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

The Excesses of State Regulation
rapidly, even instantaneously, like the optical illusion that flips
between a vase and two profiled faces. Whereas circumstances only
aggravate or mitigate the heinousness of other crimes, they can
transform speech from abhorrent to commendable and vice versa.
Subordinated groups play with their stigmata in order to neutralise
them; lesbians enjoy erotica that would be pornography if produced
or consumed by men. Legal formalism aspires to a universalism that
must willfully ignore context, as illustrated by the prosecution of
British black power advocates under the 1965 Race Relations Act.
Yet law's attempt to frame exceptions encounters great difficulty in
dealing with black anti-Semitism, minority homophobia and misogyny,
and female racism. Although the moral quality and hurtfulness
of symbols depend on the creator's motive, this is singularly
difficult to discern. Author or critic may insist that extreme misogyny
turns into parody, as Bret Ellis protested about his novel American
Psycho and Henry Louis Gates Jr. said of 2 Live Crew. And even the
best intentions may only mitigate, not excuse. The equally pivotal
audience response is unpredictable, divided, and fickle. The history
of art, literature, politics, religion, morality, and even science
should inspire healthy scepticism about the durability of contemporary
judgements.
The severity of legal remedies can be justified only by exaggerating
the consequences of speech, but consequentialist reasoning is
fatally flawed. Causation is complex and the responsibility of speech
unsubstantiated. All audiences actively engage in interpretation and
criticism—even young children seemingly mesmerised by television
cartoons. Preoccupation with the extremes—which alone provoke
sufficient outrage to mobilise the political support necessary for
prohibition—diverts attention from the quotidian—which inflicts far
greater harm. Hard-core porn and neo-Nazi ranting contribute
much less to reproducing attitudes toward race, ethnicity, gender,
and sexual orientation than do the mass media, advertising, popular
culture, political rhetoric, childrearing practice, education, and
religion. But legislators and judges openly refuse to confront modal
behaviour.
If the consequences of speech are too indeterminate to justify
punishment, the effects of punishment are positively perverse. The
severity of legal punishment, combined with uncertainty and disagreement
about the moral quality of speech, make prosecutors
reluctant to charge, juries unwilling to convict, and judges hesitant
to punish. Formal law diverts attention from the content of speech to
the procedures used to suppress it, delaying the outcome and
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