Liberalism, Feminism and Republicanism on Freedom of Speech: the Cases of Pornography and Racist Hate Speech

Liberalism, Feminism and Republicanism on Freedom of Speech: The Cases of Pornography and Racist Hate Speech Coromoto Power Febres UCL Department of Political Science Submitted for the Degree of Doctor of Philosophy in Political Science December 2010 DECLARATION I, Coromoto Power Febres confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. Coromoto Power Febres 1 ABSTRACT The central issue tackled in this thesis is whether there is room for legitimate restrictions upon pornography and extreme right political organisations’ racist hate speech; whether such restrictions can be made without breaching generally accepted liberal rights and within a democratic context. Both these forms of speech, identified as ‘hard cases’ in the literature, are presented as problems that political theorists should be concerned with. This concern stems from the increase in these forms of speech but also due to their mainstreaming in society. In this thesis the republican conception of freedom as non-domination is explored as a more suitable account than the liberal one of freedom as non-interference, when dealing with these two forms of speech. In addition, the neo-Roman republican view is aligned with anti-pornography radical feminism. This alignment aids in releasing the feminist position from a liberal framework; thereby reducing the burden of proof relating to harms derived from pornography that this position has been subjected to. Liberalism’s view of freedom of speech as a pre-political right leaves very limited room for restrictions to be made upon speech. The republican view of freedom as non-domination, meanwhile, means that restrictions need not be viewed as a breach of the right of freedom of speech. In addition, liberals argue that the most these forms of speech can cause is offence. By taking republican ideas of equality and respect for the democratic citizen, and anti- pornography radical feminist accounts of performative speech acts and grievances to individuals as part of a group, it is shown that not only can these forms of speech do more than offend, they can, in fact, dominate, in instances of individuals feeling subordinate. The theoretical work is illustrated through looking at two real world cases, Spain, a liberal state, and Finland, a republican state. 2 TABLE OF CONTENTS Declaration 1 Abstract 2 Acknowledgements 7 Introduction 8 The Extreme Right and Racism 12 Pornography 16 Thesis Structure 22 Chapter One: Definitions 25 1.1 Defining the Extreme Right 27 1.2 Defining Pornography 32 Conventional Definitions of Pornography 33 Andrea Dworkin and Catharine MacKinnon’s Definition 35 of Pornography Distinctive Features of the Dworkin-Mackinnon Definition 42 Pornography as Hate Speech 44 1.3 Defining Racist Hate Speech 45 Conventional Definitions of Hate Speech 45 Critical Race Theory Definition of Racist Hate Speech 46 Distinctive Features of the Critical Race Theory 50 Definition of Racist Hate Speech 1.4 Similarities: Pornography and Racist Hate Speech 50 1.5 Differences: Pornography and Racist Hate Speech 53 1.6Defining Alignment 54 Causal Relationships 55 Elective Affinity 57 Alignment 60 1.7 Conclusion 62 Chapter Two: Liberalism and Freedom of Speech 64 2.1Neutrality Rationale 65 Harm Based Approaches 65 Implications for Pornography 68 Implications for Racist Hate Speech 73 Radical Feminist Critique 74 3 Rights Based Approaches 77 Implications for Pornography 80 Implications for Racist Hate Speech 83 Radical Feminist Critique 84 2.2Autonomy Rationale 88 Communitarian/Perfectionist Approach 88 Implications for Pornography 90 Implications for Racist Hate Speech 90 Radical Feminist Critique 92 2.3Conclusion 92 Chapter Three: Republicanism and Freedom of Speech 94 3.1 Republican Freedom 95 Freedom as Non-Domination 96 Freedom as Autonomy 100 Group Domination, Social Domination, 101 Structural Domination 3.2 Republican Freedom of Speech 103 Implications for Pornography 106 Implications for Racist Hate Speech 109 3.3Traditional Feminist Concerns with Republicanism 110 3.4 Challenging Feminist Critiques 113 Challenging Feminist Critiques through the 116 Work of Arendt 3.5 Conclusion 120 Chapter Four: The Anti-Pornography Radical Feminist Position 123 4.1Equality 125 4.2 Pornography 127 4.3Sex and Race 131 4.4Racist Hate Speech 133 4.5Pro-Sex Feminism 135 4.6Conclusion 138 Chapter Five: A Liberal and a Republican Constitution 140 4 5.1 A Republican Constitution 141 Underlying Normative Rationale 142 Aim of the Constitution 142 What the Constitution Does 145 Primary Focus of the Constitution 148 Constitutional Formation 149 Concept of Rights Held 150 Basic Rights Constitutionally Protected 151 Form of Government 152 Features of Government 153 Legal System Advocated 156 Other Distinguishing Features 157 Implications for Free Speech Legislation 158 5.2 A Liberal Constitution 159 Underlying Normative Rationale 160 Aim of the Constitution 160 What the Constitution Does 161 Primary Focus of the Constitution 161 Constitutional Formation 162 Concept of Rights Held 163 Basic Rights Constitutionally Protected 164 Form of Government 165 Features of Government 167 Legal System Advocated 168 Other Distinguishing Features 169 Implications for Free Speech Legislation 170 5.3 Conclusion 171 Table 5.1: Blueprint – Liberal and Republican 171 Constitutions Chapter Six: The Finnish and Spanish Constitutions 173 6.1 Finland’s Constitution 173 Aim of the Constitution 174 What the Constitution Does 174 Primary Focus of the Constitution 175 Constitutional Formation 176 Concept of Rights Held 176 Basic Rights Constitutionally Protected 178 Form of Government 180 Features of Government 181 Legal System Advocated 183 Other Distinguishing Features 184 Implications for Free Speech Legislation 185 6.2 Spain’s Constitution 186 Aim of the Constitution 188 5 What the Constitution Does 188 Primary Focus of the Constitution 189 Constitutional Formation 189 Concept of Rights Held 190 Basic Rights Constitutionally Protected 190 Form of Government 192 Features of Government 193 Legal System Advocated 194 Other Distinguishing Features 195 Implications for Free Speech Legislation 196 6.3 Conclusion 198 Table 6.1: The Spanish and Finnish Constitutions 198 Chapter Seven: Pornography and the Position of Women in Spain 200 and Finland 7.1 Spain 200 The Position of Women 200 How Women are Viewed 206 Impact of Pornography on Views of Women 209 Pornography 211 7.2 Finland 216 The Position of Women 216 How Women are Viewed 220 Impact of Pornography on Views of Women 222 Pornography 223 7.3 Conclusion 227 Chapter Eight: The Extreme Right in Spain and Finland 230 8.1 The Extreme Right in Spain 231 Extreme Right Speech 237 Racist Hate Speech and the Law 240 8.2 The Extreme Right in Finland 244 Extreme Right Speech 252 8.3 Conclusion 256 Conclusion 258 Appendix 1: Interview with Professor K Pekonen 264 Appendix 2: Finnish Ombudsman for Minorities – List of Hate 267 Speech Cases Bibliography 283 6 ACKNOWLEDGEMENTS I dedicate this thesis to mi sobrino, Jacques Power, and mi abuela, Julieta de Febres, for their unconditional love. I am extremely grateful to my primary supervisor, Professor Richard Bellamy, for his academic guidance and intellectual direction. I would also like to thank my secondary supervisor Professor Cécile Laborde. Numerous other colleagues from University College London have also made the completion of this thesis possible. I am particularly grateful to Dr Jennifer Hudson, in her capacity as Director of the PhD programme, for going above and beyond the call of duty and always being supportive; to Dr Robert Jubb for his thoughts on my work; and to Antti-Ville Suni, for kindly providing Finnish translations. For their willingness to provide me with information and feedback there are a number of people at the University of Helsinki whom I would like to thank. In particular I am grateful to Professor Kyösti Pekonen for his expert guidance on the Finnish extreme right; and to Dr Antu Sorainen, for her thoughts on the case of pornography. I would also like to thank the members of the Christina Institute for Women’s Studies, for their comments on my work. Without my friends the past four years would have been impossible, although I will only name a few I am thankful to them all. To Dr Ekaterini Mantouvalou, for introducing me to the British Library, teaching me about what it is to do a PhD and always being supportive. To Dr Sara Z. Kutchesfahani and Niheer Dasandi, for making those long days at the library that little bit easier and for their proof-reading and thoughts on my work. To Alan Framil, for being there when I needed him most. My family have always taught me the value of education, installing from an early age the message that knowledge is the only thing that no one can take away from you. They have always been encouraging, supportive and had absolute belief in my abilities. I would therefore like to thank my brother, Dr Guillermo Power Febres, his wife, Sheila Power, and my uncle Dr Vicente Febres. Most of all, though, I want to thank my parents, Professor Henry Power Meneses and Dr Beatriz Febres de Power. They have not only always supported whatever I have chosen to pursue they have also done as much as possible to facilitate it. My gratitude to them is immeasurable. Finally I would like to thank Catherine Maffioletti, about whom I will merely say “for all of the above”, as there are not enough words in the world to explain the reasons why I am grateful. 7 Introduction This introduction sets out the main issues behind this thesis and describes its rationale. I briefly argue why the extreme right and pornography are matters of growing concern and ought to be addressed by political theorists, leaving the definitions of pornography, racist hate speech and the extreme right to Chapter 1.

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