Commentary on Mary Kate McGowan’s ‘Just Words: On Speech and Hidden Harm: An Overview and an Application’

ABSTRACT

This essay considers Mary Kate McGowan's contention that no account of hate speech is adequate if it does not explain how such speech constitutes harm to those targeted by it. ‘Constitutes’ is suppose dot mean something different than ‘causes.’ McGowan's suggestion that the speech enacts a norm offers an interesting dimension to our understanding of the harm of hate speech. But I argue that it is important to distinguish carefully between ‘norm-enactment’ and ‘norm-application’ in this model. Failure to attend to that distinction blunts the force of the normative account.

KEYWORDS:

• constitution of norms
• discrimination
• enactment of norms
• harm
• hate speech
• normativity
• social practice
• speech

Disclosure Statement

No potential conflict of interest was reported by the author.

Notes

1 See, e.g., Public Order Act 1986 (UK), section 18(1) and Human Rights Act 1993 (NZ), section 61(1). These provisions and those mentioned in notes 2 and 3 below are quoted in Waldron [2012: 236–7].

2 See, e.g., Germany’s Penal Code, section 130(1), quoted in Waldron [2012: 236].

3 Racial Discrimination Act 1975 (Australia), section 18C.

4 For a discussion of the limits on tort liability for speech on matters of public concern, see Snyder v. Phelps, 562 U.S. 443 (2011).

5 McGowan [2022: 143] cites Meritor Savings Bank v. Vinson 477 U.S. 59 (1986) for this proposition.

6 Before going any further, I should say—as I believe McGowan also wants to say—that ‘norm’ and ‘normative’ are being used here in a positive (Kelsenian) sense. To talk of the existence of a norm and of the normativity of some aspect of a situation, is not to endorse it. Someone who utterly opposes N1 can nevertheless detect its presence as a norm in the restaurant. McGowan [ibid.: 142n23] notes that the relevant norms are not credited in her account as moral norms. I mention this just because ‘normative’ is used so often in philosophy to refer to positions which the speaker endorses. McGowan [ibid.: 133n7] says she is ‘agnostic about the ontology’ of the norms she is discussing.

7 As quoted in Strum [1999: 15]. See Waldron [2012: 95].

8 Think of Robert Duvall in his first scene with Billy Bob Thornton in the 1999 movie The Apostle: https://www.youtube.com/watch?v=Jfddc8LwQL8 at 0:47.

9 Says McGowan [2022: 132]: ‘‘[C]onstitution’ is here being used in a special technical sense. It does not mean what it means in other philosophical contexts’.

10 McGowan [2022: 143] gives as an example the following provision in the 2015 Delaware State Code, Title 6, Chapter 45 (Equal Accommodations: Unlawful Business Practices) (b): ‘No person, being the owner, . . . proprietor, manager, . . . or employee of any place of public accommodation, shall directly or indirectly publish . . . notice . . . to the effect that . . . the patronage of persons of any particular race, age, marital status, creed, color, sex, disability, sexual orientation, gender identity or national origin is preferred or is particularly welcomed, desired or solicited.’ (6 DE Code § 4504 (2015).)