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

Dichotomising Continua, Denying Ambiguity
and audience can render an otherwise offensive message merely
silly. Each year thousands of Germans dress up as Indians, Huns,
Vikings, and Africans for the Cologne pre-Lenten Karneval. Some
groups call themselves man-eaters, jungle brothers, and cannibals
and wear blackface. With typical Teutonic thoroughness one man
visits American Indian reservations every other year to buy artifacts
and learn more about the culture. "Indians ... say 'You're European.
Go be Vikings.' They think we're crazy. . . . Hey, I can't help
it. I just don't dream about being a Bavarian." 48
Law is the construction of boundaries, which always are over- and
under-inclusive. But when the state regulates speech, every categorisation
is a hard case, not just those at the edge. Bans against
pornography, hate speech, or blasphemy are forced to admit exceptions
for politics, art, literature, and scholarship that are capable of
engulfing the rule. Aesthetic criteria are inescapably political. All
symbols are irreducibly ambiguous. Context, history, identity,
audience, relationship, and motive can invert the moral quality of
speech. But law decontextualises, aspires to universalism, and finds
motive hopelessly elusive.
///. Confused Consequentialism
Because utilitarianism is the dominant contemporary justification for
criminal justice—indeed, the foundation of the modern state—the
regulation of speech requires consequentialist arguments. 49 Robin
Morgan gave the feminist campaign against pornography a central
slogan: "pornography is the theory, and rape the practice." 50 The
first newsletter of Women Against Violence in Pornography and
Media cited convicted rapists' recollections of being aroused by
pornography to argue that "even the most banal pornography
objectifies women's bodies. An essential ingredient of much rape
and other forms of violence to women is the 'objectification' of the
woman." 51 Judith Bat-Ada contended: "Saturation with straightforward
female sexual stimulus leads slowly but inevitably to the
need for, and the acceptance of, such things as child molestation,
incest, and sexual violence." 52 All the empirical research actually
finds, however, is that exposure to violent images elicits aggresive
feelings, not acts; and sexualising violence has no independent
effect. 53 Supporting bills pending in Massachusetts and the U.S.
Congress (despite the unconstitutionality of the Indianapolis ordinance),
Catherine MacKinnon argued:
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