speech and respect - College of Social Sciences and International ...

The Excesses of State Regulation
How would the law handle a sexual harassment complaint brought
by Rudolphe against Emma Bovary or by Mildred Rodgers against
Phillip Carey for his obsessive pursuit in "Of Human Bondage"? 33
Motive defines the moral content of speech but remains opaque to
outsiders—and sometimes to the speaker as well. 34 Law's contortions
in attributing motive produce some of its least satisfactory
performances: degrees of homicide, actual malice in tort, contractual
meeting of the minds, undue influence on a testator, landlord or
employer discrimination, even legislative intent. The historical shift
from subjective to objective standards is an admission of failure.
Psychiatric resistance to forcing the nuances of medical diagnosis
into the legal dichotomy sane-insane should caution us against
obliterating the subtleties of literary and artistic production and
criticism by labelling a text pornography or hate speech. Whereas
mens rea usually aggravates or mitigates heinousness along a continuum
of culpability, the speaker's motive can render the contemptible
praiseworthy. Canadian authorities disregarded or
misunderstood motive when they banned the feminist documentary
"Not a Love Story" for presenting pornography in order to criticise
it. 35 "Paris Is Burning" walked a fine line between sympathetic
portrayal of New York's transvestites and transsexuals and homophobic
voyeurism. In order to mobilise their co-religionists, British
Muslims reproduced, translated, and read aloud the most offensive
passages in The Satanic Verses. Most viewers who condemned the
racist speech of the Ku Klux Klan and the White Aryan Resistance
applauded the public television programme in which a panel of
academics analysed the prosecution of a white racist for killing an
Ethiopian immigrant in Portland, Oregon. But motives always are
mixed. On his talk show Geraldo Rivera not only paired the White
Aryan Resistance with CORE'S Roy Innis but also encouraged Innis
to assault the racist by shouting "Go ahead, Roy!," then made
further shows about the fistfight, and allegedly taped yet another
about Innis and the KKK to augment his audience during the
television rating sweeps. 36 I cannot vouch for the purity of my own
motives in choosing a sensational topic for these lectures and spicing
it with racy examples.
Were legal regulation to take account of motive, even the
speaker's stated intent would be inconclusive. American Jews
accuse Philip Roth of fueling anti-Semitism by disseminating stereotypes;
feminists identify John Updike, Saul Bellow, and Arthur Miller
with their chauvinistic protagonists; Muslims heard Rushdie's voice
in every one of the fantastic creatures who populate the 547 pages of
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