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ABSTRACT
This paper argues for a hidden way in which speech constitutes harm by enacting harmful norms. The paper then explores the potential legal consequences of uncovering such instances of harm constitution. In particular, the paper argues that some public racist speech constitutes harm and is thus harmful enough to warrant legal remedy. Such utterances are actionable, it is contended, because they enact discriminatory norms in public spaces.
Disclosure Statement
No potential conflict of interest was reported by the author.
Notes
1 This paper relies heavily on McGowan’s [Citation2019] Just Words: On Speech and Hidden Harm, especially chapter 7.
2 I also assume that the harmful norms are followed. See note 4.
3 Harm constitution relies on causal mechanisms. So does successful illocution. Some mistakenly take reliance on causal mechanisms as evidence that a relation is neither constitutive nor illocutionary. For a particularly clear example of this, see Sumner [Citation2013].
4 In order for an utterance to constitute harm then three conditions are required. The utterance enacts a norm; that norm is followed, and harm results from following that norm. I build the causally downstream harms into the definition in order to forestall objections and avoid irrelevant controversy. Some (e.g., Langton [Citation2009]) treat the enacting of harmful norms as sufficient for harm constitution. I thank Rae Langton and Rachel Fraser for helpful discussion on this point.
5 I work with a Lewisian inclusive conception of conversational score (see Lewis [Citation1983]). For a discussion of different conceptions of score and how score differs from common ground, see McGowan [Citation2019: ch. 2].
6 Elsewhere I call them conversational exercitives. ‘Exercitive’ is Austin’s term for speech acts that enact facts about what is permissible or appropriate in some realm. See McGowan [Citation2003, Citation2004, Citation2009, Citation2012].
7 The norms in question need not be explicit, formal, exception-less or even consciously recognized. I am also agnostic about their ontology.
8 Although all moves enact score changes, not everything that enacts a score change is a move. See McGowan [Citation2019: ch. 4 § 2.1].
9 Elsewhere I used a similar example to make a similar argument, see McGowan [Citation2012].
10 I am here focusing on the legal (as opposed to a moral or political) principle of free speech.
11 Speech might be valuable intrinsically (that is, in itself) or it might be valuable instrumentally (that is, as a means to something else of value). If the special protections extended to speech are justified in virtue of speech being a means to something else of value, then the justification in question is said to be consequentialist. Otherwise, it is said to be non-consequentialist.
12 Frederick Schauer [Citation1982: 36] identifies this sort of justification in the work of Hume, Kant, and Spinoza.
13 There are further distinctions worth considering, see Maitra and McGowan [Citation2007, Citation2009].
14 The regulations must be precise enough to pinpoint the class of speech actions to be regulated. The degree of precision required varies. Strict scrutiny requires ‘narrow tailoring’ whereas rational basis review requires only ‘rational relation’. In addition to such breadth concerns, regulations must also be non-vague and content/viewpoint neutral. For a discussion of these complexities, see Volokh [Citation1996b].
15 Since assault is not a category of speech, this argumentative strategy is not technically an instance of the parity strategy in the narrow way that I have defined it here.
16 Waldron [Citation2012: 42–4] argues that this is an oversimplification. Group libel is distinct from group defamation.
17 Instead, anti-discrimination legislation typically uses the term without defining it. Such legislation is typically explicit, however, regarding the prohibited grounds of discrimination (e.g., age, race, and gender). For an example of this, see Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms available at http://conventions.coe.int/Treaty/en/Treaties/html/005.htm.
18 There are controversies concerning how to define discrimination, how to understand what precisely is morally bad about it, and how to distinguish it from related notions like oppression. For a discussion of these, see Altman [Citation2011].
19 Altman [Citation2011] treats this as the core concept of discrimination in his Stanford Encyclopedia entry on it. Others who do so include: Sunstein [Citation1994] and Young [Citation1990].
20 As Altman [Citation2011] rightly stresses, a disadvantage is a relative harm with an implicit comparison class. To say that non-whites are discriminated against in the United States today, for example, is to say that they are disadvantaged relative to whites in the United States today.
21 There are several legal notions since there is variation across jurisdictions.
22 This is beginning to change. Some states treat (some instances of) obesity as a disability. How disabilities are defined varies between states. In California, for example, obesity qualifies as a disability only if it is the result of an underlying physiological condition (e.g., endocrine malfunction) (see Cassista v. Community Foods, Inc.) Rhode Island can count obesity as a disability without establishing an underlying physiological cause of that obesity (see Cook v. State of Rhode Island). I thank Ann Garry for a helpful discussion on this point.
23 Note that this utterance does not make it illegal to hire women and it does not make it immoral to hire women. The sort of permissibility involved regards the policies of the company. The permissibility facts enacted are neither legal nor moral.
24 I am here using ‘discriminatory’ in the legal sense. If, however, the term is understood more broadly, then the example shows that some such enactings are actionable.
25 For discussion of the structural aspects of racism, see Young [Citation1992]; Lichtenberg [Citation1992]; Garcia [Citation1996]; Haslanger [Citation2004]; Shelby [Citation2003].
26 There are, of course, many differences between the CEO’s utterance and the WW’s. This parity argument does not require that the cases are alike in every respect or even in every relevant respect. It requires only that the sufficient condition for the regulation of the CEO’s utterance be satisfied by the WW’s utterance, too.
27 Del. Code § 4504.
28 477 U.S. 59 (1986). Lower courts recognized it earlier (see Bundy v. Jackson. Bundy 641 F. 2d 934 (1981)).
29 Prior to that, even so called ‘quid pro quo’ sexual harassment went unrecognized as a form of gender discrimination. ‘Employers have argued, and courts have held, that firing a female employee for refusing to submit to sexual demands did not constitute a Title VII violation because the class discriminated against was defined by willingness to perform sexual favors, rather than by gender’ [Bartels Citation1987].
30 One might think that the mechanism of norm enactment matters because authoritative norm-enacting utterances are intentional in a way that these others are not and discrimination requires discriminatory intent. The legal notion of discriminatory intent is a technical legal one and it is not the same as this more ordinary notion (say, of an intention to perform an act one knows is discriminatory). (There is also the difference between illocutionary intent to enact a norm and the intent to discriminate.) For a discussion of this, see McGowan [Citation2019: ch. 7].
31 Similarly, Citron [Citation2014] argues that hostile environment anti-discrimination law ought to be extended to the internet.
32 These cases are extremely rare but I regard them as a step in the right direction. Ironically, others cite these cases as a reductio of hostile environment law in general (see Volokh [Citation1996b]).
33 Others disagree. Interestingly, they also under-describe the case, see Volokh [Citation1996b]. See also, Koontz [Citation2008] who favours the actionability of hostile speech only when directed at unwilling listeners (where unwilling appears to mean not at all open to potential persuasion).
34 Bond v. Michael’s Family Restaurant, Wisconsin Labor and Industry Review Commission, Case numbers 9150755, 9151204 (March 30, 1994).
35 Craig v. New Crystal Restaurant, Chicago Commission on Human Relations Case No 92-PA-40 (October 18, 1995).
36 Craig v. New Crystal Restaurant, Chicago Commission on Human Relations Case No 92-PA-40 (October 18, 1995) at p. 2.
37 Craig did overhear Matteson call him a faggot later that day (when he returned to the restaurant to discuss the incident with an employee who was not present at the time of the incident) while Matteson was describing the incident to others. Because Craig was not a customer at the time, because Matteson did not direct the comment at him, and because her use of the term ‘faggot’ was not intended to insult him, it was no part of the finding. Craig v. New Crystal Restaurant, Chicago Commission on Human Relations Case No 92-PA-40 (October 18, 1995). Clearly the Commission distinguishes between intended and unintended overhearers.
38 Craig v. New Crystal Restaurant, Chicago Commission on Human Relations Case No 92-PA-40 (October 18, 1995) at p. 2.
39 Craig v. New Crystal Restaurant, Chicago Commission on Human Relations Case No 92-PA-40 (October 18, 1995) at p. 14.
40 Workplace hostile environment typically requires a pattern of hostility and employers are liable only if they knew or should have known about the harassment and failed to take corrective action.
41 Neldaughter v. Dickeyville Athletic Club, Wisconsin Labor and Industry Review Commission, Case no. 9132522 (May 24, 1994). Available at http://lirc.wisconsin.gov/erdecsns/17.htm.
42 Philosophical speech act approaches include: Langton [Citation2012] and Maitra [Citation2012]. Matsuda’s [Citation1993] classic work also assumes that authority is required.
43 This strategy generalizes. Some instances of racist speech fall under other already recognized-as-regulable categories (e.g., intentional infliction of emotional distress, true threat, harassment, and defamation).
44 For a discussion of concerns about vicarious liability, see McGowan [Citation2019: ch 7 § 6].