Prof. Guy Longworth writes in Aeon-
There is no 'right' to produce pornography or anything else which is repugnant. I don't have a right to fart in your face. What obtains is a Hohfeldian 'immunity' under highly circumscribed circumstances- e.g, you are Swiss and sitting down, rather than politely offering me your seat, in a crowded Geneva tram and me arse is up against your phiz and we've all been eating nothing but fondue and, like, the Spirit of Carl Jung descended upon me and a Calvinist
Rights aren't philosophical, epistemic or Universal. They are local, protocol bound, and either provide an incentive compatible remedy under something like a bond of law, or else they are 'Bullshit'.
It is true that Philosophers may refer to Rights. But, since such Rights are not linked to Remedies, this is merely a figure of speech- something metaphoric. A meta-metaphor is created when Rights are referred to as arising out of something which resembles the Laws of Physics. In other words, a mere figure of speech is treated as a fact about the world and a further figure of speech is constructed on that basis. The result of such sloppy thinking is likely to be an ex falso quodlibet explosion of nonsense.
In the case of pornography, the question is not about production- save in so far as others may be involved- but about dissemination. Furthermore, from the legal point of view, 'the right to expression' is never absolute and only has a remedy in law where it is suppressed in an arbitrary manner such that due process is denied.
Longworth takes a different view-
However, that defence is effective only insofar as the exercise of that right doesn’t at the same time undermine others’ freedom of speech.
This is nonsense. Hohfeldian analysis of Rights is pertinent here. What we are speaking of is an 'immunity'. It is effective no matter to what degree it undermines others' freedom of speech. That is how immunities work. Where you have an immunity, no one else has a 'freedom'.
A freedom which has no defence against a rival claim is not a freedom at all. A prisoner may say 'I have the freedom to walk out of the Jail'. He gets beaten by the guards when he tries to do so. Is it the case that he really was free but that his freedom had no defence against the freedom of the guards to kick the shit out of him? No. He wasn't free in the first place. He was a prisoner.
It may be my view that Longworth & his chums are 'undermining my freedom of speech' by refusing to take cognizance of my psilosophical arguments. However, coz I don't got a PhD in that shite, nor am I teaching it somewhere nice, they have an immunity in this respect.
Suppose this were not the case. Then, for any given crime, an '
actio libera in causa' would provide a defence in Law. In other words, you could commit any crime or nuisance simply by deliberately getting into a state such that an immunity of a relevant sort would arise.
And it has been argued – for example, by Catharine MacKinnon in Feminism Unmodified (1987) – that the production and consumption of (at least some forms of) pornography can have precisely that effect on women’s freedom of speech.
But that argument has been disregarded because it was silly. It did not feature a plausible 'Structural Causal Model'. There were many countries where women's 'freedom of speech' was non-existent for the same reason that Porn was very scarce and its possession subject to drastic punishment. Conversely, Nordic countries with lots of Porn had superior freedom of speech for women.
Suppose I think the women in my life talk too much. Will my looking at a lot of porn really cause the women around me to fall silent?
Why is this cretin mentioning MacKinnon? The answer is that there is an academic availability cascade, involving J.L Austin, focused on her foolish notion that 'pornography constructs women's nature'.
As the Judge who decided against MacKinnon's Indianopolis Ordinance banning porn that showed women in a subordinate position, observed MacKinnon was seeking to legalize Thought-Control. Porn which showed women as equal, was fine no matter how gruesome and graphic
Some feminist philosophers, like Langston & McGowan, defend MacKinnon by saying the judge did not understand what she was saying. Porn does something which is bad. It is not like other speech. But, if this is the case, then Porn could be used to produce that bad effect. Instead of drone-striking Terrorists we should bombard them with Gay porn of the vilest description. They will then get busy buggering each other to death.
Indeed, if some speech acts really do things, then- in some sense- magic works. Instead of going to Harvard, smart kids would be queuing up to go to Hogwarts.
Moreover, instead of wasting money on the Pentagon, we should get Hollywood to make movies depicting our enemies as perpetually on their knees sucking off strangers. Instead of spending money on police officers, we should have music videos depicting armed robbers as constantly jamming their shotguns up their own backsides.
McGowan writes-
This is nonsense. Saying 'I do' does not constitute the act of marrying. That action is performed by the Registrar or Priest in accordance with the law. All that the couple do is affirm that they want the act to proceed. Speaking constitutes only the act of speaking. Promising is not necessarily a speech act but a verbal contract may involve a promise. It depends on the jurisdiction.
What a legislator in Pretoria says does not enact legislation. The President of the Republic has to sign off on it. Then the thing has to be enforced. If some guy in a uniform isn't arresting and removing Blacks who are trying to vote then it may be the case that the law is a dead letter. Speech does not by itself subordinate anybody. Being beaten by a bunch of goons may have that effect even if they are completely silent. Humans have been subordinating animals for a long time now. It really isn't necessary to be Dr. Doolittle to achieve this result.
MacKinnon wrote
This is nonsense. All that matters is the material consequences of not behaving as people with power want you to behave. Speaking authoritatively does not matter. Mums may do so because they love us and don't want to beat us. But a sociopath won't bother. He may laugh while he burns our ears off for some minor infraction. We don't give him backchat, the way we do our darling Mummy. We tiptoe around him smiling ingratiatingly.
Words and images aren't how people are placed in hierarchies. It is their immunities and entitlements which establish who is top dog.
McGowan speaks of two different types of 'authoritative speech acts'-
Exercitive speech acts are not authoritative. However, a coercive mechanism which punishes transgressions of a certain sort may make a 'best guess' at what rule it upholds into an action-guiding statement. Mum's saying something doesn't make it so. We push and prod till we find out where her genuine 'red line' is. The same is true of any non-sociopathic type of authority.
Similarly no 'verdictive' speech act is authoritative unless there is a coercive mechanism of a sadistic type. But if there is, then that act could be omitted- possibly with even better results. Prudence would militate for even more irreproachable conduct. There is always a 'moral hazard' in setting down limits. People may feel they can sail close to the wind. Overstepping the mark, initially perhaps by accident, they become sceptical that the rule will be enforced. We have a slippery slope towards a scofflaw type anarchy.
Some people like talking but it is safer to talk nonsense. Don't commit yourself save for consideration. The Philosophy of Language is useless because Economics militates for Silence and Cunning. It may be that most pornographers have a misogynist agenda. But they keep quiet about it so as not to reduce their market share. By contrast, Philosophy is masturbatory. It keeps trying to play with itself even if it can't find its pecker.
Consider Longworth's essay which begins with the flaccid recognition that-
Total autonomy is a myth.
This is like the discovery that you aren't hard and it isn't long enough to turn on the TV now you've lost the remote.
Not being hard doesn't matter so long as you can get hard when it would do most good. As for 'autonomy' all that matters is whether there can be a 'partial ordering' or 'poset' corresponding to relevant states of the world.
Much of what each of us does depends on others playing their part.
Which is why we try to ensure the thing is 'incentive compatible'- i.e. others have an incentive to 'play their part'. This is a purely economic matter. We don't say a guy who can dine at any restaurant he likes is 'heteronomous' or dependent on others for food.
I can’t close the suitcase without your help.
But if you pay me to do so, I don't think of you as helpless.
You can’t find your way to the station without mine.
But if you hire me as your guide, I don't think of you as an abject waif or stray.
Neither of us will drive the train that gets us to Blyth. And so on, and so on.
But, if we can pay money for tickets then we are 'autonomous'. We could have chosen to hire a car or a helicopter or whatever.
However, some of what I do seems closer to being solely up to me.
What you do with your discretionary income is solely up to you.
I type, and then delete, the word ‘expression’. You suggest ‘word’. I scowl. Where should we draw the line, or lines, between the things we do that depend on others playing their part, and the things we can do freely, without depending on others?
Game theory answers this. If the outcome of your action depends on another's reaction, then and then alone does this question arise. However, for large enough groups of players under certain economic conditions you get 'open markets' and so the reactions of others ceases to matter. Only their 'opportunity cost' is relevant and so long as it does not change, we need not puzzle over their motivations.
And what turns on the answer to that question?
Economics.
One key battleground here concerns some of the specifically linguistic things we do.
Nonsense! There is no battle, and thus no battleground, for some stupid shite made up by psilosophers.
Your uttering some words seems to be solely down to you.
No. It is solely down to the circumstances. You don't say, 'Happy Birthday Mummy!' to a fat guy who is writing you a parking ticket.
Your persuading me to replace one word with another, by contrast, depends on my cooperation: your attempt to persuade me will be successful only if I accept what you propose.
So, persuading only succeeds if the object of persuasion is persuaded. Why stop there? Let our knowledge increase. Say 'persuading geese to be geese only succeeds if geese are persuaded to the geese.'
What about your act of proposing that I make the change, sandwiched as it is between your merely uttering some words and your ultimate end of persuading me? Is your proposing autonomous, or is it like persuading, in that it depends on others playing their role?
Proposing and persuading are autonomous if the person doing so is doing it of their own volition for some purpose determined by themselves. It does not matter whether they succeed or not. On the other hand, if a gangster says he will kill your family unless you persuade somebody to do something, then you are not acting autonomously even if you do succeed.
J L Austin, a British philosopher working around the mid-20th century, made important progress in trying to classify the linguistic things we do as acts of speech or speech acts. In his book How to Do Things with Words (1962), Austin called the act of uttering meaningful sentences – eg, ‘You should write “word” there’ – a locutionary act. Acts of that sort might be performed with any of a variety of further goals, from practising one’s diction or performing in a play, to commanding or persuading. And he called the act of persuading someone to replace one word with another, or offending someone by calling into question their literary abilities, a perlocutionary act. These are acts that depend on consequences beyond the merely linguistic: I will have persuaded you only if you accept the course of action I proposed; I will have offended you only if you take offence.
The problem here is that there is no 'Momus window' into the soul. We don't know our true intentions nor the true motives of others. Some one who does what you say may not have been 'persuaded' at all. They may be seeking to lull you into a sense of false security so as to get the better of you at the end of the day.
Austin died young. Had he lived longer, it is likely that his views would have evolved to take into account scientific developments.
Austin distinguished locutionary and perlocutionary acts from a crucially important third sort of thing we do with words. Acts such as proposing, or stating, or telling, or asking, or warning, or refusing he called illocutionary acts.
These represent urgency or preference intensity. However, they need not be linguistic at all.
As can be seen from the list of examples, this sort of act is of central importance. Illocutionary acts are our basic moves in the game of linguistic communication.
A baby crying is performing a very effective illocutionary act. But so is a dog wagging its tail and holding its leash in its mouth.
We rarely perform locutionary acts without doing so in order to perform illocutionary acts.
Sadly, the 'bullshit' which passes for philosophy is a counter-example.
We utter meaningful sentences in order to tell people things, or ask people things, or perform some other illocutionary acts. And although we also perform illocutionary acts with further ends in view – in this case, perlocutionary ends – we will have achieved our minimal communicative ends in performing an illocutionary act even if our further ends are frustrated. For example, it might be important that I warned you even if I failed to dissuade you.
It might be more important to establish that it would have been a waste of breath to attempt a warning.
Austin’s aim was to clarify the distinction between illocutionary acts and acts of the other two sorts, the locutionary and the perlocutionary.
Austin failed because there is no 'Momus window'. For an evolutionary reason, we don't know, can't know, the true motives or psychological consequences of any communicative strategy.
His thought was that we perform illocutionary acts in uttering meaningful sentences (hence the Latin il); and we perform perlocutionary acts by performing illocutionary acts (hence the Latin per).
Sadly, we have no way of knowing if our sentences are meaningful. We can only verify whether or not they solve a coordination or discoordination problem.
His idea was that the performance of a locutionary act in propitious circumstances constitutes the performance of illocutionary acts.
But there is no way of determining if circumstances really were propitious or if they only appeared so at the time. Shouting at the TV may, purely coincidentally, have the desired effect. But, a better route is to come up with a plausible Structural Causal Model pertinent to the situation.
And the performance of an illocutionary act can have among its further consequences the performance of perlocutionary acts.
Or the thing may be a coincidence. Alternatively, there may be a wholly different Structural Causal Model which is operating.
A useful intuitive marker of illocutionary acts is that it makes sense to try to do them by making explicit what one is up to. For example, it makes sense to try to warn someone that the ice is thin by saying: ‘I hereby warn you that the ice is thin.’ By contrast, it would be senseless to attempt the same trick with a perlocutionary act: ‘I hereby convince you not to skate,’ is hopeless.
Nonsense! The guy who says 'I hereby convince you' does indeed convince you if he is holding a gun and has a reputation for cold blooded murder.
So, you perform the illocutionary act of proposing that I replace one word with another in performing the locutionary act of saying: ‘You should write “word” there’; you perform the perlocutionary act of persuading me to rewrite by so proposing.
But you can never know if you have ever actually done so. I may do as you say for some devious reason of my own, rather than because you have succeeded in persuading me.
We utter words in order to propose, or tell, etc; and we propose, or tell, etc, in order to persuade, inform, etc. We perform locutionary acts in order to perform illocutionary acts; and we perform illocutionary acts in order to perform perlocutionary acts.
That may be true of some people. Others would speak of habit, or a conventional reflex, rather than any type of deliberate 'performance'.
Illocutionary acts are therefore sandwiched between our merely uttering meaningful words and extralinguistic consequences.
But anything at all can be sandwiched in this way. Nemolocutionary acts are those performed by an invisible sucker-fish called Nemo which has stuck itself to illocutionary acts. Thanatolocutionary acts are attached to Nemo because every second that passes brings us closer to death.
From Austin’s perspective, our question about illocutionary acts is this. Can performing an illocutionary act depend on others playing their part? Can others figure in the propitious circumstances that enable us to perform such acts in performing locutionary acts? Austin seems to have thought so:
I cannot be said to have warned an audience unless it hears what I say and takes what I say in a certain sense. An effect must be achieved on the audience if the illocutionary act is to be carried out.
But you could be said to have warned the audience if you point in wordless horror at some approaching menace and then shit yourself and then run away.
Austin’s plausible suggestion caught on. It is now common to hold that illocutionary acts are distinctively subject to an uptake condition of the sort that Austin suggested – to hold that you will not have proposed, or warned, or told, etc, unless and until an audience recognises that what you are trying to do is proposing, or warning, or telling.
This is very foolish. A warning is a warning even if does not have the desired effect. On the other hand, it isn't a warning if it does have the desired effect but only because the audience is acting in a devious or perverse manner.
On this sort of view, illocutionary acts fall on the side of the things we cannot do unless others play their part.
Rubbish! We may, in the course of a soliloquy, utter a warning which we ourselves heed. Thinking aloud is still thinking. Furthermore, a Schizophrenic may hear Voices which lead him to do things which later turn out to be highly beneficial.
The question whether Austin’s suggestion is right is important in thinking about freedom of speech.
This is not the case as the author will amply demonstrate over the course of his article.
For, on one hand, we don’t think of this as concerning only our freedom to utter meaningful words – to perform merely locutionary acts.
Freedom of speech means freedom to say what we want. Some idiot may call this 'locutionary' but we have the right to call him a cretin and tell him to go fuck himself.
And, on the other hand, we don’t usually think that people’s freedom of speech is confounded just because they are unable to persuade other people, or to bring about any other such further consequences.
We do think that 'freedom of speech' means that good and truthful people persuade other good and truthful people in a manner such that the commonweal is advanced. That is why we support this freedom.
So, we don’t think of freedom of speech as just a matter of freedom to perform perlocutionary acts.
Freedom is about potential outcomes. Whether a 'perlocutionary act' has been performed may never be verifiable. What matters is that the freedom to perform it existed.
If that’s right, then in thinking about freedom of speech we are mainly thinking about freedom to perform specifically illocutionary acts.
Potentially illocutionary acts. It is impossible to verify if they are specifically illocutionary.
Obviously enough, such freedom depends on freedom to perform locutionary acts, since it is typically only in performing such acts that we are able to perform illocutionary acts. One way of undermining freedom of speech is therefore to block the performance of locutionary acts – for example, by violence or threat. We can think of the effect here as a form of locutionary silencing. However, Austin’s distinction between locutionary and illocutionary acts makes space for the possibility that freedom of speech might be limited in another way: by disabling their capacities to perform illocutionary acts.
How do you disable the capacity to perform something which know one can verify? Indeed, even in the absence of a locutionary act, an illocutionary act may have been performed. Consider the silence of the battered wife. It may speak louder than a thousand words.
And Austin’s suggestion that illocutionary acts can be subject to an uptake condition indicates a route to such disability. According to that suggestion, my performing an illocutionary act, such as warning or telling, depends on others being willing and able to recognise what I am trying to do. It is this that enables me to perform such acts. So, if others are unable or unwilling to recognise that I am trying to tell them something or warn them of something, then I won’t be able to tell or warn. That aspect of my freedom of speech will be distinctively undercut. We can think of such an effect as a form of illocutionary silencing.
Equally, my ability to perform magic is undercut by the fact that when I say 'Expecto Patronum', the Dementors- aka my teachers- don't disappear.
A Freedom is not undercut if its exercise does not have the consequences you want. It is only undercut if some unlawful action is taken to prevent its exercise.
Asking whether performing illocutionary acts depends on others, and so whether such illocutionary silencing is possible, has potential moral and political significance.
It is potentially highly mischievous. You can turn people against Freedom by misusing the term.
One important arena in which the question has come to the fore concerns the standing of pornography.
Austin died at a time when Lady Chatterly was still banned. Clearly, art was being wrongly identified as porn.
The right to produce pornography has sometimes been defended by appeal to the idea that it is a special case of a right to freedom of speech. However, that defence is effective only insofar as the exercise of that right doesn’t at the same time undermine others’ freedom of speech. And it has been argued – for example, by Catharine MacKinnon in Feminism Unmodified (1987) – that the production and consumption of (at least some forms of) pornography can have precisely that effect on women’s freedom of speech.
The internet has greatly increased access to porn. Has 'women's freedom of speech' declined? No. It has increased.
One form this argument takes is the following. According to Austin’s suggested uptake condition, performing an illocutionary act depends on being recognised to have attempted to perform it.
If the performer recognized it, that is good enough. Moreover, if the performer realizes that the thing is futile, she saves her breath and can move on to doing something more productive.
If one’s audience doesn’t see what one is up to, then one will have failed to warn them that it’s late, tell them the time, refuse another drink, etc. Being recognised as having attempted to perform an illocutionary act depends in turn on our attempt taking a form that is recognisable as such by our audience.
But audiences can walk away or throw stuff at you. Most of us don't have audiences. Professors may do so- but that type of captive credential craving audience will demonstrate, by the manner in which they live the rest of their lives, the singular futility of Academic illocutionary acts.
In ordinary circumstances, we can rely on a sort of match between, on the one hand, our abilities to make such attempts and, on the other hand, our audience’s ability to recognise such attempts. In those circumstances, it is typically straightforward to bring our audience to recognise our attempts. We are able simply to do what it takes to get our audience to see what we’re up to – for example, by uttering the words: ‘It’s time we left.’ However, being able to do this depends on our audience having appropriate abilities, and in particular on their having abilities to recognise attempts that match our abilities to make such attempts. For example, if I tried to tell a monolingual German speaker that it’s time we left by uttering the words ‘It’s time we left,’ then it is unlikely that they would be in a position to see what I was trying to do. Although I have an ability to make recognisable to fellow English speakers what I am up to, and although the German speaker has the ability to recognise such attempts by fellow German speakers, my ability and the German speaker’s ability don’t appropriately match.
This is silly. You just point at your watch and gesture towards the exit. Then you leave. The other guy will follow you if he thinks you are smart.
If that is right, then to meet Austin’s uptake condition depends on our, and our audience, having appropriately matching abilities.
No. It depends on them sharing a broadly similar Structural Causal Model. If we see smart people doing something, we do it to. This is Tardean mimetics. On the other hand you are unlikely to be persuaded if a homeless dude comes up to you and says 'You really should read the works of J.L Austin. His theory of illocutionary acts made me the man I am today'.
The difficulty now is that such matching abilities can be lost. Suppose, for example, that I regularly attempt humour by pretending to warn you that there is a fire, and that you know this about me. In pretending to warn you that there is a fire, I exploit my ordinary abilities to make recognisable that I am trying to warn you that there is a fire. To begin with, you might have been fooled by my pretence, via the operation of your ability to recognise attempts to warn you. Eventually, however, it is likely that your abilities will change: you will come to see my attempts to warn you as, instead, attempts to pretend to warn you. You acquire an ability to recognise attempts to pretend, rather than attempts to warn. Furthermore, it is likely that you will lose your ability to recognise my attempts to warn you that there is a fire. A fire breaks out, and I try to warn you, but you lack the ability to recognise what I’m attempting: all you can see is an attempt to pretend. As a consequence, uptake fails. If Austin’s suggestion is right, then I am unable to warn you.
This is what happened to Moral Philosophy. It kept crying wolf till people thought maybe wolves aren't such bad things. They may eat Moral Philosophers which is helpful to the environment.
Now suppose that the cause of such a shift in your abilities is not my undertaking foolish attempts at humour, but rather malicious and misleading gossip about me by some third party. ‘He’s always pretending that there’s a fire,’ they say. Trusting them, you come to see my attempts at warning not as what they are, but rather as attempts at pretending to warn. Match between our abilities is lost. I try to warn you about the fire. Uptake fails. According to Austin’s suggestion, I am unable to warn you. Malicious gossip has led to my illocutionary silencing.
This is silly. If the other guy isn't responding, you say 'fuck is wrong with you?' He says 'Look, Smith told me all about you. Pull the other one'. You reply 'Did you know Smith has a conviction for arson? Tell you what, I'm giving you my gold watch to come with me. When you see there really is a fire, you return it to me. Also kick Smith's head in next time you see him.'
The argument that pornography can undermine women’s freedom of speech is based on the idea that men’s consumption of pornography can have similar effects on their abilities to recognise which illocutionary acts women are trying to perform.
Yes, yes. We know. Men are all as pure as the driven snow. If they rape women it is because they weren't educated properly or else some Media Baron made a lot of money by brainwashing them with Porn. We should immediately release every single child rapist from Prison. Those poor dears need to be sent to a good College with a first rate Gender Studies department. They are the true victims of the evil Capitalist system.
Crucially, the central claim is that some forms of pornography train their consumers to see women’s attempts to refuse sexual intercourse as attempts only to pretend to refuse sexual intercourse.
Similarly, some forms of advertising train consumers to think that people who say 'please don't hit me on the head and run of with my Rolex' are actually expressing an urgent desire to be hit on the head and relieved of their Rolex.
No doubt, a rapist who is caught will have a sob-story for the Jury. He won't admit he is an evil bastard. He will present himself as the victim of Society who was only doing what he had been told was the right thing to do.
Such pornography either presents women as always willing, in a way that can undercut evidence to the contrary provided by what they say, or it presents women as regularly only pretending to be unwilling.
But this occurs even in societies where there is no pornography. Indeed, even babies and goats have been accused of seducing their rapists and having derived unholy joy from their life threatening injuries.
In either case, its uncritical consumption can undermine men’s abilities to recognise women’s attempted refusals of sexual intercourse as such.
In such cases, there is a 'reasonable person' test. I may be inspired to commit rape and arson after watching a Bugs Bunny cartoon. However, I know that I will be sent to jail if I yield to this temptation. No reasonable person would act in such a manner. I may need to see a psychiatrist. I certainly should not act on my impulse.
If women grant that doing something which is legal can cause a reasonable man to rape women then women should permit the quashing of rape charges against any man who watched legal porn.
Furthemore, a rapist who does not like porn would find it advisable to buy some dirty magazines so as to give himself a defence in law.
In that way, pornography can lead to failures of uptake.
Nonsense! It can lead to failure to get a hard on when confronted by a real woman.
And according to Austin’s suggestion, that can make women unable to perform acts of refusal.
Did Austin really make such a stupid suggestion? No. He wasn't an utter cretin.
If that is right, then the consumption of pornography can lead to a distinctive form of illocutionary silencing.
If that is right, then rapists who watched porn should have their convictions quashed. Nothing was their fault. They deserve compensation out of the public purse for all the suffering they had to endure while incarcerated.
Before proceeding, it is very important to notice two things about this argument. The first, and most important, is that the advocate of the argument is not claiming that illocutionary silencing is the only negative potential consequence of men’s inability to recognise acts of refusal, or that it is the worst such consequence. (Or, indeed, that this is the only negative consequence of the consumption of pornography.) Obviously, there can be other, and far worse, consequences. What the advocate wants to emphasise is that, in addition to other potential consequences, the consumption of pornography can have specific consequences for women’s freedom of speech.
Very true! Thus when Elizabeth Warren says 'No more fracking!' what men hear is 'Yes! Yes! Yes! Frack the fuck out of me big boy.'
The second thing it is important to notice is connected with the first. Failure to refuse sexual intercourse is not the same as consenting to sexual intercourse. So, even if the argument succeeds in showing that women can be prevented from refusing sexual intercourse through a man’s inability to recognise them as so attempting, it does not support the claim that the man is thereby permitted to undertake sexual intercourse.
Sadly, this is not the case as the law currently stands. It is no defence in law to say- 'My girl friend raped me. I knew it was pointless for me to deny that I wanted to be tied up and dosed with Viagra. I also knew it would be pointless to tell her I did not want to go up to her hotel room and pay a £1000 for sex. That is why I didn't say anything. But I did
not consent to sex with that woman. Nor did I consent to her taking money out of my wallet. Why are you charging me with having sex with an underage prostitute? I am the victim of theft and a serious sexual assault.'
If the argument that pornography can undermine women’s freedom of speech is successful, then it presents a challenge to the free-speech-based defence of pornography.
No. The two things are not connected. If it is true that porn can undermine women's freedom of speech then so too can any form of communication. Why? The primary purpose of porn is not to convey the idea that women want to be raped. Rather it is that people masturbate rather than find willing or unwilling sexual partners. Porn would not be a financially viable industry if people rape rather than jerk off.
On the other hand the primary purpose of many different types of communication- including privileged communications such as may be heard in a court room- may be to popularize this idea. There are still many religious groups which consider that a wife should never show any sort of eagerness for or pleasure in sexual intercourse. In other words, the ideal of conjugal intimacy involved not consent but a sort of disgusted obedience.
By contrast, some 'mainstream' porn may be justified on the grounds that if helps change attitudes to women's sexuality in a positive manner. Furthermore, if masturbation becomes an accepted alternative to sex, the lot of vulnerable women- in particular young girls- may be improved as the demand for prostitutes falls.
On the other hand, every one can agree that child porn is wrong because kids have no capacity to consent. Perhaps this should be extended to 'simulated' rape porn.
The proper 'Law & Econ' defence of porn is that masturbation is not wrong in itself. Enabling people to masturbate more frequently may have health and other social benefits. For historical reasons, some jurisdictions protected porn under the rubric of 'free speech'. This was foolish because such protection could extend to highly repugnant material. Now, it is true that the First Amendment has been interpreted to differentiate between 'obscenity' and pornography, but- clearly- that isn't good enough because to prove that something is
utterly without social value is to set the bar too high.
That defence relied on the idea that censoring pornography would have only a negative impact on the distribution of freedom of speech.
And thus some potential 'social value' would not be realized.
However, if pornography itself has a negative impact on the distribution of freedom of speech, then censoring it might have a net positive impact on that distribution.
But if it does so then there is a Superior Structural Causal Model of the world which Judges should follow. This would involve quashing the convictions of some brutal rapists who claim to have been influenced by porn.
Deciding whether or not censoring pornography will have an overall effect on the distribution of freedom of speech that is positive or negative will depend on comparing the negative effects of pornography on women’s freedom of speech with the negative effects of censorship on pornographers’ freedom of speech.
But to do this one would have to have a Structural Causal Model which made testable predictions. This is an issue for Statisticians and Econometricians. Philosophy can offer no guidance.
(In coming to such a decision, we would need to consider the potential effects of the consumption of pornography on women’s freedom to perform illocutionary acts other than acts of refusal. Although those acts are obviously of great importance, there is no obvious reason to think that they are the only potential casualties of the sorts of illocutionary silencing liable to be brought about by the consumption of pornography.)
Very true! Porn may be causing people to believe that I am not Beyonce and Obama's love child. This is highly detrimental to my financial prospects.
Is the argument that pornography can undermine freedom of speech successful?
No. It is a stupid argument. The fact that people watch porn does not cause them to rape women, in the mistaken belief that they are consenting to intercourse. Nor does it rot the part of the brain which picks out likely candidates for the role of Obama & Beyonce's beautiful baby- which, I can assure you, I am.
One key premise in the argument is that the consumption of pornography can cause men to lose their abilities to recognise women’s attempts to refuse sexual intercourse. Whether that is so is a large, and delicate, empirical question. However, the premise is independently plausible, and there is some empirical evidence that consumption of pornography can have relevant effects on men’s attitudes and abilities.
This is the definition of Junk Social Science. The fact is, thanks to the internet, young people are watching much more porn but are raping less.
(An even more difficult empirical question, bearing on the comparison discussed in the previous paragraph, concerns the extent and strength of such effects.) However, even if we accept that premise, the argument seems to depend on the further claim that Austin’s suggested uptake condition applies to illocutionary acts in general, and to acts of refusal in particular. Should we accept that further claim?
No. We can't know for certain whether an 'illocutionary act' succeeded.
The claim in question is that you cannot perform an illocutionary act, and in particular an act of refusal, unless your audience recognises that you are attempting to perform such an act, that you are trying to refuse. Is that true?
No. In law there is a 'reasonable person' test. Speaking generally, a reasonable person knows the difference between rape (except perhaps statutory rape of people who look much older than their chronological age) and consensual sex.
One thing that makes it difficult to address the general question is that it is not entirely clear what the criteria are by which acts of speech count as illocutionary, as opposed to locutionary or perlocutionary acts. Consider, for example, the act of cursing. It seems possible to curse when alone. However, that would show only that there are illocutionary acts that can be performed alone if cursing is an illocutionary act rather than a locutionary act. Consider, for another example, the act of informing. In this case, successful performance seems to require that one’s audience becomes informed, and that seems to depend, in turn, on uptake. However, that would show only that there are illocutionary acts that cannot be performed alone if informing is an illocutionary act, rather than a perlocutionary act such as persuading.
Suppose you persuade yourself to do something and others imitate you, then a 'perlocutionary act' has been performed. But we can't be sure that this is the case because there is no Momus window into the soul.
So, the question whether illocutionary acts depend on uptake is hard to answer without more information about Austin’s three-way distinction among speech acts.
A question whose answer depends on knowing the unknowable is not something we should waste time on.
In the face of that difficulty, we might turn instead to specific examples, assuming for the time being that they count as illocutionary. However, that course raises difficulties of its own. Consider, for example, the act of telling someone something. In cases in which there is a failure of uptake, we sometimes speak of having tried, but failed, to tell someone something: ‘I tried to tell you, but you were too engrossed in the news to listen.’ But equally often, we stick to our guns: ‘I did tell you, but you were obviously distracted and didn’t take it in.’ So, our ordinary thought about telling doesn’t seem decisively to support Austin’s suggestion over its denial. Similarly, we sometimes speak of having refused without uptake: ‘You must not have heard me refuse your offer of another glass.’ Again, ordinary thought seems indecisive.
Moreover, they can never be verified.
A third approach would be to try to treat Austin’s suggested uptake condition as itself marking off the illocutionary acts, or one special range of illocutionary acts, from the other sorts of speech acts.
But it would suffer from the same defect.
Consider what is involved in your persuading someone of something. There is your uttering some words. There is your recognisably trying to propose something to your audience. There is, perhaps, your proposing something to them, whether or not they recognise it. There is your audience recognising that you are trying to propose something to them and, thereby, your opening up a channel of communication with them. And there is your exploiting that channel by persuading your audience and their thereby becoming persuaded. Bringing about your audience’s recognition of what you are trying to do is surely something that you do, albeit with their cooperation. Whether or not this act is captured by the ordinary notion of proposing, it still involves a distinctive sort of achievement involving the opening up of a channel of communication, without yet exploiting that channel in order to bring about further, perlocutionary consequences.
But this can be wholly non-linguistic. Thus, the Philosophy of Language is irrelevant.
Acts of this sort are clearly subject to Austin’s uptake condition.
Nonsense! When we imitate a guy who is doing well for himself there is no communication and no uptake. But this smart guy knows what is going on and may act strategically so that it is as though he did communicate and there was uptake.
Can they figure in the argument in place of either a less clearly delineated class of illocutionary acts or specific examples of acts, such as warning or refusing? The difficulty facing this suggestion is to connect acts of this sort – acts that depend on recognition – with our concern to protect freedom of speech.
Nothing depends on 'recognition'. What matters is whether the outcome of 'following' a guy is good for us or bad for us.
In advance of further discussion, it is not clear that acts that depend on uptake are the sorts of acts that we are concerned to protect when we are concerned to protect freedom of speech.
We are only concerned to protect freedom of speech because it is socially utile. But, such freedom may be suppressed if the opposite turns out to be the case.
There is more to say about the three approaches we’ve considered to this point, but suppose that they all fail. Would that mean that the argument that pornography can undermine freedom of speech also fails? Not immediately. Although that argument is often presented as depending on Austin’s uptake condition, it is possible to develop a version of the argument that depends only on a weaker condition. The uptake condition, recall, has it that illocutionary acts depend on recognition. A weaker condition would be that the performance of illocutionary acts depends not on attempts to perform them being recognised by their audience, but only on their being recognisable.
The problem here is that anything is potentially recognisable as anything else. A man may mistake his wife for a hat. This 'weaker condition' gives illocutionary force to the rantings of imaginary lizards from the 44th Dimension.
The weaker condition is more plausible than the uptake condition, at least when we consider specific examples. ‘I told you, but failed to do so in a way that you were able to recognise’ seems immediately bad in a way that ‘I told you, but you were obviously distracted and didn’t take it in’ isn’t.
Why? The first is more polite. You could say that to your boss, laying stress on the 'I failed to so' bit. The second is not polite. You should not say that to your spouse because the stability of a marriage depends on a mutually convenient fiction that each gives ear to the other's pet peeves.
Furthermore, the weaker condition can sustain a version of the argument.
But at the price of sustaining the argument that you have an imaginary lizard up your butt and it, not you, is talking.
According to this version of the argument, the problematic effect of pornography isn’t preventing recognition of attempts to refuse. It isn’t supposed to serve, for example, as a momentary distraction. Rather, its alleged effect is undermining men’s abilities to recognise such attempts, and so rendering those attempts unrecognisable by their audience.
Why not simply say 'All rapists are innocent. They thought they were having sex with furniture. They did not recognize that a human being was involved.' ?
If that is right, then the argument surrounding pornography provides one example of how questions about the autonomy of speech acts can have potential moral and political significance.
If that is right, then people influenced by 'arguments surrounding pornography' may be committing epistemic rape because they have lost the ability to recognize that 'fuck off, you big fat cretin' does not mean 'Wow! You sure are a smart dude, Prof.'
This has potential moral and political significance because an imaginary lizard from the 44th Dimension may climb up their bum and use them as a meat puppet.
But it is plausibly only one example of a wider class. Acknowledging our dependence on others, even with respect to what we can do with words, is essential to understanding the proper extent of our freedom.
If this guy is dependent on me, among others, even with respect to what he can do with words, then he must acknowledge that he is well and truly fucked. That is the proper extent of his freedom. No doubt, he may appear to reply 'I am not compelled to acknowledge any such thing.' But that's just the imaginary lizard talking.
