to hear that such a response will occur at least in part because of AÕs recognition that the torturerÕs intend for A to recognize this intention. In brief, when tortured, it is simply known (if such a thing is really ever possible) that a particular multi -layered intention is at play. Speaker meaning is all about intention , so no wonder the clearest examples of speaker meaning come from situations in which the speakerÕs intentions are clear and likely not to be misread. It is for this very reason, however, that information garnered under duress is never totally trustworthy. GriceÕs theory of speaker meaning tells us why. !$&(!!Sexual Harassment IÕll borrow and re -imagine another example from Grice to illustrate an instance of hate speech: Imagine that Mr. X draws a picture for Ms. Y, in the presence of Ms. Y (and possibly other coworkers), of Mr. X performing a sex act with Ms. Y. As Grice notes, all the features of ÒsayingÓ something (here an instance of sexual harassment) as in ÒtellingÓ someone something (as opposed to Òletting someone knowÓ or Ògetting someone to thinkÓ) are present: In drawing a picture (versus showing a photograph) Mr. X cle arly intends to produce a particular response in Ms. Y (the belief that she is an object of sexual interest, perhaps to intimidate Ms. Y, for her to believe that she is rapable). Ms. Y recognizes Mr. XÕs intention to produce this particular belief (althoug h it may be a number of different propositions, the general belief is the same). And, finally, Ms. YÕs response arises in part on the basis of her recognition of Mr. XÕs intention to produce the belief that she is an object of sexual interest. It doesnÕt s eem or feel like it but the hearer has to do a lot in order for the speaker to succeed at his intention. What must the hearer do in response in order for the speaker to have his way? The speaker has the intention to bring about belief p (along with a host of subsequent beliefs). The hearer has to recognize the speakerÕs intention to bring about just that in order for the utterance to be a successful piece of hate speech, according to this view. Imagine an example in which the hate speaker gets it just right and pulls off precisely what he wants to pull off. It strikes me how amazingly terrible it is that the above situation is so readily intelligible for women. The intention to intimidate or denigrate or simply sexualize is !$&)!!right there Ð instantly readable. Even more terrible is the fact that it is provides the space for the harasser (or the establishment that supports such behavior) to manipulate the hearerÕs response even further Ð it is precisely the fact that the hearer has to do so much work in any given conversational exchange that makes it the case that the speaker can get out of admitting to a particular intention by saying that he was simply Òmisread.Ó The speakerÕs Òwiggle roomÓ to say he was misinterpreted is a pervasive phenomenon applicable to mos t instances of hate speech Ð and itÕs a problem. The joke Consider the following: ÒIÕm sick of all the Irish stereotypes. As soon as I finish this drink IÕm punching someone.Ó And, now, consider how you ÒgotÓ the joke. ItÕs safe to say that the intended r esponse the speaker wishes to elicit from the audience is laughter. The utterance doesnÕt play as a joke unless my audience produces that expected response (laughter or, perhaps, the belief that I am telling a joke). But my audience must also recognize tha t I intend that response and her laughter must be in part in virtue of her recognition that IÕm looking for that laughter. Since the intended response in integral to the joke playing correctly Ð it is, quite literally, not a joke otherwise Ð jokes provide rich material for imagining ways to respond to hate speech. One way of perpetuating hate is through joke telling; specifically the availability and complacency surrounding racist/sexist/heterosexist joke telling. That availability helps maintain institut ionalized oppression through microaggressions. With the help of !$&*!!GriceÕs model, a way of thwarting the intended response from the hate speaker is imaginable. We continuously come back to the idea that the speech act doesnÕt get done (in the Gricean sense) without a lot of ancillary information and, more importantly, without the hearer Òplaying along.Ó As Avramides says of Grice: ÒIt must make a difference to the effect the utterance has on A (i.e., a difference to AÕs response) that A takes the utterance t o have been produced with a certain intention to convey information.Ó 127 It is quite relevant to hate speech in particular that the audience (either those who share the hate, or the hated, or both) respond however they respond in part by virtue of recognizin g the speakerÕs intention. In just this way it makes sense to call it ÒhateÓ speech. The hearer must find the speaker intelligible. Hence, one way of performing Òuncooperative engagementÓ is to purposefully (or at least pretend to) find the speaker unintel ligible. Giving the speaker the impression (whether itÕs totally true or not) that they are unintelligible is also a distinct form of recourse to hate speech Ð distinct from counterspeech and walking away. Note that both situations Ð counterspeech and walking away Ð are situations in which the speaker knows they have been read correctly, that they are intelligible. And now, finally, allow me to turn to what it may indeed look like to engage uncooperatively. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!127 Avramides, pg. 45. !!$&+!!Chapter 5: Uncooperative Engagement: An Active Response to Hate Speech Allow me to call your attention one last time to the quote wit h which I began this discussion of possible interventions on hate speech, ÒThe total speech act in the total speech situation is the only actual phenomenon which, in th e last resort, we are engaged in elucidating.Ó 128 This project is about how the social construction of reality via illocutionary force can be interrupted and redirected for the better. As mentioned in Chapter 1, i n a world in which people are placed in group s of varying social and political import and aligned hierarchically within and among those groups, subordination is something that happens, and sometimes it is done through speech Ð ÒdoingÓ hate is sometimes done simply by speaking hate and, in this way, h ate speech not only perpetuates oppression but is itself an act of subordination. There is no escaping power relations in the social world (likewise, there will always be the ÒdissÓ even if we intervene on hate speech) Ð the question is, given that power r elations are capable of being manipulated, how do we manipulate them to intervene on hate speech? What is often ignored is the significant role of the hearer in any given conversational exchange. It is exciting and interesting to return to Grice since most of the theorists who engage the problem of hate speech do not attend to the significant role of the hearer. Most of their time and energy is devoted to showing the harm in hate speech done by the speaker. For us, here and now, the point is that the hearer is an important part of the total speech situation, with a role in the speech act !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!128 J.L. Austin, 1962. How to do things with words , 2nd ed. Cambridge, Massachusetts: Harvard University Press . Pg. 148. Quoted at the top of Ch. 3. !$&,!!and moves that can be made. Instead of closing out speech act theory, as Butler may (unintentionally) propose, we can open it up with a shift in focus to the role of the hearer. Now, we have clearly seen that Butler has read ÔtotalÕ in Òtotal speech situationÓ as totalizing . As clear as that appears to Butler, it seems equally clear to me that ÔtotalÕ can and should be read here in a non -totalizing way. At the end of the day, all the pieces and parts of the context must be taken together in order to elucidate the speech act Ð the total act is entirely conventional and, thus, culturally located and specifiable (and perhaps unavoidable in certain situations) 129 but not exhaustivel y determined or determinable. ThereÕs no ontological totality needed here. It is a strong feeling of helplessness on the part of the audience (the targets of hate speech), Butler believes, that motivates the call for state intervention. I take Butler seri ously on the following point: the call for authoritative intervention reveals the feeling of helplessness/powerlessness on the part of the caller. I have argued that the possibility of formulating concrete, manageable interventions does not require or nece ssitate support of government -backed legislation (even the relatively weak intervention that is the Dworkin -MacKinnon anti -pornography ordinance). I imagine an active response to hate speech that can be described, taught, and employed. Of course such a for mulation is necessarily incomplete and open to failure, but that need not mean that the formulation is indecipherable or unmanageable. Sometimes the promising isnÕt accomplishedÉbut sometimes it is! I suggest we take another page from AustinÕs playbook and look to what we actually do (when we are our best, most clever selves in the face of hate !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!$%,!It is a note from my teacher, Dr. Jamie Nelson, that I often reiterate to my own students: Just because social construction is constructed and requires maintenance does not mean it is easily escaped or unavoidable. !$'-!!speech) in response to instances of hate speech Ð youÕll note that what I call for is a move with which we are intimately familiar. On the ground is where we will fi nd interventions that are describable and manageable but are not dependent upon the coercive power of the state. A response to hate speech has got to be more than counterspeech Ð ÒjustÓ counterspeech is too much like the liberal response (the Òmarketplace of ideasÓ approach). And itÕs got to be more than merely Òturning awayÓ (ignoring speech takes on the myth that words do not wound). Grice sees speaking as calling the other into cooperation. The call to cooperate brings with it a tiny element of suppress ion of counterspeech. What would it look like to resist the suppression of counterspeech in answering the call to cooperate? I believe there is an active response to the hate speaker that is not direct counterspeech and it is not simply turning away Ð ther e is a third path; namely, a refusal on the part of the hearer to work out or ÒreadÓ the speakerÕs intended meaning. Refusing to work out the speakerÕs intended meaning is one way that people mess with the expected relationship they may have with the speak er Ð sometimes to play out their disrespect, sometimes just to be playful. Young people are especially good at this: ÒCome to dinner.Ó ÒBut you didnÕt tell me the time.Ó Or, letÕs say Pilot doesnÕt show for try -outs. Captain Orange: ÒI didnÕt see you at tr y-outs.Ó Pilot: ÒBut you didnÕt tell me where.Ó Something more than Òturning awayÓ or direct counterspeech is an intervention that both Butler and MacKinnon will appreciate and can incorporate into their existing theories. I propose that we call this third path uncooperative engagement . Uncooperative !$'$!!engagement may be supported conceptually by judicial authority , but it is not maintained or enacted by the coercive power of the state, and it is not turning away or sticking your nose in the air or letting the m know you are offended. I call this uncooperative engagement because it is engaging in the conventional moves dictated by the total speech context Ð it is engaging the speaker as intending to produce a certain response, even if I thwart that intention wit h an unexpected response. I call it uncooperative because the kind of engagement in play is a Òmessing aroundÓ with GriceÕs Cooperative Principle Ð i.e., I recognize the intention but do not Òplay alongÓ with the expectations of the speaker. In the spirit of Austin, there arenÕt necessary and sufficient conditions for engaging uncooperatively in the interest of thwarting an illocutionary act. Just like the conditions for pulling off an illocutionary act cluster into rough categories, ways of engaging uncoop eratively can also cluster in various ways, but are not absolutely delineable. Perhaps what Austin was thinking about in building his chart of hitches, hiccups, and the like can be seen as an opportunity for engaging uncooperatively. Infelicities 130 Misfires Abuses Act purported but void Act professed but hollow A. Misinvocations B. Miexecutions A. Insincerities B. ??? A.1. ? A.2. Misapplications B.1. Flaws B.2. Hitches Could we imagine that a type of abuse in the above chart Ð namely, the space that Austin filled in with a question mark Ð could possibly be something like the audience !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!$&-!Ibid. Pg. 18 !$'%!!(rather than the speaker) generating an unhappy performative? I see the ultimate objecti ve as making it ÒuncoolÓ to diss in a particular way ; namely, that the conventions that make hate speech what it is will no longer be available . Just as mores are established and people are gotten to internalize them, certain customs can be established (by an authority) that in turn (over time) determine which moves are socially available. When a social gaffe has been made, t he skilled hostess can shift the position of the speaker from one of Òsocial offender Ó to Òregular partygoer. Ó An utterance as seeming ly innocent as ÒI would never paint a room yellow,Ó (in the presence of your hostÕs yellow dining room) can be shifted from an insult to a remark with a quick -witted response, ÒYes, it takes a certain boldness doesnÕt it? I didnÕt think I had the chutzpa e ither.Ó Such a subtle move, when practiced and performed at the right moment, can diffuse the potentially awkward (or even hostile) speech act. The kind of move made by the skilled hostess is the kind that can thwart the intention of the hate speaker as we ll. And sometimes, if desirable, it can do this kindly , providing the speaker with the opportunity to abandon their original intention for a new, less harmful one (see the example of Òthe threatÓ below). I hope to show that uncooperative engagement is a le ss antagonistic response than direct counterspeech or turning away. As moves that are made in this social/political game, it has a different spirit Ð a tone of friendliness that I believe will work to the advantage of motivating social change. This kind of active response is one that would resonate with Butler , I believe, because the hearer gets to construct what the speaker did Ð weÕre still working within a set of conventions but the illocutionary act is not absolutely fixed. The norms set up what !$'&!!would h appen if the hearer were optimally cooperative, but otherwise, all sorts of hitches and hiccups can be motivated by the hearer. What you actually pull off in way of illocutionary acts is not absolutely bound to the speakerÕs intention. Consider the followi ng example (borrowed from the television series, ÒArrested Developme ntÓ) as a first look at where lies the possibility of uncooperative engagement . This example showcases the complexity of the context, the plethora of communication moves, and the social co nstruction of illocutionary force done by the audience. Additionally, as an analytic tool the Austin/Grice picture helps to sort out things that are going on in a complicated communication situation such as this: Recently kicked out of his house, Tobias pl ans to reinsert himself by posing as a British housekeeper (as the narrator notes, it is the exact plot of ÒMrs. DoubtfireÓ with a bit of ÒMary PoppinsÓ thrown in). He dons a wig, glasses, prosthetic nose, stomach and breasts, dress, and an accent. He pres ents himself to his family as a British nanny (ÒMrs. FeatherbottomÓ) applying for a housekeeping position. His wife immediately recognizes him as Tobias but she allows him to stay and pretend to be Mrs. Featherbottom because she recognizes his attempt to d eceive as his desire to be near his family again after moving out. Tobias believes he has successfully disguised his true identity and that his family believes him to be Mrs. Featherbottom in virtue of his disguise. Tobias originally intends not to be reco gnized as anyone other than Mrs. Featherbottom. (Alas, his family immediately recognizes him. ItÕs his obliviousness of his own ineptitude that makes the gag funny.) On this particular occasion, Tobias means(nn) by wearing a disguise to be disguised Ð he intends for his audience to believe !$''!!he is a British nanny. Tobias intends to produce in his audience a particular response (that they take him to be Mrs. Featherbottom) and that their response is at least in part due to their recognition that he has this pa rticular intention. He presents himself as Mrs. Featherbottom and he means to be taken to be Mrs. Featherbottom. Eventually Tobias wants to Òget discoveredÓ as himself. He continues to work as a nanny for the family, and wears Mrs. FeatherbottomÕs wig, no se, glasses, and dress, but lets his five oÕclock shadow grow in. But he doesnÕt get to mean, ÒLook! ItÕs me, Tobias,Ó because his original disguise failed Ð he was never recognized as being anyone but Tobias. 131 He intended to produce a response (that his f amily take him to be Mrs. Featherbottom) and he got the response he expected but only because his family made certain inferences about his true desire and played along with that desire (and not with his original intention). It turns out heÕs the only one n ot in on the joke. On this latter occasion, Tobias does not communicate what he intends to communicate because of the recognition by his audience of his meaning as something other than his intention. Tobias is the subject of the joke rather than the protag onist and in this way the example is almost the cruelest sense of merely Òletting someone knowÓ versus ÒtellingÓ Ð Tobias thinks heÕs telling his audience something but he only succeeds at letting them know. In much the same way that HerodÕs intention is i ncidental to SalomeÕs response Ð she comes to believe that John is dead because his severed head is on a platter and not because Herod presents her with that platter. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!$&$!Tobias in costume is not the funny element of this story line; whatÕs funny is that Tobias doesnÕt get to be discovered as himself in drag because he didnÕt pull off the original play Ð thereÕs no discover y since he didnÕt successfully dis guise himself in the first place. !!$'(!!In the following I hope to show the possibility of an active response to hate speech in w hich we harness the phenomenon of infelicity to shift the illocutionary act of the speaker. In the interest of elucidating uncooperative engagement as a mode of resistance, consider the following examples of various contexts in which uncooperative engageme nt is in play. As mentioned above, uncooperative engagement can be clustered into rough categories of like types. In the following, I consider a series of examples that run the gamut of what we call hate speech in order to elucidate the idea that one move to be made is to engage the hate speaker but uncooperatively. The Ujamaa Incident Recall that the Ujamaa Incident at Stanford originated as an argument between two white freshmen and a Black student over the ethnicity of Beethoven. A poster of Beethoven w as defaced by the white students and pinned to the door of the Black student. There was another poster, this one advertising a Black fraternity dance, also found defaced. The word ÒniggersÓ had been written in large letters across the face of the poster. In this instance of hate speech the intended audience is clear: Ujamaa is the Black theme house on StanfordÕs campus. The context is just right for ÒreadingÓ the message the white student wishes to send. The illocutionary force of the speech act is to put the Black student Òin his place.Ó This act was also done with certain Gricean intentions. For the sake of argument weÕll say that t he speakerÕs intention is to get the Black student to come to the belief that the argument that Beethoven could be of Africa n descent is !$')!!ridiculous, laughable. The speaker intends that the audience come to that belief in part in virtue of their recognition that the speaker has that intention. As all acts that are bound by convention, altering a famous image is not intrinsicall y hateful. The French word detournement 132 (roughly translates to ÒabductionÓ or ÒembezzlementÓ) identifies the co -opting and altering of famous paintings, documentaries, newspapers, and books seeking subversive ideas in the found objects of popular culture. It was considered a revolutionary act, h elping to channel the frustration of the Paris student riots of 1968. One can imagine that if the ÒdefacedÓ poster were framed and hung in a place with some prestige that the intention of the speaker to reduce the Black studentÕs argument to parody would b e deflated. He is now ÒreadÓ as providing an argument for BeethovenÕs Black heritage, rather than the other way around. The response engages with the original intention of the speaker but doesnÕt play along. 133 More importantly, how do we create a climate o n campus where this performative cannot be done, where this set of conventions is not available? Hate speech and conduct codes are a start. But beyond codes of conduct and silent protest, I can imagine a world in which simply out of universal respect for o ther beings no one can read that intention. The utterance as hate speech act is not available or intelligible as such, just as insulting the Queen is not available to the commoner. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!$&%!http://www.cddc.vt.edu/sionline/presitu/usersguide.html !$&&!IÕm reminded of my own college experience when a cutout of paper dolls was slapped to my door in the middle of the night, clearly meant for me to recognize that I had been identified as lesbian. In response, my friends, living on the same floor, all posted cutouts of paper dolls corresponding to the number of women living in the dorm room, to all of their own doors. I left mine up. !$'*!!Name-calling Perhaps the clearest case of hate speech where the intention of the speaker is easily readable (in no small part because the context is so familiar) is the case of name -calling. 134 Take any number of examples, but for the time being, imagine two women (or two men) holding hands and a passerby utters ÒFucking dykesÓ in such a way and with a direction such that the intention is clear. This is an instance of hate speech. An Austinian -Gricean analysis goes as follows: The speaker performs a (hate) speech act given that the total speech situation is one oriented toward the cultural conventions for subordinating. The speaker intends the force of the utterance to be a kind of ranking that puts the audience Òin her place.Ó Given that the speaker is not an actor on a stage, or a lecturer in front of a classroom, the intention is clear Ð the speech act is one of name -calling and the intention is to injure. The social position and relative authority of the speaker to the audience is always part of an Austinian analysis of the total speech situation. In this example thereÕs an antag onistic relationship between the speaker and the audience that lends itself to injury; specifically, the possibility of threatening the safety of the audience in the very uttering of the name. Locutionary Act: The structure of the utterance is meaningful in a language Ð it fits the conventions in the English language for name -calling and, thus, is intelligible and understood as name -calling. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!$&'!It is no coincidence that one of AustinÕs paradigmatic examples of performative speech is christening . !$'+!!Illocutionary Act: In this context, in uttering, ÒFucking dykesÓ the speaker names the intended recipient as inferior, a type of ranking occurs in which the audience is put Òin her place.Ó I would even argue that a threat occurs in the very uttering of the call. Perlocutionary Act: We can imagine a range of consequences that this utterance brings about in the audience and others in the vicinity. The audience may experience insult or injury, may attempt to leave the vicinity quickly, may feel fear, may feel hated, or may feel pity for the speaker and his obvious lack of self -esteem. A partic ularly interesting feature of hate speech, as mentioned before, is the role of the peripheral audience. Beyond the intended recipient, there is typically a kind of Òshowing offÓ for a group of peers that happens in hate speech. A common intended perlocutio nary effect is to get the peripheral audience (likely the speakerÕs peers) to feel aligned with the speaker along social and political ties. Name -calling as hate speech can be a typical form of soliciting solidarity. And therein lies an avenue of recourse ; namely, the intention of the speaker to show/elicit solidarity with his peers is one area in which the audience can thwart his intention by responding in unexpected ways. First and foremost, as most anti -bullying campaigns propose, the peripheral audienc e can respond by not providing the expected show of solidarity with the speaker. Likewise, the audience can respond by calling out the speakerÕs performance for his peers, ÒYou must feel so self -assured.Ó Or, by noting that the speaker has done nothing mor e than stated the obvious, ÒHow clever.Ó Such a response can be wonderfully disruptive. !$',!!The threat Imagine a speaker that wishes to threaten his audience. In the context of close quarters, in which a drink might be spilled, he says, ÒIf you spill your dr ink on me IÕll choke you.Ó Given the content of the locution in the context of the possibility of accidentally spilling a drink, the utterance is justifiably read as a threat. His intention is to threaten (illocutionary) and perhaps to intimidate (perlocu tionary) Ð among other intentions, such as, that you believe that he will hurt you, that you feel vulnerable, that you see that he is more powerful than you. In order for his intention to be realized, the response from his audience must arise at least in p art from the audienceÕs recognition of his intention to produce that particular response (the audience is threatened). There are a plethora of ways in which the speakerÕs intention can be frustrated and his goal unrealized. One such way is if the audience engages the speaker with the recognition of the speakerÕs intention but purposefully fails to provide the expected response. 135 In other words, the hearer remains as interlocutor but d oesnÕt Òplay alongÓ Ð uncooperative engagement . If the audience responds t o the speaker as if the speaker were making a joke rather than as if the speaker intended to seriously intimidate. Like the skilled hostess that can deftly shift the social gaffe to something !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!$&(!In my own life, in which this exact scenario occurred, I did not recognize the speakerÕs utterance as a threat at first. I responded, ÒyouÕre kidding, right?Ó without sarcasm Ð I g enuinely believed that the threat was actually a joke, even though I wasnÕt sure I got the joke. I note this here because there is a pleasant innocence to the way the speakerÕs intention is thwarted when that intention is read incorrectly by the audience. The misreading is accidental, which shows that the speaker really is outside the zone of intelligibility. I imagine a different social order than the one we currently inhabit in which , for example, someone commenting on your attire could never be read as a diss. Developing uncooperative engagement as a response is a way of imagining f arther down the lin e, when the unintelligible hate speaker will be the result of this work against bullying now Ð the intention to subordinate will not be available. Uncooperative engagement is purposely or, in fact, perversely misreading the speakerÕs mind. But first the audience must read the speakerÕs mind. !$(-!!more appropriate, the one threatened can shift the intention of the speaker from a threat to a joke by simply refusing to read the threat as a threat. ÒI donÕt get the joke,Ó the audience may say in response, to alert the speaker But did the speaker still intimidate even when the audience is not threatened but recogni zes the intention to intimidate? LetÕs say that I interrupt the speakerÕs intention to produce a particular response in me by perverting the expected conversational exchange but I still feel threatened by him. Do I have to say that he accomplished harm eve n though I didnÕt play along? On the one hand, the opportunity for the audience to engage uncooperatively requires recognition of the speakerÕs original intention. Only with that recognition can the audience perverse the speakerÕs intention. Thus, the spea ker does accomplish his intention to some end. A speakerÕs meaning(nn) requires that the audience believe that p Ð not merely that the audience recognize your intention to get you to believe that p. Allow me to note again here that the objective of this p roject has to do with the opportunity to mobilize and localize a prevailing threat (e.g. ÒyouÕre rapableÓ) and make that threat no longer available to the speaker. That takes all manner of reframing meaning and shifting social structure. Here (this project ) is one way to motivate that shift. The harm in hate speech is the illocutionary force of constructing reality. Hate speakers contribute to the maintaining of this structure. One possible way of perverting the capability of hate speech to subordinate is t o engage uncooperatively as an interlocutor. !$($!!Sexual harassment The office worker that shows pornography to his female co -worker is performing hate speech in the form of sexual harassment. Just as in the example of name -calling above, the co -worker is put Òin her place,Ó she is told that her body is available, that she is seen as nothing more than an object of sexual pleasure. I would, once again, argue that the speech act is a threat. Among the myriad of perlocutionary effects, the audience understands t he speakerÕs intention to come to the belief that she is all those things and nothing more, and to have that response in part in virtue of her recognition of the speakerÕs intention to produce that particular response. This is a tough case. The conventio ns that support and maintain hate speech in the form of sexual harassment are persistent and ubiquitous; so much so that even legislation against sexual harassment has only gone so far. The pervasiveness of pornography as a means of sexual expression also contributes to the problem. But the speech act is still bound by convention, as all acts are, and so it is subject to infelicity. The intention of the speaker to bring about the response in his audience that she believes she is a sex object can be thwarted by refusing to provide the speaker with recognition that response. This example is perhaps the right scenario for showing the speaker that their performance is no longer the cool thing to do Ð there is no love for that kind of performance. I can imagine t he audience responding in such a way that it is very clear that the speaker has done something uncool, perhaps with just a telling look. One response: ÒAre you kidding?Ó The audience can take you up on that kind offer and !$(%!!then the threat/the harm/the insul t is diffused. Rejecting an associated meaning with a bit of humor is one form of uncooperative engagement. A return, briefly, to ÒDonÕt Ask, DonÕt TellÓ As mentioned in a previous chapter, I agree with Butler that the militaryÕs ÒDonÕt Ask, DonÕt TellÓ p olicy is a prohibitive policy that is plainly wrong on many counts even though it is not the same kind of policy proposed by MacKinnon, but here IÕd like to focus on what is wrong with the militaryÕs presumption underlying the policy. The underlying presum ption driving the implementation of ÒDonÕt Ask, DonÕt TellÓ is a construal of speech as conduct. The militaryÕs policy explicitly considers the utterance that one is gay to be tantamount to homosexual conduct: ÒA member of the armed forces shall be separat ed from the armed forces under regulations prescribed by the Secretary of Defense if the member has stated that he or she is a homosexual or bisexual or words to that effectÓ (10 USC, ¤ 654, b2). Within the text of the policy, stating that one is gay is n o different (and results in no less severe consequences) than engaging in homosexual conduct and intending to marry another of the same sex. But what does this mean precisely? The utterance ÒIÕm gayÓ is taken to be as good as an invitation to sex. ItÕs no harm to note that, in certain imaginable contexts, the utterance that one is gay is, in fact, an invitation (one can imagine the context Ð uttered in a particular time and space Ð in which stating ÒIÕm gayÓ can be Òtesting the watersÓ to see if the othe r is interested). But this is to say nothing more than is already noted by AustinÕs analysis of !$(&!!speech acts. The same utterance can have as many varying forces as there are imaginable contexts. (For a simple example, the utterance Òyes.Ó) The military fail s to note that the more typical context in which explicitly stating that one is gay is when Òcoming out.Ó When I tell my parents, ÒIÕm gay,Ó itÕs not an invitation. Explicitly stating that one is gay (coming out) holds a complicated, but important, place i n our culture Ð not only because it is necessary in certain circumstances but also because it is expected by society at large of gays and lesbians in many contexts. The utterance ÒI want youÓ is related in an interesting way to the above case. ÒI want yo uÓ (in Austinian terms) is a constative statement in its structure. ItÕs a description of an internal feeling. And, yet, it is almost never taken as a mere description. It functions regularly in our culture as a pick -up line (whether effectively or not is another matter). The uptake that it gets is as a solicitation; an invitation to sex (or, in other regular contexts, as a threat of sexual harassment). Similarly, we almost never say ÒI invite you to have sex with meÓ (the explicit performative). That sort of pick -up line would be considered socially awkward and not attentive to social norms and cues of Òpicking up.Ó HereÕs the fun part: If one were to respond to the utterance ÒI want youÓ as if it were a mere description then a type of interruptive counterspeech is done. Suppose you say in response, ÒYou want me? What a nice feeling that must be for you.Ó YouÕre not playing along . YouÕre being uncooperative (in the Gricean sense) by not providing the expected uptake (in the Austinian sense). !$('!!The off-handed remark This project began with a deep concern over the unintentional acts performed in the utterance, ÒThatÕs so gay.Ó This expression seems to persist as a way of indicating oneÕs disgust or general disapproval of the referent, in spite of the PSA telling us to Òbe more clever.Ó 136 I find this case particularly fascinating and important in that the intention of the speaker does not (in all instances) match up with the illocutionary act performed. I believe this is a case where the speaker perf orms an instance of hate speech even when she does not intend to do so. In that way, the injury is lessened, but it is an injury worth redressing all the same. The scenario to which I refer is one where the speaker only intends to describe the world Ð she imagines her speech as constative rather than performative Ð but the performance of something is done nonetheless. On AustinÕs chart of infelicities we find that her act misfires Ð she intends to report on her feelings about the subject but in so doing per forms an instance of hate speech. 137 Uncooperative engagement as a mode of resistance can work in the case of the unintentional hate speech act as well. The audience can ÒreadÓ the speaker as performing a hate speech act even while intending to merely desc ribe the world. And then, with some grace, respond in turn with something like, ÒYou mean ÔgayÕ as in ÔhappyÕ?Ó 138 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!$&)!http://www.thinkb4youspeak.com/psa.asp !$&*!Since the intent ion to perform hate speech is integral to the actual performance of hate speech, we may give the unintentional hate speech act a new name. $&+!Another lovely example from Marilyn Frye: In response to the off -handed ÒThatÕs so gay,Ó one may respond, ÒHmmmÉ d oesnÕt seem so merry to me.Ó !$((!!There will always be such a thing as Òbad words.Ó Even if these words (cunt, nigger, dyke, faggot) are reclaimed and resignified , there will be others. This is, of course, because it isnÕt the word that is the problem Ð it is the way the word is employed and what it is employed to do that is politically and socially significant. As a community we can come together in response to hate speech an d teach uncooperative engagement Ð an active response that leads to a world in which the conventions that support hate speech are no longer intelligible. I believe that the coming together as a community in response to hate speech can easily be imagined as classroom workshops in which we teach uncooperative engagement, much like the consciousness raising workshops popularized in the late 60s and 70s, which led to the PSAÕs and diversity training workshops of today. Uncooperative engagement as a tool used to undermine (and perhaps abolish) hate speech can even be included in current anti -bullying workshops and campaigns. Students can imagine their own responses that thwart the intention of the hate speaker Ð from the snarky to the generous Ð and be coached on how to utilize that precious moment when the intention of the speaker is recognized by the audience and purposefully rejected. I believe with such training we have the opportunity to move toward a cultural climate in which hate speech is no longer Òreadab leÓ as hate speech Ð one simply cannot ÒdissÓ in a way that reinstantiates subordination and puts one Òin her placeÓ as inferior in social and political status. The problem of hate speech is clear Ð the speech act has the force of subordinating. I believe that uncooperative engagement is part of the solution. !$()!! BIBLIOGRAPHY !$(*!!BIBLIOGRAPHY Austin, J.L. 1962. How to do things with words. Oxford: Oxford University Press. Avramides, Anita. 1997. Intention and Convention. In A companion to the philosophy of language, eds. Bob Hale and Crispin Wright. Malden, Mass.: Blackwell Publishers Inc. Brison, Susan. 2002. Aftermath: Violence and the remaking of a self. Princeton: Princeton University Press. Brison, Susan. 1998. The Autonomy Defense o f Free Speech. Ethics 108:2. 312-339. Brison, Susan. 1998. Speech, Harm, and the Mind -Body Problem in First Amendment Jurisprudence. Legal Theory 4. 39-61 Butler, Judith. 1997. Excitable speech: A politics of the performative. New York: Routledge. With f ocus on pages 1 -103 and 127 -165. Butler, Judith. 1998. Ruled Out: Vocabularies of the Censor. In Censorship and silencing: Practices of cultural regulation , ed. Robert Post. Los Angeles, CA: Getty Research Institute. Davidson, Donald. 1978. What Metaphors Mean. Critical Inquiry 5:1. 31-47. Delgado, Richard, Charles R. Lawrence III, Mari J. Matsuda, and Kimberl” Williams Crenshaw, eds. 1993. Words that wound: Critical race theory, assaultive speech, and the First Amendm ent. Boulder: Westview Press. With focus on chapters 2, 3, and 5. Derrida, Jacques. 1988. Signature Event Context. In Limited inc. Evanston, Il: Northwestern University Press. 1 -23. Douglas, Lawrence. 1998. Policing the Past: Holocaust Denial and the Law . In Censorship and silencing: Practices of cultural regulation , ed. Robert Post. Los Angeles, CA: Getty Research Institute. Ensler, Eve. 2001. The vagina monologues . London: Virago Press. Frege, Gottlob. 1997. On Sinn and Bedeutung . In The Frege reader , ed. Michael Beaney. Trans by Max Black. Malden, Mass.: Blackwell Publishers. 151 -171. !$(+!!Gavison, Ruth. 1998. Incitement and the Limits of Law. In Censorship and silencing: Practices of cultural regulation , ed. Robert Post. Los Angeles, CA: Getty Research Institute. Green, Leslie. 1998. Pornographizing, Subordinating, and Silencing. In Censorship and silencing: Practices of cultural regulation , ed. Robert Post. Los Angeles, CA: Getty Research Institute. Grice, H.P. 1989. Studies in the way of words. Cambr idge, Mass.: Harvard University Press. With focus on chapters 2, 3, 6, 7, and 14. Kennedy, Randall. Nigger: The strange career of a troublesome word . Cambridge, Mass.: Harvard University Press. Lacour, Claudia Brodsky. 1992. Doing Things with Words: ÒRa cismÓ as Speech Act and the Undoing of Justice. In Race -ing justice, En -gendering power: Essays on Anita Hill, Clarence Thomas, and the construction of social reality , ed. Toni Morrison. New York: Pantheon Books. 127 -158. Langton, Rae. 1993. Speech Acts and Unspeakable Acts. Philosophy and Public Affairs 22:4. 305-330. Langton, Rae. 1998. Subordination, Silence, and PornographyÕs Authority. In Censorship and silencing: Practices of cultural regulation , ed. Robert Post. Los Angeles, CA: Getty Research Institute. Levinson, Sanford. 1998. The Tutelary State: ÒCensorship,Ó ÒSilencing,Ó and the ÒPractices of Cultural Regulation.Ó In Censorship and silencing: Practices of cultural regulation , ed. Robert Post. Los Angeles, CA: Ge tty Research Institute. MacKinnon, Catharine A. 1993. Only words. Cambridge, Mass.: Harvard University Press. MacKinnon, Catharine A. 1994. Pornography, Civil Rights, and Speech. Francis Biddle Memorial Lecture, given at Harvard Law School April 5 th, 1984. Moran, Richard. 1997. Metaphor. In A companion to the philosophy of language, eds. Bob Hale and Crispin Wright. Malden, Mass.: Blackwell Publishers Inc. Schauer, Frederick. 1998. The Ontology of Censorship. In Censorship and silencing: Practices of cultural regulation , ed. Robert Post. Los Angeles, CA: Getty Research Institute. !$(,!!Schwartzman, Lisa. ÒHate Speech, Illocution, and Social Context: A Critique of Judith Butler.Ó Journal of Social Philosophy, 33:3. Fall 2002, 421 -441. Skorupski, John. 1997. Meaning, Use, Verification. In A companion to the philosophy of language, eds. Bob Hale and Crispin Wright. Malden, Mass.: Blackwell Publishers Inc. Stark, Cynthia A. 1997. Is pornography an action?: The causal vs. the conceptual view of pornography. Social Theory and Practice Summer 23:2. Strawson, P.F. 1964. Intention and Convention in Speech Acts. Philosophical Review 73: 439-60. Webster, Fiona. 2000. The Politics of Sex and Gender: Benhabib and Butler Debate Subjectivity. Hypatia 15:1. 1-22. Wigg ins, David. 1997. Meaning and Truth Conditions: From FregeÕs Grand Design to DavidsonÕs. In A companion to the philosophy of language, eds. Bob Hale and Crispin Wright. Malden, Mass.: Blackwell Publishers Inc. Wittgenstein, Ludwig. 1958. Philosophical Investigations. Trans by G.E.M. Anscombe. Englewood Cliffs, NJ: Prentice -Hall. With focus on: Part I: pages 1 -36 (the initial language game), 65 -88 (family resemblance), 150 -186 (no Òcommon characteristicÓ), 187 -209 (rule following considerations), 316 -403, 656-693; Part II: pages 193 -229 (seeing/seeing as)