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

Addressing the Harms of Speech
enhancing civility, the redress of speech harms strengthens community.
The plurality of communities offers a safety valve for dissent;
those who cannot or will not offer the respect demanded in one
community can move to another. For the same reason, some social
spaces should remain unregulated by any community—a speech
frontier for the incurably disaffected.
Communities should regulate speech informally. A decade ago I
criticised informalism for simultaneously extending unwarranted
power to the state and false hope to the powerless. 28 Informal
community responses to speech harms do just the opposite, exercising
influence in situations where power is inappropriate and indifference
unacceptable. The ambiguity of symbols, nuances of meaning,
opacity of motive, and complexity of history and context—all of
which make the dichotomies of formal law an intolerably crude
instrument for regulating speech—are the essential grist for informal
processes, giving the parties space to negotiate. The process must be
initiated and controlled by the victim—not lawyers, police or prosecutors—since
a principal purpose is empowerment. Because victims
belong to subordinated groups, they require support from
former victims, group members, and others. For the same reason,
any third party must also be partisan, openly acknowledging the
social asymmetries that formality hypocritically obscures. The goal
is substantive justice not procedural neutrality, status equality not
conflict resolution. Indeed, the purpose is to give voice to grievances
borne silently, hurts suffered mutely. For this reason the process
must be accessible and speedy, since it lacks the in terrorem effect of
loss of freedom or wealth. The process is the punishment. 29 The
absence of coercive authority becomes an advantage, obviating the
procedural fetishism that distracts from the real issues. Informal
community responses are not limited to the lowest common denominator
of societal consensus; enclaves can prefigure a more inclusive
equality. Because the norms governing status relations are
inchoate and mutable, informalism legislates while adjudicating—a
conflation of roles that embarrassed legalists try to hide. The norms
that emerge from the experience of processing complaints empower
subsequent victims.
What do status victims want? Individuals want offenders to
acknowledge the harm and apologise. Groups want that personal
response to elevate collective status. The remedy must be speech,
not punishment or monetary compensation. 30 Just as insults are
performative utterances, raising the speaker's status at the expense of
the victim's, so the only corrective is more speech. Even the First
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