The Authority of Hate Speech Rae Langton
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The Authority of Hate Speech Rae Langton (Draft: final version to appear in Oxford Studies in Philosophy of Law, Vol. 3) 1. Hate speech as doing things with words When we speak, we ‘do things with words’, and often we do things with words to people: advise them, marry them, warn them, and more, as J. L. Austin observed. Our topic here is hate speech, a category absent from Austin’s otherwise generous catalogues.1 But his insight that saying is doing applies to hate speech, as much as to anything else. When hate speech is minimized, or psychologized, shrunk down to expression of unpopular ideas, or injury of sensitive feelings, it is worth recalling that ‘the harm in hate speech’ involves its force as a speech act: it is in large part ‘performative’, as Jeremy Waldron, among others, has recently agreed.2 What is done with words can depend on patterns of authority. An Alabama slave law said, in 1861, that slaves are people and things: as ‘rational human beings, they are capable of committing crimes; and in reference to acts which are crimes, are regarded as persons’, but ‘because they are slaves, they are incapable of performing civil acts, and, in reference to all such, they are things, not persons’.3 The law turned people into property that could be bought and sold, like things, and sent to jail, like rational human beings. The harm in slave law depended, in part, on its authority. This illustrates Catharine MacKinnon’s observation that— Together with all its material supports, authoritatively saying someone is inferior is largely how structures of status and differential treatment are demarcated and actualized. 1 Austin 1962. I am grateful to the organisers and participants of the Analytic Legal Philosophy Conference 2014 in Oxford, where I had the privilege of being ‘Special Guest’, and where a draft of this essay had its first airing, benefiting enormously from the lively and forceful discussion. I am also grateful to audiences in Graz in 2016, and Paris 2017 at the ‘Republique des Savoirs’, École Normale Supérieure. The essay’s companion piece is ‘Blocking as Counter-speech’ (2017), versions of both to appear in my published John Locke Lectures (Langton 2018). 2 Waldron 2012, 166, agreeing explicitly with MacKinnon 1993, and implicitly perhaps with other work including Altman 1993, Anderson et al 2010, Butler 1997, Delgado et al 1995, Maitra 2012, McGowan 2009, Matsuda et al 1993, Langton 1993, Schwartzman 2002, Tirrell 2012. To consider a performative aspect to hate speech is not to be guilty of ‘febrile theorizing’, as some have suggested (Heinze 2016, 75, 167), nor to deify the hate speaker, as Butler suggests (1997), see Langton 2009. 3 Caterall 1926, 247; discussed also in Anderson et al 2012. Not all speech acts, or ‘illocutionary acts’ are performative, but I do not do justice to those distinctions here. 1 Words and images are how people are placed in hierarchies, how social stratification is made to seem inevitable and right, how feelings of inferiority and superiority are engendered, and how indifference to violence against those on the bottom is rationalized and normalized.4 Certain authoritative sayings can subordinate social groups, placing people in hierarchies, depriving them of powers and rights, and legitimating certain treatment of them. Such harms are achieved, in part, through the authority of the saying. 5 If a law could subordinate by ‘authoritatively saying someone is inferior’, could hate speech ever do likewise? Hate speech often says that ‘someone is inferior’, whether authoritatively or not. One form of hate speech is assaultive, its addressee being the target of hatred. These are ‘words that wound’, as Richard Delgado puts it. They convey, according to Mari Matsuda, a ‘message of inferiority’, ‘directed against a historically oppressed group’, that is ‘persecutory, hateful and degrading’.6 Another form of hate speech is propaganda, its addressee being the recruit to hatred. Such propaganda attempts to ‘justify or promote racial hatred and discrimination’, as the 1965 UN Convention puts it, based on ‘ideas or theories of superiority of one race or group of persons of one colour or ethnic origin’; to incite ‘racial discrimination’, or ‘acts of violence… against any race or group of persons of another colour or ethnic origin’.7 (An utterance of hate speech might have both roles, addressing targets and recruits.) It is worth observing that the Alabama slave law meets both those descriptions of hate speech, though it would not be normally be described as assaultive or propagandizing. Yet the slave law matches Matsuda’s description: it conveyed a message of inferiority, directed against a historically oppressed group, that was persecutory, hateful and degrading; and it would be an understatement to say these were ‘words that wound’. It matches the UN description: the slave law was based on an 4 MacKinnon 1993, 31. 5 This understanding of subordination is proposed in Langton 1993, 2007. Given our focus on bad authority structures, we shall not here be unpacking authority in terms of ‘reasons’. 6 Delgado 1993, Matsuda 1993, 36. 7 UN 1965. ‘Incitement’ deserves more attention than I give it here, but I would interpret it as a kind of directive, rather than the (perlocutionary) production of certain effects. 2 ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, and attempted to justify and promote racial discrimination. Our question here is not whether a law could be hate speech, however. It is whether hate speech could be like a law: whether hate speech could have authority, and if so, of what kind, and from what source. Hate speech can have authority, I shall argue. I begin with a sketch (Section 2), and then fill in the detail. We shall need to pull authority down from its ivory tower, to confront non-ideal circumstances (Section 3), and bring out the relativity of authority to a subject domain, to a jurisdiction, and to rival authorities (Section 4). To treat authority in a non-ideal and relative way is not to oust the topic of ‘legitimate’ authority, only its exclusive demand on our attention. If authority is ‘a feature of roles embedded in practices’, as Scott Hershowitz has said, then whether some authority is justified will depend on whether the practice is justified.8 We may need to bear in mind the less ideal and the more, to capture the harm in hate speech, and see how actual authority patterns fail by the light of something better. Hate speech can have epistemic and practical authority: its words can be verdicts that tell someone how things are, and directives that tell someone what to do (Section 5). ‘Epistemic authority’ is authority for belief, including ‘theoretical authority’ or expertise; and also credibility.9 Its characteristic speech act is a ‘verdictive’, a judgement that something is so. ‘Practical authority’ is authority for action, and its characteristic speech act is an ‘exercitive’: a directive, or an enactment of status—‘a decision that something is to be so, as distinct from a judgement that it is so,’ as Austin put it.10 The law is a paradigm practical authority, and commands are its paradigm speech acts. Yet the slave law was doing several things with words. It was indeed an exercise of practical authority, a 8 Hershovitz 2011, 11, 18. This applies mutatis mutandis to authority not based on roles. 9 Besides expertise and credibility, I take epistemic authority to include certain knowledge-related skills, intellectual, perceptual and imaginative. Since epistemic authority include factors other than mastery of theory, I find ‘theoretical’ a misnomer (cf. Raz 1979, 2009, Green 1989, Enoch 2012). 10 Austin 154, but exercitives need not be decisions in my view. For important work on exercitives and their ubiquity, see MacGowan 2003, 2004, though she is interested in permissibility shifts that do not require speaker authority. 3 decision that ‘something was to be so’, creating legal fact: that slaves counted as ‘things’, that they were required to be so treated. It was also an exercise of epistemic authority, a judgement that ‘something was so’, reporting an independent fact, that slaves were ‘rational human beings’. Practical and epistemic authority are distinguished by Joseph Raz, who calls the latter ‘theoretical authority’, and offers a methodological desideratum: An analysis maximizing the similarities between authority for action and authority for belief is, other things being equal, preferable.11 We shall, at least, fulfill this desideratum. Epistemic authority can be practical, as we shall see, and hate speech can direct action with its authority for belief.12 Moreover, epistemic and practical authority can have a common source. There are many sources of authority, formal and informal, but I want to focus on authority gained, informally, by default. Authority can be obtained by accommodation, a default adjustment that occurs, without fuss, when hearers take on board what speakers presuppose (Section 6). Presupposition accommodation is a familiar phenomenon. Someone says ‘Even George could win’, presupposing that George is an unpromising candidate. No-one interrupts with a ‘Whaddya mean, even?’ and the presupposition is taken on board. David Lewis used this example to suggest that conversation, unlike baseball, tends to evolve in a way that makes what is done count as ‘correct play’. Acting as if it is your turn in baseball will not make it correct play, if you have just hit three strikes. But acting as if something is correct play in a conversation tends to make it correct play, if nobody stops you. Hearers routinely accommodate what speakers presuppose, and the hearer’s omission is a quiet engine of the speaker’s success.13 11 Raz p.