Free Speech

According to Strossen's book Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights , two principles lie at the heart of First Amendment jurisprudence in the United States. The first is that of content neutrality: neither the government nor the courts can restrict speech just because some individuals or groups disagree with its content or find this content hateful. Indeed, as Strossen quotes Oliver Wendell Holmes, "if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought we hate."^[6] Second, when the government can restrict speech, it must show that the speech in question presents "a clear and present danger" in that it will cause direct and imminent harm to a very important interest and that no other means short of suppressing speech will prevent this harm. Crying "Fire" in a crowded theater is the most notorious instance of the relevant type of harm, and in citing it Strossen insists on the difference between a clear and present danger and what Holmes insisted is merely a bad tendency. We cannot restrict speech just on the basis that it may lead some individuals to perform objectionable acts.

Strossen takes this principle to imply a strong argument against that aspect of antipornography feminism that contends that exposure to pornographic materials can lead some individuals to rape, molest, harass, or otherwise harm women. We cannot suppress pacifist or socialist ideas because they might lead some to resist the draft, Strossen explains. Nor, therefore, can we suppress pornographic ideas just because they might lead some to engage in acts of violence against women. As she quotes Justice Louis Brandeis, "Fear of injury alone cannot justify suppression of free speech and assembly. Men feared witches and burned women."^[7]

Brandeis's defense of free speech relies upon Millian ideas about the power of truth to emerge through free discussion. "The fitting remedy for evil counsels is good ones," he claims. And as he continues:

Those who won our independence by revolution were not cowards. . . . They did not exalt order at the cost of liberty. To courageous, self-reliant men, with

confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.^[8]

But antipornography feminists question just whose silence is enforced by an understanding of the First Amendment that defends pornography. To be sure, women and pornographers appear to possess equal rights to say and write what they want as long as the content does not fall into specifically defined categories of clear and present dangers. But what if the production and consumption of pornography contributes to an environment in which women cannot do what they intend to do even if they can say or write what they want? What if truth cannot emerge through discussion because the very structure of that discussion is skewed by the effects of pornography and, hence, is far from free? Suppose pornography impedes the fullness of "full discussion?"

These sorts of questions are suggested by the use that Jennifer Hornsby, in considering the harms of pornography, makes of J. L. Austin's distinction between illocutionary and locutionary aspects of speech.^[9] By the locutionary component of what he called a speech act, Austin referred to its propositional content: "that p." The illocutionary component, however, refers to what the speaker means to do with this propositional content: whether, for example, he or she is asserting that p, denying that p, begging that p, ordering that p, or hoping that p. The condition for the success of such illocutionary acts is what Hornsby calls reciprocity. That is, the force of an illocutionary act depends upon the hearer's recognition of the act as the one the speaker intended, and speaker and hearer can come to an adequate understanding of one another only by recognizing both locutionary and illocutionary components for what they are. Indeed, Hornsby writes, "we can say: x-ing is an illocutionary act if and only if . . . the speaker's attempt at x-ing results in an audience's taking the speaker to x."^[10] The problem with pornography, on this view, is that it can distort a woman's attempt to perform a certain speech act, obstruct its illocutionary component, or turn it into its opposite. Hornsby refers to the comments of two judges in rape trials in this regard. In a 1982 trial, Judge David Wild said that "Women who say no do not always mean no. It is not just a question of saying no."^[11] And Judge Dean insisted in 1990, "As the gentlemen on the jury will understand, when a

woman says 'No' she does not always mean it. Men can't turn their emotions on and off like a tap like some women can."^[12]

But even if we accept Austin's theory of speech acts, why should the connection to which Hornsby appeals hold? Why can a speaker perform a certain speech act only if she is taken to perform it? And, even if a speaker can perform it only if she is taken to perform it, does she have a right that her intention to perform it be understood as she intended it? Hornsby's account of reciprocity is marred by its reliance on a problematic equation between an understanding of the meaning of a speech act and an understanding of a speaker's intentions. To the extent that such an equation supposes that one's intentions are always exactly mirrored in one's actions or words and that they can therefore be correctly understood in only one way, the equation cannot survive a hermeneutic investigation of the conditions of understanding meaning. As we have seen, when we try to understand the meaning of a text, we do so from a specific perspective, one that takes certain attitudes and assumptions for granted, relies on a certain vocabulary of understanding, and is oriented by certain questions, interests, and concerns. The same holds for our understanding of speech acts and the intentions behind them. We can understand them only from a particular hermeneutic horizon, and this condition holds even when the speech and intentions are our own and even when the issue is what we meant to do by what we said. As both speakers and hearers, we understand the meaning of our own and others' intentions in terms of a particular horizon of interpretation, one both limited and made possible by our historical, experiential, cultural, and linguistic situation. Why, then, can a judge not understand a woman's speech act in a way that the woman does not?

Hornsby's point about reciprocity can be reconstructed in a different way from the way she articulates it, as a point about standards of interpretive adequacy written into the hermeneutic circle. A speaker and hearer may not initially understand the speaker's speech act in the same way. If the speaker is to encourage the hearer to accept his or her understanding of the speech act, then, he or she must be able to show the context in terms of which he or she thinks the speech act should be understood. Suppose, for example, I take myself to be asking for a certain favor and you take offense because you take me to be commanding you in some way. In this case, we fail to agree on the meaning of my illocutionary act and some repair work becomes necessary. To convince you of what I thought I was doing in saying what I said, I refer to a background context of action, speech, and practice in terms of which my particular

speech act could have had the sense I attributed to it. In this case, I might point out that raising my voice at the end of my utterance or qualifying it with "please" could plausibly have been taken in the way I understand it, given the linguistic and communicative traditions to which we both belong, and, moreover, that your understanding of my speech act violates that context in important ways. Hence, I try to accomplish the necessary repair work by stepping back from the original speech act, finding a context of speech and practice with which I assume my hearer to be familiar, and showing how my original utterance fits into this context. If I am not originally understood in the way I think I should have been understood, I can try to articulate my understanding more clearly by referring to a wider context of action and practice of which my speech act forms a part. I may not have a right to be understood as asking for a favor instead of commanding, but I can at least refer to a framework of language and action that might allow us to repair our efforts to communicate by showing that my understanding of my speech act was a sincere and legitimate one.

Reconstructed in these terms, Hornsby's suggestion is that pornography undermines or distorts the possible success of these efforts at both initial and background contextual levels. Pornographic materials, antipornography feminists insist, are not simply sexually explicit pictures or obscene descriptions that are intended to arouse, as Strossen and other liberal theorists assume. Rather, they claim that, at best, in their nonviolent, Playboy -like form, they depict women as objects for the use and sexual control of others.^[13] At worst, pornographic materials celebrate the rape, battery, and sexual harassment of women and depict women as enjoying such violence against them. Suppose, then, that a woman denies that she wants to have sexual intercourse with a man. The locutionary component of her speech act and its content are not at issue here. But she can engage in successful communication only if she can convince the man to understand her illocutionary act as one of denying that she wants to have sex or accomplish the necessary repair work if challenged. Yet if women are not always taken to be rejecting a sexual advance when they understand themselves to be rejecting it, they are not always understood the way they understand themselves when they try to refer to a context of action and practice that would give their particular speech acts the sense they think they have. Instead, speech acts such as rejecting a sexual advance, reiterating one's rejection, and giving the context for why one's rejection should be understood as a rejection are all some-

times understood as invitations to greater force or as attempts to raise the pitch of sexual excitement.

In these instances, the initial attempt at communication and all subsequent attempts at repair work fail from the speaker's point of view or turn into what she sees as their opposite but is powerless to correct. The antipornography feminist position implies that this situation is only to be expected in a society in which women are depicted as they are in pornography. For the context to which women must appeal in trying to show the merit of their own interpretations of their speech acts in one already influenced by the effects of pornography. The distribution and consumption of pornographic materials establish expectations about what women want, as well as contexts for what their dress and behavior mean, antipornography feminists insist. These expectations and contexts allow little chance that a woman can offer contexts to show that she is really rejecting a sexual advance when she wants to do so. Instead, an adequate understanding of her illocutionary aims is distorted and undermined by the social context in which it must proceed. Thus, Susan M. Easton appeals to Mill from the point of view opposite to Strossen's to argue that pornography "stifles the truth. Given the quantity of pornographic material and its wide circulation, the pornography industry may actually prevent the truth about women's nature and abilities."^[14]

But why, we might ask, should this social context justify restrictions on the free speech of pornographers? It may be that pornographic images and writing contribute (presumably, with other cultural products such as television, children's toys, and advertising) to an environment that prevents the "truth" about women (or suppresses an appreciation of their own self-understanding) and systematically distorts an understanding of what they take as their illocutionary aims. But is this obstruction an abridgment of their right to free speech or, in Brandeis's terms, an enforcement of silence? Surely, a right to speak freely is not the same as a right to be heard as one wants to be heard or as one hears oneself. Nor, if we eliminate a problematic equation of meaning with a speaker's intentions, is it the same as a right to the agreement of others on how one ought to be understood at either the initial or contextual levels.

From the antipornography point of view, this objection overlooks a crucial element of the way in which pornography undermines the ability of women to legitimate their own understanding of their speech acts, namely its defense by First Amendment jurisprudence. While different factors may contribute to distortions in communication, opponents of

pornography suggest that pornography accomplishes two extra feats. First, it undermines attempts at repair work as well as the initial attempt at understanding. Hence, it has a kind of global effect on understanding. Second, its global intrusions are protected by an understanding of the First Amendment that, despite Strossen's appeal to Brandeis, is not neutral. Indeed, MacKinnon and others such as Cass Sunstein reject the entire notion of content-neutrality on which Strossen's defense of free speech rests. Rather, as Sunstein argues, the questions on which this notion relies—those asking whether an important interest has been suppressed or whether the speech at issue represents a clear and present danger—reflect partisan values that only appear to be neutral in some cases because the consensus that justifies them seems to be so firm.^[15] With regard to commercial speech, advertisements for cigarettes and casinos may be banned from television, although advertisements that warn about the dangers of smoking or gambling may not. Employers are banned from warning employees about what they see as the effects of unionization in the period before a union election if their statement might be interpreted as a threat. Union activists, however, are not banned from warning employees about their employers. Even existing obscenity laws that depend upon community standards of offensiveness and prurience are, Sunstein insists, "not a bit less partisan than anti-pornography legislation."^[16] Insofar as the community standards reflect a particular viewpoint about what sort of noncommercial, sexual speech is appropriate, the corresponding regulations are not neutral. In this case, as in others, the government upholds certain values over others.^[17]

To be sure, Strossen and other liberals criticize the intrusion of the courts into the sphere of all sexual speech, including that which the courts deem obscene. Still, if the First Amendment defense of pornography takes the important question to be whether women's inability to be heard as they either want to be heard or hear themselves can justify restrictions on the free speech of pornographers, antipornography feminists understand the question differently. Why is the appeal to free speech protections more concerned with protecting pornographers than with protecting other possible elements of free speech such as the right to advertise cigarettes on television? Why should First Amendment jurisprudence take its goal to be reinforcing obstacles to women's abilities to secure compliance with what they take as their illocutionary aims? If people do not have a right to be understood the way they understand themselves, it nonetheless may seem unclear why recourse to the principle of

free speech should take as its goal defending the construction of a hostile environment for asserting and defending their self-interpretations.

MacKinnon's explanation for this defense involves what Sunstein has called the problem of the baseline.^[18] First Amendment protections have been appealed to as support for the construction of a hostile environment for women's assertion of their self-understanding because those who make this appeal assume the naturalness of the existing social order. Under this assumption, interventions of the courts or government to change existing distributions of goods or to alter social relations of power are taken to be impermissibly partisan, while support for the status quo appears neutral. Thus, with regard to the First Amendment the so-called Buckley dictum claims that "the concept that government may restrict the speech of some . . . in order to enhance the relative voice of others is wholly foreign."^[19] And with regard to the debate over pornography, this dictum is taken to mean that pornographic speech cannot be restricted in order to enhance the relative voice of women. But, from MacKinnon's point of view, this inference simply means that since men already have the power to depict and hear women as they want, as well as the power to secure what they take as their own illocutionary aims, it is a violation of neutrality and the First Amendment to regulate their speech. But it is no violation of the principle of free speech to ignore the way in which the assertion and reception of women's voices are potentially skewed by a distorted communicative environment or, in general, not to regulate the speech of the powerful to help secure the illocutionary aims of the powerless. As MacKinnon writes, "Speech theory does not disclose or even consider how to deal with power vanquishing powerlessness; it tends to transmute this into truth vanquishing falsehood, meaning what power wins becomes considered true. Speech . . . belongs to those who own it, mainly big corporations."^[20]

Of course, pace MacKinnon, a different point of view is not completely alien to the history of Supreme Court decisions. This point of view is concerned not only with the so-called participant rights of all citizens to engage in public debate, the right Strossen emphasizes, but also with the rights of an audience of citizens to hear competing positions.^[21] Thus, in Red Lion Broadcasting Co. v. FCC,^[22] the Court referred to the rights of viewers and listeners to hear different points of view as against the rights of the broadcaster to monopolize the airwaves. And in Kleindiest v Mandel , which upheld a decision to deny Ernest Mandel a visa to enter the United States to participate in a conference at Stanford

University, Justice Marshall's dissent rests the case squarely on the First Amendment rights of Mandel's American audience.^[23] One might argue along these lines that the publication and circulation of pornography similarly violates the audience rights of citizens insofar as it helps to obscure or distort an understanding of the content of women's speech acts.

The claim here has to be made somewhat carefully. On this reconstruction of the point of antipornography feminism, the claim is not that pornography gags women's mouths or censors their words. The point is rather that, by affecting their ability to persuade others of what they take to be their illocutionary aims, it also affects the ability of their audience to hear them without what might be called disturbances in the field. Banning a speaker, shouting him or her down, and blowing whistles while she or he is trying to speak are all clearly recognized as violations of both the speaker's participant right to free speech and the right of the audience to hear competing points of view. The antipornography feminist claim appears to be similar: pornography obfuscates a mutual understanding of the illocutionary aims of women by creating the same sorts of disturbances and therefore violates not only women's access to free speech but the audience rights of those who seek to come to agreement with women on their illocutionary aims.

Still, if this sort of reasoning has found its way into the First Amendment reasoning in some cases, it seems to be employed when that reasoning turns to pornography only to defend the audience rights of those who want to receive pornographic materials and hear pornographic ideas.^[24] This circumstance can only add fuel to antipornography feminist ire, for it may seem that the idea of audience rights should rather extend to the notion that the publication and circulation of pornography obstructs the ability to hear different ideas of different women's or individual's needs, goals, and desires. Indeed, it might seem only a small step from the rationale of audience rights to a broader principle: the First Amendment is not meant simply to allow for a cacophony of claims, where those that are the loudest or have the most financial clout behind them or can procure the greatest access to communications media therefore survive or win out over those with less power. Rather, a more substantive right to free speech might be concerned with eliminating precisely those conditions that distort or intrude upon social capacities to communicate or to hear and address one another's claims. These include shouting and blowing whistles but also the effects of money and power and, antipornography feminists insist, the pornographic intru-

sion on an ability to understand what a particular woman takes as her illocutionary aim.

The interpretation of the meaning of the principle of free speech that Strossen defends under the idea of content-neutrality understands it to protect a personal liberty to say and hear what one wants as long as that speech does not present a clear and present danger to an important interest. Under this interpretation, one's beliefs, attitudes, and opinions are one's personal property, and the state cannot intrude upon their expression without very serious reasons. The freedom of speech is the freedom to say and listen to, or not to say and not to listen to, what one chooses, to affirm those beliefs that one wants, and to do so without fear of governmental intrusion or reprisal. The understanding of the freedom of speech to which MacKinnon and others appeal appears to be very different, however. Here the idea is that if we are to have what Holmes called a "free trade in ideas"^[25] or an uninhibited domain of free public expression, then it is not enough simply to allow everyone to speak if they can, if the public space of expression is not already filled, or if weightier factors such as money and power do not prohibit them from speaking. Nor is it enough to point to audience rights to hear different points of view. Rather, an unrestricted domain of expression means that individuals are able to hear different points of view and to communicate with one another without those distortions, constraints, and inhibitions that are obviously caused by violence or shouting but are also caused by relations of power, immense differences in wealth, and, antipornography feminists suggest, pornographic contributions to societal attitudes about women.

Antipornography and liberal or pro-pornography do not differ only in their understandings of the meaning of free speech, however; they also differ in their understanding of the meaning of equality. To make this point, I shall first look briefly at Ronald Dworkin's account of the meaning of equality as it pertains to the issue of pornography^[26] and then turn to MacKinnon's view.