Hateful Speech and Hostile Environments

ABSTRACT

This paper examines Mary Kate McGowan’s account of oppressive speech. McGowan argues that ordinary hateful speech can oppress by enacting discriminatory norms, and further, that this enactment sometimes renders the speech regulable under current United States law. In response, the paper raises two sets of questions. First, it asks about the contents of the norms enacted by a given hateful utterance, and specifically, about what determines those contents. Second, the paper also questions McGowan’s emphasis on the distinction between causing harm and enacting (or constituting) harm. It argues that, contra that emphasis, this distinction doesn’t matter for the regulability of speech in McGowan’s central cases.

KEYWORDS:

• oppressive speech
• conversation
• causing harm
• constituting harm
• hostile environment
• public accommodations

Disclosure Statement

No potential conflict of interest was reported by the author.

Notes

1 This is a paraphrase of McGowan’s example, not a direct quote. For this and the other examples I consider in this paper, I’ve left out some details of McGowan’s presentation that are extraneous to my argumentative purposes. The central utterances have not been modified, however.

2 McGowan [2022: 132] labels the sort of appropriateness at issue here ‘conversational appropriateness’.

3 This last point is tricky, partly because if the interlocutor were to use ‘the dog’—e.g., if they were to say, ‘I should go walk the dog’—that might be enough to raise Logan to salience, thereby rendering their utterance felicitous after all. So, it is not trivial to say precisely what it is that the interlocutor is unable to do. I’m going to set this worry aside here.

4 McGowan thinks that a token utterance can simultaneously be a contribution to several norm-governed activities. Thus, the utterance in Angry Patron is both a contribution to a particular conversation, and to a particular interaction in a public space. I’ll suppress this complication in what follows.

5 McGowan [2022: 142n23] is clear that the kind of appropriateness at issue here is neither legal nor moral appropriateness. I’ll label this kind ‘social appropriateness’, to distinguish it from the ‘conversational appropriateness’ discussed earlier (note 2). These are merely labels; nothing I say in this commentary hangs on whether these are genuinely different notions of appropriateness, or on the relationship between them.

6 McGowan [2019: 19] notes that appropriateness is a degreed notion: one utterance can make something more appropriate—or more inappropriate—than another, related utterance. That seems right, and may be useful for tracking the more fine-grained distinctions in this domain. But it still remains to be specified what degree-talk here really amounts to.

7 This is a slightly elaborated version of a case McGowan [2022: 131] offers.

8 What kind of appropriateness is at issue here? There are several candidates: epistemic appropriateness; conversational appropriateness, in the sense at issue in Neighbors (see note 2); or social appropriateness, in the sense at issue in Angry Patron (see note 5); and perhaps others as well.

9 In this 1979 case, the Court considered the following question: does race-conscious affirmative action for entry into a training program for steelworkers violate Title VII’s prohibition on race-based discrimination? The affirmative action policy at issue had been agreed upon in a collective bargaining agreement between Kaiser Aluminum Chemical Corporation and United Steelworkers of America. The Supreme Court held that the policy was consistent with the law.

10 United Steelworkers v. Weber [1979: 202–3].

11 This example is inspired by Elizabeth Anderson’s [2006: 287] discussion of gender-based harassment.

12 In fact, that hostile discrimination doctrine can recognize when patterns of actions are discriminatory is sometimes described as a virtue of the law; see, e.g., Balkin [1999]. That seems very plausible to me.

13 It might be objected that the comments in Women’s Work do not have enough sexual content to qualify under the definition quoted above. I’ll make two points in response. First, as Anderson [2006: 287–9] argues, courts have slowly been expanding their understanding of sexual harassment in various ways, including by counting some not overtly sexual gender-based harassment. Second, the example can easily be modified to include some comments that are more overtly sexual, such as comments about the sexual attractiveness, or lack thereof, of women firefighters.