UNCOOPERATIVE ENGAGEMENT: AN ACTIVE RESPONSE TO HATE SPEECH By Meredith Verrochi A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of Philosophy – Doctor of Philosophy 2015 ABSTRACT UNCOOPERATIVE ENGAGEMENT: AN ACTIVE RESPONSE TO HATE SPEECH By Meredith Verrochi In the following I take up and elaborate on the claim that we do things with words. That is, as speakers in a culture bound by convention and ritual, words are not merely an expressive tool but a form of action. More importantly still, words can – and often do – wound in the very uttering of them. As to the question of how words wound, J.L. Austin provides us with the working theory – speech act theory. Like the illocutionary force of warning or marrying or christening, there is an illocutionary force of subordinating. Drawing together Austin's speech act theory with the theory of meaning and conversation provided by H.P. Grice, we have a formula for actively addressing the peculiar harm that is done in hate speech. If harm is well enough established then prima facie something ought to be done about that harm. What remains is the question: what does intervention look like? To that end, the main objective of this project is to show that there are avenues for interrupting the illocutionary force of subordination beyond either enlisting the coercive power of the state or leaving recourse to the “open marketplace of ideas.” Somewhere between the Dworkin-MacKinnon anti-pornography ordinance and Judith Butler’s “resignification” is an alternate path. In the following I develop a concept that I call "uncooperative engagement" as a means of redress that is both tenable and ethical. Copyright by MEREDITH VERROCHI 2015 ACKNOWLEDGEMENTS I humbly thank all my colleagues in the Philosophy department at MSU. It has been a long road and a process that can often feel isolating and desolate. If not for my committee – Dr. Matt McKeon, Dr. Lisa Schwartzman, and Dr. Jamie Nelson – and their unending support and encouragement, I would surely not be here. I wish to thank my adored brother John and sister Lauren, brother-in-law David, and niece Marin. My dear friends Adam Histed, Adam Friedman, Amanda, Kevin, Hudson, and Emelyn Lick. My dearest LP, Renner, who has treaded water with me and kept me afloat for a long, long time now. My parents, Rock and Debbie Verrochi. Thank you all for traveling down this bumpy road with me for the last several years so willingly, for being my buoy in a serious time of need. And to Nichole Riley, for showing up. To Marilyn: It has been a great honor to be your student, your interlocutor, and your advisee – in short, to be some part of your big story. It goes without saying that you have become an immeasurably important part of mine. My world has come to fit your word, and for that I am better. My sincere and humble and everlasting thanks. iv TABLE OF CONTENTS INTRODUCTION….……………………………………………………………………….…………. 1 Chapter 1: Speech Act Theory and Words That Wound ……….…………………………………..… 9 Section I: Speech Act Theory……………………………………………………………….... 10 The perlocutionary effects of hate speech…………………………………………. 14 Section II: Enlisting state power to regulate racist speech………………………………... 23 Charles Lawrence and the call to extend fighting words………………………... 23 Richard Delgado and the call for a tort remedy……………………………........... 27 Mari Matsuda and the criminalization of racist speech.…………………………. 31 Section III: What’s wrong with enlisting state power?......................................................... 37 Chapter 2: Censorship, Silencing, and the Construction of Social Reality: The Dworkin- MacKinnon Anti-Pornography Ordinance and the Illocutionary Force of Subordinating…...... 42 Section I: The way pornography harms: the intersection of subordination and silencing………………………………………………………………………………………... 45 Speech acts and subordination…………………………………………………….... 45 Speech acts and silencing………………………………………………………......... 46 Silencing and the construction of social reality……………………………………. 50 Section II: Pornography as hate speech and hate speech as actionable under the law.... 57 The Dworkin-MacKinnon anti-pornography ordinance…………………………. 59 Concluding remarks………………………………………………………………….. 69 Chapter 3: Excitable Speech, Sovereign Authority, and the Possibility of Felicity .………...…... 76 A quick example to get things started………………………………………………………. 79 Section I: Censorship, Silencing, and the Dworkin-MacKinnon anti-pornography ordinance………………………………………………………………………………………. 81 Section II: Speech acts and sovereign authority……………………………………………. 91 A quick and dirty detour of note……………………………………………………. 93 Section III: The case of Anita Hill……………………………………………………………. 99 Concluding Remarks……………………………………………………………………….... 109 Chapter 4: Illocution, Intention, and the Role of the Hearer …….………………………………. 112 Section I: Speaker Meaning…………………………………………………………………. 113 The Cooperative Principle…………………………………………………….……. 118 Conversational Implicature………………………………………………………… 122 An everyday example………………………………………………………………. 125 Section II: The connection between felicity and nonnatural meaning………………….. 126 Section III: Hate speech……………………………………………………………………… 133 Torture………………………………………………………………………………... 134 Sexual Harassment………………………………………………………………….. 135 The joke………………………………………………………………………………. 136 Chapter 5: Uncooperative Engagement: An Active Response to Hate Speech ……….……….. 138 The Ujamaa Incident………………………………………………………………………… 145 v Name-calling……………………………………………………………………………...…. 147 The threat…………………………………………………………………………………….. 149 Sexual harassment……………………………………………………………………...…… 151 A return, briefly, to “Don’t Ask, Don’t Tell”……………………………………………... 152 The off-handed remark……………………………………………………………………... 154 BIBLIOGRAPHY …………….………………………………………………………………………. 156 vi INTRODUCTION In the following I take up and elaborate on the claim that we do things with words. That is, as speakers in a culture bound by convention and ritual, words are not merely an expressive tool but a form of action. More importantly still, words can – and often do – wound in the very uttering of them. As to the question of how words wound, J.L. Austin provides us with the working theory – speech act theory. Like the illocutionary force of warning or marrying or christening, there is an illocutionary force of subordinating. Drawing together Austin's speech act theory with the theory of meaning and conversation provided by H.P. Grice, we have a formula for actively addressing the peculiar harm that is done in hate speech. If harm is well enough established then prima facie something ought to be done about that harm. What remains is the question: what does intervention look like? To that end, the main objective of this project is to show that there are avenues for interrupting the illocutionary force of subordination beyond either enlisting the coercive power of the state or leaving recourse to the “open marketplace of ideas.” Somewhere between the Dworkin-MacKinnon anti-pornography ordinance and Judith Butler’s “resignification” is an alternate path. I begin with introducing Austin into the work of Mari Matsuda, Richard Delgado, and Charles Lawrence and their proposals for enlisting state power as an active response to racist speech. These theorists take it as prima facie true that we do things with words and that words can, and often do, “wound” in the very uttering of 1 them. Interests on both sides of this dialogue – to either regulate or protect hate speech – rely on this very conceptualization of speech; that is, we do not just describe or report on the world with speech, we act. More specifically, our utterances have illocutionary force, and sometimes that force is quite harmful in significant ways. As a collective, the authors of Words That Wound propose extending one or more exceptions to the first amendment to include hate speech. Or, as Matsuda suggests, we could uphold our commitment to equality by criminalizing hate speech as international law has already done. In my first chapter I intend to show that none of the proposals offered up by the authors of Words That Wound are appropriately characterized as prior restraint. The use of the term ‘censorship’ as a rhetorical tool is misleading at best and uncharitable at worst. That being said, I ultimately reject the use of coercive state power as an ethically tenable and politically viable form of recourse while I support their arguments for why some form of recourse is warranted. In the first section of the chapter I provide an account of speech act theory, elucidated through the use of examples. The second section is dedicated to the authors of Words That Wound and their various proposals for enlisting state power as a viable, ethical form of recourse. And, lastly, in the final section of the chapter I address the problems I see with enlisting the authoritative power of the state to address the harm in hate speech, before turning to Butler’s critique in the following chapter. Throughout my project I attempt to bring some clarity to the discussion by identifying two overlapping issues that recur and are often conflated: There is a 2 conceptual problem and a political problem at hand. The conceptual problem is that legislative proposals attempt to restrict words or phrases or the utterances themselves and this mislocates the harm in hate speech. The political problem arises from our unparalleled commitment in this country to “free speech,” which makes tackling the first amendment an untenable strategy. (Not to mention that