Does Public Racist Speech Constitute Hostile Discrimination? Comments on McGowan

ABSTRACT

In ‘Just Words: On Speech and Hidden Harm: An Overview and an Application’, Mary Kate McGowan argues that some racist speech in public places should be made unlawful in the United States for the same reason that sexist behaviour in the workplace is already legally actionable—namely, to protect individuals from a hostile discriminatory environment. While McGowan may be correct that some public racist speech may constitute an act of discrimination in some morally significant sense, I present several reasons for doubting that such speech constitutes a hostile discriminatory environment in the relevant legal sense.

KEYWORDS:

• free speech
• racist hate speech
• discrimination law

Disclosure Statement

No potential conflict of interest was reported by the author.

Notes

1 Although there are still plenty of instances where conversational contributions do not count as correct play. For instance, the speaker might lack the right sort of standing to perform a certain move (as when an employee says (unsuccessfully) to her boss, ‘you’re fired’), and attempted conversational moves may be successfully challenged (e.g. ‘whadya mean, “even Jane”’) so do not succeed in altering conversational score or enacting permissibility facts for the conversation. These types of cases will be important later.

2 McGowan’s account stipulates actual (as opposed to likely or reasonably foreseeable) adherence.

3 Thanks to Sam Shpall for suggesting this kind of example.

4 This case most closely resembles Neldaughter v. Dickeyville Athletic Club, one of three real life cases of hostile environment rulings that McGowan discusses.