Disempowered Speech

Author(s): Jennifer Hornsby

Source: Philosophical Topics , FALL 1995, Vol. 23, No. 2, Feminist Perspectives on
Language, Knowledge, and Reality (FALL 1995), pp. 127-147
Published by: University of Arkansas Press

Stable URL: https://www.jstor.org/stable/43154210

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PHILOSOPHICAL TOPICS
VOL. 23 NO. 2, FALL 1995

Disempowered Speech1

Jennifer Hornsby
Birkbeck College , University of London

Women are often represented as disempowered as speakers.2 Consider th

claims:

"Often I find there aren't any words that can say what I mean."

"Women's voices have gone unheard, masked by male power

realities incorporated into language."3

My project in the first part of this paper is to attempt to understand, in

terms taken from philosophy of language, what might make claims like these
true. I take them to illustrate the phenomena of, as I shall say, ineffability ("I
can't say what I mean") and of inaudibility ("I am not heard").4 1 hope to pro-
vide the sort of account of language and its workings that would satisfy a
philosopher that there can be such phenomena.5
Some women may think that all of our institutions, including the use of
language, have been shaped by powerful men. And we may then think that
the only relevant illumination here comes from a general understanding of
our social situation of a kind that some feminist theory strives to achieve:
Women's powerlessness in the use of language is then to be treated as one
more example of women's overall powerlessness. If this were all that needed
to be said, then my project would be redundant. But there are two reasons
why I think it is worth undertaking.
One reason is that it is not at all obvious what powerlessness in the mat-
ter of using language could consist in. Saying things seems to be easy.

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Suppose that you have an adequate vocabulary, and that you have the cog-
nitive equipment needed to get the words together, and the vocal equipment
needed to get the words out. Then it seems that you can say anything you
want and that you will be heard if there is someone with the same vocabu-
lary and equipment nearby. To the extent that saying something seems to rely
on so little, a woman who complains of an inability to communicate using
language is susceptible to being conceived as suffering deficiencies: She
must lack the wherewithal to put the appropriate meaningful sentence
together. Unless we are addressing someone already persuaded of women's
general powerlessness, claims of powerlessness in the matter of language
use might then be used as confirmation of women's inadequacy and might
seem to justify the slowness of the process of women's political and episte-
mologica! enfranchisement.6 1 take it to be a standing obligation of feminist
writing that where it portrays women as at a disadvantage, it must avoid por-
traying them in such a way that they will be construed as deficient.7
The second reason why women's powerlessness in the use of language
deserves an explanation is that it ought to be possible to render women's
claims about language intelligible in the context of an overall philosophical
account of language use. I think that that is possible. But it is commonly sup-
posed that the theoretical accounts of language that philosophers have offered
rely on a model of communication that could never accommodate differ-
ences of power among speakers.8 We need a proper understanding of lan-
guage as a social phenomenon, an understanding which is absent from much
analytical work.
A treatment of free speech also requires an understanding of language
use as the social phenomenon that it is. In the second, short part of the paper,
I shall make some suggestions about how a conception of disempowered
speech affects some debates about free speech. Free speech has been
defended as a fundamental right; and it has been attacked as something that
will seem worth countenancing only to those who stand to profit from its
defense. I shall argue that neither the defense nor the attack takes proper
account of the possibility of disempowered speech.

1. LANGUAGE USE, INEFFABILITY, INAUDIBILITY

I suggested that speech is, in a sense, easy and that because it is easy, dis-
empowered speech requires some accounting. But women who describe lan-
guage as "man-made" will respond that "[m]ales, as the dominant group,
have produced language, thought and reality";9 so that although, of course,
it is easy to speak as men do, and to say what men might want to say, what
we want is not easy at all. What we want, it will be said, is to express thoughts
which cannot be couched in the language of men.

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 This way of putting things - as if language were men's creation and their
property - is surely overstated. It certainly seems to underestimate women's
role in the actual use of language. (The utterances through exposure to which
children - girls or boys - have learnt to speak have surely been, by a long
way, more women's than men's.)10 Still, a radical view which takes "lan-
guage, thought, and reality" as simultaneously determined may help us to
appreciate why we should need an understanding of disempowered speech.
What is easy (relatively) is to say what one thinks. But it would be beside
the point that that should be easy, if it were impossible to think except by
using the concepts of a language one uncritically acquires. Can we genuinely
envisage a radical transformation of gender relations if our language per-
petuates women's subordination? Without calling language "man made," we
may agree that the language that any of us have at our disposal has been fit-
ted historically to a social reality of which we are critical - that its use by
speakers has carried assumptions about gender difference, for instance, from
which we should hope to be free. This is enough to make it disturbing to rec-
ognize the impossibility of getting our thoughts across otherwise than with
the expressions of a language we speak.11
The impossibility of thinking except by using the concepts of a language
has sometimes been presented in the claim that one is "trapped" by language:
Through language, a woman has found her way into social reality, but it is
an alien social reality from which there in no way out.12 This claim is not
merely disturbing but can be the source of the most extreme pessimism. If
there are no other lines along which to think than those of one's language,
then even if they are faulty lines along which to think (even if, for instance,
they are devaluing of women), there is nothing to do about it - nothing even
to think.

The pessimistic view we find here can be induced by a picture of the

individual thinker who uses language as enclosed by something which is not
of her making. But that cannot be quite the right picture. For if language and
thought are simultaneously determined, then it is in the social world that they
are determined: thinking subjects do not occupy a merely passive place
amidst a set of others ' practices; a thinking subject must be, at least, a lan-
guage user herself.
I outline a social account of language use before treating the problems
of ineffability and inaudibility. I hope to authenticate the experiences which
may be expressed in claims such as those I began from, but without falling
into the pessimist's trap.

A SOCIAL ACCOUNT OF LANGUAGE USE

The use of language is a sort of social action , consisting of the produc-

tion and reception of utterances. People do things with words - this is action;
and (though this may at first seem a strange way to put it) they do things to

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one another - this is social action: They tell one another things, or ask them
things, or try to persuade them of things, or whatever.
A general account of the use of a language13 would enable one to see,
systematically, how all the various things that get done with language can get
done. Speakers do this, that, and the other thing using a string of words on
an occasion. And there are countlessly many strings of words that they may
use on one occasion or another. What governs the patterns of connection
between their doing one sort of thing and another? What connects the vari-
ous things that they do on different occasions? What connects the various
occasions on which they do things with words?
Well, a view widely accepted among philosophers is that one portion of Analítica
a systematic account of the use of some language can impose system at the
level of the sounds that speakers produce. It treats the sounds that are words
and sentences as meaningful, and it provides associations of sounds with
meanings. So it says things of this sort:
(M) These sounds mean that - .

The usual idea is a theory which shows sentences as meaning what they do
by seeing them as composed out of words whose own significance contributes
systematically to that of the sentences in which they might figure. Such an
account is a theory of meaning for the language and can yield an instance of
(M) (with and 4 - ' filled in) for each sentence of the language.14
Now a theory of meaning in this sense does not mention people at any
point. It seems, then, to be quite remote from a social theory. And it simply
takes for granted the idea of sounds being meaningful: If it deals with the lan-
guage we speak, then it is made up of such obvious truths as "The sounds
'Dogs bark' mean that dogs bark"; but it does not say what it is for any sounds
to have meaning. In treating sounds in isolation from speakers, and in tak-
ing it for granted that the sounds are meaningful, the theory can seem to
introduce the materials for the pessimistic picture we wanted to avoid - of
an individual speaker as set against a language, yet possibly entrapped by it.
The answer is that theories of this sort, although they do not mention
people, can only be arrived at by a kind of abstraction from actual language
use - by people. This becomes clear when we consider what it is for a the-
ory of meaning for a language to be correct - to get all the instances of (M)
right. Immersed as we are in our own language, for which we find (M)'s
instances to be obvious truths, we do not need a theory, and still less do we
need to consider what a correct theory would be. But a theory's being cor-
rect consists in fact in its taking its place as part of a total account which
makes sense of the people who speak the language it treats. Someone
immersed in her own language has no need to articulate such an account.
But if one wants to understand people who speak a foreign language, one
needs hypotheses about what their words mean; and these hypotheses may

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take shape as part of a quite general account of what those people do with
words, which in its turn is part of an account of what they think, want, hope,
fear, and of how they relate to one another. The general account is one on
which everything psychological and social bears - actions, linguistic and
nonlinguistic; conventions, linguistic and nonlinguistic; institutions, lin-
guistic and nonlinguistic. If it had seemed to be an objection that a theory of
meaning simply assumed that sounds were meaningful, then it could now be
said that one sees what it is for them to be meaningful in the context of the
general account, which is an account of the people who use the language.
To appreciate how a theory of meaning can be a component in such an
overall account of language use, the first thing is to recognize a connection
between a property of the sounds and something that speakers regularly do
when they produce those sounds. One might say:

S produced these sounds

if and only if
S put into the open this thought, that -

where in any particular case the pairing of a sequence of sounds (■■■■) with a
thought ( - ) is given by a theory of meaning in the sense explained. But of
course this is only part of the story. For putting a thought into the open is only
one among many things that someone who actually uses a sentence does.
There can be no question of accounting for the significance of speech inside
a theory of meaning which takes no account of the great variety of things that
speakers do. And what a speaker does besides putting a thought into the open
depends on a great deal else than what sounds she produced.
Deborah Cameron has expressed doubts about theories of meaning. She
once wrote:

By paying attention to the whole context in which speech occurs,

the analyst would be spared the necessity of postulating invari-
ant correspondences of form and meaning: she could allow what
we all know, that words are used and understood differently by
different speakers at different times and in different situations,
and she could refer to the specifics of context in order to explain
that variation.15

By "invariant correspondences" here, Cameron may mean unchanging cor-

respondences. But if someone really did think that "correspondences
between "forms and meanings" were unchanging, she would have to deny tha
languages change. And one does not deny that languages change in propos-
ing theories of meaning: The facts that theories of meaning state are no mor
unalterable facts than the languages that people actually speak are unchang
ing things; any theory deals, in fact, only with a language at a moment in its
history.16 It may be, though, that Cameron, when she speaks of "postulatin
invariant correspondences," is not only calling attention to linguistic chang

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but is also questioning the idea that the words produced (at a time) can fig-
ure as a determinant, along with context, of what is communicated (at that
time). If so, then Cameron objects to the whole idea of a theory of meaning.
But perhaps Cameron's objections to theories of meaning can lapse, when it
is allowed that the data for a theory of meaning are always pieces of speech
in their contexts , which theorists have no need to "postulate." What Cameron
says "we all know" can then concern the great variety of things done with
words, for which indeed there are dependencies on the specifics of context.17
It is useful here to introduce the notion of a total speech act - of all the
things someone does on an occasion of using speech. But to be clear about
this notion requires being clear about the notion of a speech act in the first
place. Speech acts have been thought of sometimes as particular utterances
(as unrepeatable things), and they have been thought of sometimes as things
people do with words (which are repeatable things: Warning someone of
something , for example, is something that might be done by Jane today, by
Sarah tomorrow . . . ). The two different ways of thinking of speech acts get
put together when it is asked "What was her speech act on that occasion?"
with the expectation that, since there was a single utterance on that occasion,
there should be just one answer. But if "What was her speech act then?"
means "What did she do then, using words?," there can be a variety of dif-
ferent correct answers even when there is only one utterance. Each answer
tells of some different speech act: Learning which acts someone did on the
occasion of a piece of speech is learning more about her action then.18 Take
an example. I might come out with the words: 'Ronald Dworkin doesn't
understand what Catharine MacKinnon means by "silencing" '. There has
then been just one utterance, or action, of mine. But I have certainly done a
variety of things, or acts. One of the things that I have done is to utter those
words ; another thing that I have done is to put into the open the thought that
Dworkin doesn't understand what MacKinnon means ; a third thing that I
have done is to convey that I want to take issue with Dworkin ; a fourth thing
that I have done is to associate myself with those who find the notion of silenc-
ing a useful notion ; and no doubt there are plenty of other things that I have
also done. What should be meant by the total speech act on an occasion is
ALL of these things. Any actual utterance can be associated with some set
of speech acts. And in the particular example, the total speech act, as we have
imagined it, is made up from the various different things - uttering
putting into the open a thought . . . , conveying . . . , associating myself with
. . . , and. . . . Cameron's point that "words are used and understood differ-
ently by different speakers at different times and in different situations" may
be accommodated then: A single sentence, uttered on different occasions, is
used in the performance of a different total speech act on those different
occasions.

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 Thinking about speech acts in this way, we appreciate that an act of
putting a thought into the open (or of coming out with words as having some
meaning) is only one component of any total speech act. Putting a thought
into the open is an act of the kind that J. L. Austin called locutionary, and
locutionary acts are the focus for theories of meaning.19 But illocutionary
acts, which Austin thought of as done in doing locutionary acts, are those
upon which one needs to concentrate if one is to appreciate the social char-
acter of language use. Austin thought that what he called illocution had been
neglected, because, as he saw it, the study of language had been too much
focused on words and the study of action had been too much focused on
"ordinary physical action." Illocution is a phenomenon peculiar to linguis-
tic action, but it is not constituted simply of words having meanings: When
we uncover a concept of illocution, we reveal the use of words to be com-
municative action. A requirement of performing a fully successful illocu-
tionary act is that one's audience take one's utterance in some way that one
intends. Thus, warning someone of something, for instance, is said by Austin
to be illocutionary: One hasn't successfully warned someone of something
unless one's utterance has some admonitory effect on that person.
In fact it is very controversial exactly how illocution should be charac- uptake
terized. My own suggestion is that we see a speaker as communicating with
another (not merely as a producer of significant sounds) when we see her as
performing successful illocutionary acts; and that we cannot see her thus
unless we can take her to rely on a certain receptiveness on the part of an audi-
ence, who takes her utterance as she means it. Consider telling someone
something. Normally when a speaker tells someone something, her audience
is aware of having been told something. But awareness on the audience's
part requires recognition of what the speaker is up to. If we want to record
the sort of effect that someone's speaking has to have in order that we should
have a normal example of her telling someone something, then the only way
is to use the same word over again - the person she was speaking to has been
told something. The relevant effect of someone's utterance, where the act in
question is an illocutionary one, is very special: being the effect of being
taken to be of the act that it is (thereby) of.20 Of course a speaker who has
intentions appropriate to telling (or to warning or to whatever), and who
comes out with relevant words, may nevertheless fail in being recognized as
telling (or warning or whatever): It is possible that the audience does not
appreciate that this is what the speaker means to do. The speaker, in such a
case, may be said to have told, or warned, or whatever. But we should miss
the point of illocution if we were to characterize illocutionary acts by refer-
ence only to the speaker's intentions. The idea of acts as communicative is
missing until we allude to the mechanism by which an audience's recogni-
tion can constitute a speech act as being of some illocutionary kind. This is

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why I introduce the idea of a " successful illocutionary act": There is a suc-
cessful illocutionary act in the case - which, of course, is the usual case -
in which the speaker succeeds in being taken to be telling or warning.
The fact that you have successfully told an audience something seems
to rely on nothing more than you and her being parties of a successful lin-
guistic exchange. I give the name of "reciprocity" to the condition which
provides for the particular way in which successful illocutionary acts can be
performed. When there is reciprocity among people, they recognize one
another's speech as it is meant to be taken: An audience who participates
reciprocally does not merely understand the speaker's words but also, in tak-
ing the words as they are meant to be taken, satisfies a condition for the
speaker's having done the communicative thing that she intended. The exis-
tence of reciprocity can seem puzzling to people who think that an account
of linguistic communication can always be split up into an account of the pro-
ducer of speech and a separate account of the receiver of speech. But such
people refuse to see the social character of language use. The existence of
reciprocity is actually a perfectly ordinary fact, consisting in speakers' being
able not only to voice meaningful thoughts but also to be heard, by those
who share their language, as doing some of the things that they do when they
voice them.

INEFFABILITY

It is hard to give a phenomenologically persuasive account of the fee

ing someone has when she can't say what she means. But perhaps one c
nonetheless explain how a sort of mutedness might be part of someone
experience. In the nature of the case, we cannot state an actual example
what someone meant, where that is something that cannot be said: One c
not provide an example of an ineffable thought. But still an explanation cou
be given here - by providing a determination of an ineffable thought rat
than a statement of one. I suggest that we could know that on an occasio
(i) there is something someone might have meant to say and (ii) no wo
that she could use would enable her to say that.
The idea I began from of speech as "easy" is (roughly) the idea that i
is easy to say something. You produce certain sounds, and you have pu
thought into the open. But of course what we care about when we speak
not merely what thought we put into the open (or what we "strictly and lit
erally" say),21 but what total speech act we go in for. And that is not wit
our control in the way that which thoughts we simply put into the open
seem to be. For we speak in a social context in which we cannot just expr
a thought. What we are likely to be taken by audiences to have implied, f
instance, will be the things that they take, in the context of speech, to
implied by what we have said.

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 My suggestion is that when someone finds that there are no words that
say what she means, she may be finding that for any words that she might
use in an attempt to say what she means, there would be something unde-
sirable (from her point of view) about her total speech act. But that does not
mean that she has nothing to say. For it may well be that there is, as it were,
a potential total speech act which (per impossibile in her specific social sit-
uation) she might have gone in for. There can then be something she would
want to say, but something which, given existing social arrangements, pre-
vailing beliefs, and distributions of power, she cannot say.22
It is hard to illustrate this except by reference to examples that may seem
to trivialize the phenomenon. Part of the problem is that the relevant facts
about social arrangements are subtle, ill-understood facts. But we get one
kind of example when we think of cases where particular pieces of vocabu-
lary seem to have been appropriated. In Britain today, for instance, it is quite
hard to say what someone speaking fifty years ago might have said using
any of the words 'socialist', 'taxpayer', 'the public'. In some specific social
settings the word 'feminist' would come on this list.
But let me take a North American example. The word 'quota' has come
to be associated with a narrowly defined political agenda. As used by the
American right, a consequence understood as accruing to a practice described
as imposing quotas is that the practice is unfair or unreasonable. You might
think that a certain school should have a certain proportion of children from
its immediate neighborhood; but it may be difficult to express that thought
publicly otherwise perhaps than by representing yourself as a dangerous lib-
eral (or perhaps by engaging in such circumlocution as is bound to detract
from the main message). This is a case where in Britain, perhaps, isolated as
we may be from the particular piece of appropriation, we are actually able to
say what we take to be ineffable in another context. An idea of something truly
ineffable at a time would be the idea of something such that there is no place
from which it can then be said. It might be that any concept someone might
employ speaking from wherever she is involves commitment to a conse-
quence that she would not endorse: It might be, for instance, that she sought
a term without implications about gender and that any language at her dis-
posal simply lacked one.23 (We need not speculate here about whether sense
can be made of the ultimately ineffable - the unsayable in any circumstances.)
Consider the history of words like 'biddy', 'tart', and 'dolly', each of
which entered the language as endearing words, suited to be applied to
women found attractive by men, and each of which at some stage came to
have application to women who trade in sex. Presumably the change of mean-
ing is accounted for by some feature of the total speech acts of those who
employed the terms, as the meanings of those terms were evolving from the
approbatory to the derogatory. If, for instance, it were widely believed that

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it was safe to infer from the fact that a woman was found in a certain way
attractive to the fact that it was appropriate to treat her as a prostitute, then
certain total speech acts would be predictable, and, where meaning is con-
ceived as an abstraction from use, the particular change of meaning would
be accounted for. What others have done with words in the past restricts what
someone can do with them now. If a word has pejorated, there is nothing that
an individual speaker at a moment can do to repair it. We may think that
there is something that a woman might do but would only be able to do if
gender were constructed differently from how it actually is; then we see why
she should feel that there are thoughts she is actually unable to express. Of
course it will not always be obvious which of our terms, for instance, embody
gendered norms that we should not ourselves endorse. And it is possible that
someone can be right in finding a term unsuitable without being able to artic-
ulate her reason for finding it so. If someone has the experience of not find-
ing words to say what she means, the experience need not correspond to any
deficiency on her own part.

INAUDIBILITY

The account of ineffability just offered would place the blame for f
ings of ineffability on the state of the language. The account of inaudi
I turn to now places the blame more specifically on audiences of speech
When there is a case of inaudibility, as I shall suggest we understand
term, there is a breakdown in reciprocity.
Part of the idea I started from, of speech as easy, was the idea that a
son is heard if there is someone with the same vocabulary and with aud
equipment nearby. What reciprocity ordinarily ensures is that a person c
heard not simply as having said something meaningful but also as, f
instance, telling someone something. This is a peculiarly easy thing to
contrivance is needed where the presence of reciprocity can be relied o
Refusal
there is a counterpart now to the fact that illocutionary acts can be pecu
easy to do. They can be impossible to do. Just as it is more or less auto
that an attempt at an illocutionary act is fully successful when certain
conditions securing reciprocity obtain, so there cannot be a nondefective
formance when certain conditions do not obtain.
An example which illustrates this comes from the case of a woman
responding to a man's sexual advances. Seeing that reciprocity is usually at
work in language, we see that a successful illocutionary act of refusal makes
demands not only of a speaker but also of an audience: Such an act must not
only be attempted, it must also be taken to be. In the notorious words of an
English judge, "It is not just a question of saying No."24 The judge spoke in
a trial in which a man was acquitted of rape; and he wanted the court to
believe that the woman had not meant No by 'No' . But a different construc-
tion may be put upon his words. For a successful refusal, an utterance of the

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word 'No' is not enough: A woman may mean to refuse, but a condition of
her having successfully refused - that she be recognized as attempting to
refuse - may not be fulfilled; she is not heard as refusing.
Of course, taking the woman's part against the judge, we will say that she
did refuse. That is, we will say that she did an illocutionary act, and we will
not be concerned about whether there was a successful illocutionary act (in
the sense explained above). Defending the woman, we think that she was sin-
cere; and the question of how her act of refusal was actually taken can be irrel-
evant to her sincerity. The judge, however, wanted to put the woman's sincerity
into question: If she had been insincere, then indeed there would not have been
a nondefective act of refusal. By creating a presumption of her insincerity, the
judge may have made it difficult for anyone to believe that the woman had
refused (even if she had). And where a presumption of a speaker's lack of sin-
cerity is in place, it is impossible for a speaker, with however much sincerity
she actually utters 'No', to be taken as refusing. A presumption of insincerity,
then, ensures a breakdown in the kind of communication constituted by suc-
cessful illocutionary acts for which reciprocity ordinarily provides. In the
court, "It is not just a question of saying No " may have created such a pre-
sumption. If the presumption were accepted in the actual circumstances in
which a woman said 'No', then it would be impossible for her successfully to
refuse. Then there would be something - a communicative thing that is ordi-
narily done quite easily - which she simply could not do with words.
No doubt it requires some explaining how it could become impossible
to do a perfectly good act of refusing even using a word as well suited for
refusal as 'No' is. But this impossibility could be explained if we thought that
a certain view of women prevailed in some quarters. I mean a view accord-
ing to which women who do not behave with especial modesty or who dress
with especial circumspection are ready and willing to gratify men's sexual
urges, but will feign unwillingness (whether through a pretended decency or
through a desire to excite). If there were a pervasive view that this is how
women conduct themselves, and if the view determined a man's expecta-
tions, then it is easy to imagine circumstances in which the harmony of
speaker's intention and audience reception, for which reciprocity generally
provides, could be missing.
The example of sexual refusal provides a stark and rather special
example of a person who, through no fault of her own, is deprived of her illo-
cutionary potential. Different sorts of example would be needed to show that
such a phenomenon of inaudibility could be genuine and widespread and
could affect illocutionary acts different from refusal. It would be important
to allow that a breakdown in what reciprocity ordinarily secures might not
be total (so that only some aspect of an attempted communication is impos-
sible). And it would be important to recognize that such breakdowns could
have cumulative effects on possible total speech acts. It is an empirical claim

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that the promulgation of a demeaning view of women has rendered women
relatively powerless parties in communicative exchanges. I have wanted to
make such a claim intelligible, by connecting one notion of being unable to
be heard with something fundamental to language's normal operation.
For the purposes of offering explanations, I have distinguished ineffa-
bility from inaudibility. But the phenomena need to be seen hand in hand in
any plausible account. The interconnections of belief and meaning that can
give rise to ineffability are interconnections forged in the use of language,
by way of total speech acts. The phenomenon of inaudibility shows how the
prevailing beliefs about the members of a group may limit the illocutionary
acts that its members could go in for. Inaudibility, then, feeds into the con- Respuesta a la
ditions that make for ineffability: It can be a cumulative consequence of the pregunta:
conexión entre
members' being unable to be taken to say something that no one can actu-
silenciamiento
ally say it. If women have indeed had their possible thoughts rendered inef-
locucionario
fable and find their possible meanings inaudible, then these are joint effects
(ineffability) y
of a demeaning view of women.
desactivación
It may be useful now to think of both phenomena under the head of
ilocucionaria
silencing.25 By speaking of "silencing," one sees both phenomena as forms (inaudibility)
of disempowerment: The silenced person is someone who literally cannot do
with speech what she might have wanted to, whether because the language
does not let her (ineffability) or because a certain kind of communication is
not possible (inaudibility). And by speaking of "silencing," one makes room
for the idea of, as it were, an agent of disempowerment. When Catharine
MacKinnon says that pornography silences women, she means us to see the
production, distribution, and consumption of pornographic material as a set
of social practices that work to produce disempowered speech. If women's
speech is disempowered, then actual social forces have made it so.

2. FREE SPEECH

FREE SPEECH AS A RIGHT

Free speech is often conceived as a fundamental right. The connection

there are between the notions of "power" and of "right" suggest that an id
of disempowered speech would affect this conception. Powers (or abilities
provide for the exercise of rights, and rights provide for the legitimate u
of powers. But how exactly are those who defend a right to free speech
affected by the idea that some people's speech is disempowered?
To the extent to which someone is disempowered as a speaker - to the
extent to which there are things that that person cannot do with speech - he
right to free speech is to that extent unexercisable. It might then be though
that a right to free speech, which may be supposed to ensure that everyone's

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speech is protected, should ensure also that no one's speech is silenced. "If
a person's right provides a reason to stop others from interfering with her
speech, then, by the same token, everyone's right should provide a reason to
eradicate whatever agencies result in the disempowerment of anyone's
speech. Thus wherever an authority protects speech, it ought also to inter-
vene in whatever ways might ensure that no one's speech is silenced." But
this line of thought cannot be correct as it stands. A right to do something is
not the same as a right to the conditions in which the right could be exercised.
Judith Jarvis Thomson made the point on the side of a pro-choice position
on abortion.26 One can acknowledge that a foetus is human and that humans
have a right to life; one does not thereby secure for any human a right to
inhabit the body of another in order that life be maintained: A foetus's lack
of power might simply mean that any right it possessed could not be exer-
cised. Similarly, a speaker's lack of power might simply mean that her right
to free speech, in some of its aspects, was not a right that she could exercise.
The distinction used here - between (on the one hand) protecting activ-
ities which are the exercise of a right and (on the other) facilitating or
enabling those activities - is not always a sharp one (as we shall see below).
But it is a distinction familiar in the free speech literature, where it can seem
to have a ready application.27 It is one thing to say that where a public forum
exists in which people can be heard, access to the forum should not be pre-
vented and no one there should be allowed to stop others from speaking; but
it would be quite another thing to say that would-be speakers should be
helped to reach the forum, so that anyone who wants to speak there is owed
the fare for transport to it. In the presence of an acknowledged right to free
speech, a person's desire for a public audience is to be respected; but this does
not mean that a commitment is incurred on anyone's part actually to facili-
tate a would-be speaker to satisfy her desire.
"Hard luck" is what it seems we now have to say to disempowered
speakers: "No one denies you your right to free speech; but you must under-
stand that having this right may be to no avail."

SPEECH AS A NEGATIVE LIBERTY

The "hard luck" answer cannot be the end of the story. And we see that
there can be a different story when we notice that defenses of free speech as
a fundamental right rely on the idea of speech as a negative liberty - as some-
thing that a person has unless she is interfered with.28 To uphold everyone's
right to free speech, in the guise of a negative liberty, is to draw a veil over
disempowered speech. On the negative-liberty account, someone who is
unable to speak when and where she wants, through lack of financial resources,
say, is at least recognized as someone who cannot actually exercise her right.
But someone who is unable to speak because her language or her audience

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preclude that - because her situation is diagnosed in terms of ineffability or
inaudibility - is simply overlooked. The disempowered speaker's inability to
speak is not determined by a recognizable impediment which intervenes to
prevent her from speaking. The forces that have been at work to silence her
do not count as interference with her speech in any ordinary sense. And how-
ever real the phenomena of disempowerment might be, they could be safely
set aside in upholding negative liberties.
The idea of speech as a negative liberty can be connected with the idea
that we started from - of speech as "easy." What is certainly easy (usually at
least) is to produce meaningful things with the linguistic resources at one's
disposal. If freedom of speech really did mean freedom to move one's mouth
and make intelligible noises, then interference in a quite ordinary sense would
be the only thing that curbed it, and a sharp distinction between protecting
someone's speech (which her right to free speech demands) and enabling
her speech (which is not required by her right) might be made. If speaking
were merely a matter of producing meaningful sounds, then a person's being
able to be taken to say what she meant would be neither here nor there, and
it would be no wonder that disempowered speech should be left out of
account. On this negative-liberty conception of it, speech may be thought of
as a matter of locution, rather than of illocution: A person's power of speech
is seen as limited only by such things as a quiet voice or a natural reticence,
or by literal obstacles like gagging, drowning out, or arrest by the police.
To someone who has no truck with the idea of disempowered speech, a
distinction between locutionary and illocutionary conceptions of speech evi-
dently will not matter very much. Where communication is guaranteed by the
production of sounds, illocution is as "easy" as locution is. If everyone could
always do any illocutionary thing she wanted to automatically - just by com-
ing out with suitable words - it would make no actual difference to what
counted as free speech whether one conceived of speech in locutionary terms
or conceived of it in illocutionary terms. But whatever one thinks about dis-
empowered speech, a locutionary conception of speech is not what one needs
if one's concern is with free speech.29 At least it is not what one needs unless
one thinks that all of the value of free speech resides in people's ability to
make noises that are recognizable as speech. The value of free speech surely
resides in fact in people's ability to be recognized as doing what they mean
to be doing in making noises - to be communicating. Caring about free
speech is a matter of caring about people's powers of doing things with words,
including illocutionary, communicative things (and this seems to be true
whatever detailed account is offered of why free speech is valuable). But then
if there is a reason to protect locution - to stop people from literally inter-
fering with one another's speech - there must be a reason to be concerned
with cumulative processes of silencing of some groups' speech.

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 Of course it can be very unclear what might actually be done about
cumulative processes of silencing. And where the only thing that could be
done is to censor speech, probably nothing ought to be done. If one habitu-
ally thinks about free speech in terms of U.S. First Amendment doctrine, it
can seem as if the only practical question is, " Protect or censor ?" But we
must be allowed to think about questions of free speech in such a way that
the practical consequences of our reflections are not consequences exclu-
sively for officers of the law (or for their counterparts in institutions smaller
than the state). We can resist the assumption that any attempt to ensure that
speech is not silenced would count as a piece of censorship.30

FREE SPEECH AND EQUALITY

Free speech, or at any rate U.S. First Amendment doctrine, has come
under attack from many quarters in recent years.31 A conception of speech
as a negative liberty may be seen as the butt of some of the attacks.
There is a familiar argument against the idea that it is always proper to
promote negative liberties. The familiar argument sets liberalism's egalitar-
ian (left) wing against its libertarian (right) wing. The egalitarian claims that
the consequence of defending negative liberties in an unjust society is to sup-
port an indefensible status quo. Since the relatively powerful have opportu-
nities to bring pressures to bear against the powerless (opportunities which
the powerless lack), the protection of everyone's negative liberties, which is
a matter of letting everyone get on with it, as it were, is enabling for some
but not for others and is thus bound to reinforce the unequal status quo.32
Such an argument is ordinarily presented in an economic context, where it
may be aimed at showing that free market arrangements in an unequal soci-
ety ensure injustices: Those who have the good fortune to be in a position
actually to exercise their freedom in the market can promote their own wealth
at the expense of those whose so-called rights are unexercisable. A parallel
line of thought appears to be at work when it is said that we should not sup-
pose that, qua speakers, everyone is equal. Proponents of free speech have
meant us to think that "the discovery and spread of political truth"33 and the
treating of everyone with "equal respect"34 are served by protecting every-
one's speech equally. But in fact people do not start out as equal parties in
some great debate; upholding free speech works to the advantage of those
whose speech least needs protection.
The conclusion of this argument about free speech comes in a more rad-
ical version. In this version, so-called free speech is merely a rallying cry for
those who can bring their own verbal behavior under its head (and thus, in
the U.S.A., by the power of their rhetoric, under a constitutional head). This
radical version goes much further than the application to free speech of the
familiar argument against the promotion of negative liberties. Whereas the

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egalitarian about matters economic, who questions free markets, does not
dispute the value of (at least some of) what is traded in markets, the radical
conclusion in the case of free speech disputes that there is anything of value
here at all, save for what powerful interest groups might deem "free speech."
'Free speech' stands for whatever activities are engaged in as "free speech"
by those who succeed in defining the term; everyone else meanwhile loses
out from the protection of those activities. No conception of free speech is
available to anyone, according to this account, except for a conception of
something that might be at the service of her own political agenda (or of her
friends').
Well, such wholesale skepticism about free speech is not the inevitable
result of hostility to accounts of free speech as an individual right.35 Indeed,
if we are led to think about free speech by thinking about disempowered
speech, we shall want to keep such skepticism at bay. We can agree with the
skeptic that free speech is not properly circumscribed by those who conceive
it as a negative liberty: An understanding of disempowered speech reveals
the inadequacy of that conception. And we can agree with the skeptic that
there is no neutral vantage point outside of political debate from which
speech can be deemed free: Political thinking is introduced with the very
idea of a group whose speech might count as disempowered. But our argu-
ments can be brought against a tradition of free speech debate and need not
be pitted against the whole idea of free speech.36 They cannot be arguments
against the whole idea; for it is presumably by reference to an ideal of free
speech that we consider people unequal in their speech, and it is by reference
to such an ideal that we should find it regrettable if the speech of any group
were disempowered.
I have tried to show that there is space to be occupied, on questions of
free speech, between those who are content to allow the notion of free speech
to continue to be the property of the courts and those who urge us to banish
the notion. It is another task to fill in such space, but a task, again, to which
a social account of language use will be indispensable.

NOTES

1 . For very helpful comments on an earlier draft, I am grateful to Miranda Flicker and Sally
Haslanger.
2. Members of any social groups may suffer from disempowered speech as I intend this
term to be understood. Women, of course, are not the only such group. See note 7 for
more on the relevant notion of "group."
3. Taken, respectively, from dialogue quoted by Dale Spender, Man Made Language
(London: Routledge and Kegan Paul, 1980) and from Tillie Olsen, Silences (New York:
Delacorte Press, 1978).

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4. The general fact that "women's voices have gone unheard" is susceptible to a variety of
explanations. My concern here is not with the general fact but with cases where women's
failure to be heard seems to be a specifically linguistic phenomenon. Although they are
part of the larger picture, I set to one side the wide range of phenomena relating to con-
versational styles that studies in sociolinguistics, popularized by Deborah Tannen, may
explain by gender differences or by other differences of social class. See Suzanne
Romaine, Language in Society (Oxford: Oxford University Press, 1994), ch. 4.
My classification and diagnosis is different from Deborah Cameron's; but I am con-
cerned with some of the phenomena that were the topic of her Feminism and Linguistic
Theory (London: Macmillan, 1985), chs. 6-8. Cameron distinguished there between alien-
ation , which is experienced when the use of male language seems to falsify one's expe-
rience, and silencing , which is experienced in the failure of attempts to discuss one's
experience in an authentically female way.
5. My account might be seen as an attempt to reconcile (some) philosophical claims with
(some) feminist claims. It is susceptible to two kinds of challenge from feminists: (a)
from those who dispute the view of language that philosophers typically offer; (b) from
those who dispute the conception of gendered reality that I work with. I have confined
my responses to these challenges to the notes for the most part: on (a), see note 8 and my
response to a quotation from Cameron in the text below; on ( b ), see notes 6 and 7.
6. When women's situation in relation to language is described in these terms (i.e., in the
terms of someone who is not persuaded of women's general powerlessness), the picture
is one in which women have yet to catch up with men. This of course is a picture that we
have in general to resist. See Naomi Scheman, "Though This Be Method, yet There Is
Madness in It: Paranoia and Liberal Epistemology," in A Mind of One 's Own: Feminist
Essays on Reason and Objectivity , ed. Louise M. Antony and Charlotte Witt (Boulder,
Colo.: Westview Press 1993), 146-7. My own account conceives women as, as it were,
at the losing end of disempowerment; but that is not to adopt the picture.
7. Social relations define what "women" here denotes. And women as thus defined consti-
tute a group (see note 2). The how-it-is-possible account that I aim at prescinds from soci-
ological details; and the notion of "a group" which is presupposed by this account is very
fluid (so that the relation "is a member of' is both vague and apt to change with time). If
there were to be a sociological working out of the account in any particular case, then
"groups" would need to be defined by reference to social relations; but "categories" would
not need to be postulated once and for all. (The consequences of a piece of definition are
no more necessary than its grounds.) This means (I think and hope) that (/) the relevance
of the account can be more general than the abstractly conceived cases of its application
that I actually attend to (see note 4); (ii) although I work with a notion of gender, the
account is presented at such a level of abstraction that it is not undermined by those who
say that any use of "gender" has totalizing pretensions. (Given my limited and theoreti-
cal aim, it would make little odds to the argument if 'white women' or 'black women'
were substituted for 'women' throughout.) There are certainly good criticisms of some
accounts of "the oppression of women," criticisms that are grounded on the unacknowl-
edged exclusivity of those accounts. But for considerations against the sort of wholesale
attacks on totalizing that might be made against my own use of "gender" here, see Miranda
Flicker, "Knowledge as Construct: Theorizing the Role of Gender in Knowledge," in
Knowing the Difference: Feminist Perspectives in Epistemology , ed. Kathleen Lennon
and Margaret Whitford (London and New York: Routledge, 1994).
The difficulty of dissociating disadvantage from deficiency is surely part of the expla-
nation of the suggestion to be found in recent writing that we should abandon the cate-
gory of gender. Biological sex has been the assumed basis of gender's social construction;
and we are told by postfeminists that this is a "foundationalist" understanding of gender,
which constrains the very "subjects" that feminism (paradoxically now) had hoped to lib-
erate. See, e.g., Judith Butler, Gender Trouble: Feminism and the Subversion of Identity
(London: Routledge, 1990). This is not the place to try to justify my continuing willing-
ness to make use of the concept of gender (see note 5). But I note some points. First, if

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 we follow the account of gender worked out in Sally Haslanger, "On Being Objective
and Being Objectified," in A Mind of One's Own, then (a) there is no question of con-
ceiving as necessary the relations between the anatomical features of human beings that
enter an actual account of gender and the features of the social beings to whom we ascribe
gender-related properties; and ( b ) we can acknowledge the norms that feature in our
account of gender without taking their prescriptions to be justified (I have accepted that
this is difficult). Second, although the "groups" in my account of language use are to be
thought of by reference to gender, there is no need to think of the "maleness" of language
as a matter simply of its being gendered. See Genevieve Lloyd, "Maleness, Metaphor, and
the 'Crisis' of Reason," in A Mind of One's Own.
8. Deborah Cameron thinks that "western philosophy has been dominated by a telementa-
tional model of communication," in which ( a ) "speaker and hearer share a code," and ( b )
there is "a set of correspondences between forms and meanings," so that operating with
the correspondences might be thought of as "encoding" or "decoding" (op. cit.). In tak-
ing sides with "western philosophy" (!), I need to distinguish the two components of this
model, which I have labeled (a) and (b).
With regard to (a), part of present-day philosophical orthodoxy is the idea that the pri-
mary bearers of meaning are "mental representations," where these, usually, are under-
stood to be states of individuals' heads. This idea has only relatively recently become a
settled part of the orthodoxy, and it is driven by views in philosophy of mind. The idea
may lead to a conception of language as a code. But the idea is no part of the account I
shall offer; indeed it seems to me to render it impossible to give a properly social account
of language use.
With regard to ( b ), belief in "correspondences between forms and meanings" is what
Cameron thinks presents obstacles to taking a right view of possible political progress.
This belief (though usually differently expressed) seems also to be part of the orthodoxy.
This part is not relinquished in my own account; and I explain my disagreement with
Cameron over this below.

9. Spender, op. cit.

10. The expression "mother tongue" for native language records the fact that the role of par-
enting has fallen largely on women. ("Mother tongue," incidentally, provides a case where
it is not at all obvious whether we should use and recommend gender neutral language.)
1 1 . As speakers, our concern is with what we can communicate. And we do not need to
address what I have called "a radical view" to engage with this concern. I have deliber-
ately left the "radical view" rather vague. If it is a view which takes what is thinkable to
limit what may be true - on the grounds that only the sayable is thinkable and that only
the sayable can be true - then, provided the modal notions of "sayability" and "thinka-
bility" are properly understood, it does not seem to me to be a ludicrous view.
12. When Dale Spender presents language as a "trap," she seems sometimes to use a model in
which there is a "reality" out there which the concepts of language may latch onto. The facts
are, so to speak, waiting for discovery; but the human mind may be incapable of discover-
ing them, because it can confront them only after they have undergone a distorting (in
Spender's account, distinctively male) reconceptualization. The model is evidently no part
of what I called a "radical view" above, which I think sometimes informs Spender's work.
13.1 think of " a language" as something that is shared at a time by people who are readily intel-
ligible to one another at that time. But I realize that thinking of language in such terms
hardly gives a principle of individuation for languages, since "is readily intelligible to" is
not transitive and languages change. For present purposes, one might start from uses of
"the language we speak now": Any such use may specify a language - however many or
few others besides herself the user encompasses with "we," and however large or small a
tract of time the user encompasses with "now." One can then think, if one wants, of English,
say, as a language, constituted out of many overlapping languages.
There are many points in which a working out of the accounts I offer would require
something more precise, not only about "a language," but also about the membership of

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 groups who share a language vis-à-vis groups whose use of language is disempowered.
I have to hope that massive imprecision here is not an obstacle to achieving an account
of how the phenomena that concern me are possible.
14. This conception of a theory of meaning has been defended by Donald Davidson in a num-
ber of papers reprinted in his Enquiries into Truth and Interpretation (Oxford: Clarendon
Press, 1980). Davidson's own claim is that a theory of truth can serve as a theory of mean-
ing. The correctness (as it seems to me) of that claim can cast light on the "radical view"
about language, thought, and reality mentioned above. But to explore the radical view
would raise questions in metaphysics, which I must set to one side. I go in for extreme
simplification here. First, I have glided very quickly over the compositional character of
a theory of meaning. In being compositional, a theory can reveal how a language user's
expressive resources at the level of sentences are unlimited in a way that her stock of indi-
vidual words is not unlimited. Compositionality thus has epistemological importance. It
also has importance in being a feature of theories by reference to which one may account,
e.g., for how derogatory terms could contaminate even sentences in which they do not
occur (see note 20 below). Second, the schema (M) as I have presented it makes no
allowance either for indexicals or for non-indicatives. I should need to appeal to a vast
literature in the philosophy of language to make out the claim that the errors introduced
by simplification can be remedied.
15. Cameron, op. cit., 140.
16. See note 13.

17. Cameron's other objections to a telementational model remain, however. See note 8.
Cameron speaks of "sparing the analyst." In my view the analyst is spared. For I do
not think that any light would be cast on the matters of concern here by the actual con-
struction of theories of meaning. One may distinguish an analyst in Cameron's sense
from (as I shall say) a theorist. An analyst is someone who actually puts together a the-
ory of meaning, say for the particular language which I and others speak now; whereas
a theorist is someone who contemplates what sorts of account of language and its use can
be given. I believe that we can better understand what it is (say) for language to change
if we theorize about what it is to use language. Such theorizing requires a conception of
a theory of meaning; but it does not require any analyst who actually constructs a detailed
theory.
18. The view of actions and their individuation that I am subscribing to here is often put by
saying that a single action can have many descriptions. I myself capture the idea that
actions have various descriptions by recognizing that there can be various acts ( = things
someone does) when there is a single action. Many philosophers use both "action" and
"act" ambiguously; but I confine "actions" to particulars and "acts" to things we do (a use
which preserves its sense in ordinary English). For the application of theories of action
to accounts of speech acts, see my "Things Done with Words," in Human Agency:
Language, Duty, and Value , ed. Jonathan Dancy, J. M. E. Moravcsik, and C. C. W. Taylor
(Stanford, Calif.: Stanford University Press, 1988).
19. J. L. Austin, How To Do Things with Words (Oxford: Oxford University Press, 1960).
20. I have developed this account of illocution in my "Illocution and Its Significance," in
Foundations of Speech Act Theory , ed. Savas L. Tsohatzidis (London: Routledge, 1995).
That paper makes connections with John R. Searle, Speech Acts: An Essay in the
Philosophy of Language (London: Cambridge University Press, 1969). I am both indebted
to an idea in Searle in the account of illocution I develop and in disagreement with Searle
about the account of illocution one should give.
21. "Strictly and literally says - " is often used to play the role to which I have put "put into
the open the thought that - ," i.e., to describe a speech action without going beyond the
locutionary act which the total speech act on that occasion involved. I intend the notion
of "saying" which enters into the description of an ineffable thought to be the ordinary
"say" which we use in reporting one another's speech. I rely on the fact that acts of say-
ing, like acts of so-called strict-and-literal-saying, are parts of total speech acts.

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22. I agree with much of the account of language in Alessandra Tanesini, "Whose Language?"
in Knowing the Difference. But I should register one disagreement here. Tanesini's empha-
sis is on the inferential-justificatory role of concepts - rightly as it seems to me, because
one can see social arrangements, etc., as partial determinants of those roles. In Tanesini's
terms, my suggestion here is that anything our imagined would-be speaker might say
would be "wrong" from the point of view of its role. But Tanesini places inferential-jus-
tificatory role in opposition to truth-conditions, whereas the problem of ineffability, as I
see it, shows up vividly when we equate them. (I want to be able to say that the ineffable
thing - if per impossibile said - could be true.)
23. Michael Dummett gave an example in which a language is nonconservatively extended
with the addition of a pejorative term, in his Frege: Philosophy of Language (London:
Duckworth, 1973). In the example, the term is 'Boche': "The conditions for applying the
term to someone is that he is of German nationality; the consequences of its application
are that he is barbarous and more prone to cruelty than other Europeans" (454). Notice
that if the situation with English were as it is described in Dummett's example, then a
refusal to use the term 'Boche' would not protect one from its unwanted implications; for,
in the example, being German, which is a property that one is prepared to attribute, is suf-
ficient for being Boche.
Without thinking that any actual cases are quite as simple as Dummett's example, we
can see how derogatory terms (like 'Boche') could contaminate "neutral" ones (like
'German'). And we can see how there could be a language which had no nonderogatory
term (as we saw it) for, say, the members of some group. A situation in which there are
no nonderogatory terms is contingent on the particular state of the language (which may
embody such evidently avoidable rules as "You can infer someone's Bocheness from his
being German"). But then if the language had been different, in one easily intelligible
respect, there would have been something different to say - something that would be
actually ineffable but preferable to say.
24. The words were first made famous by Judge Wild, summing up for the jury (as reported
in The Sunday Times , 12 December 1982). Judge Dean, also summing up, for a different
trial, in 1990 said, "As the gentlemen on the jury will understand, when a woman says
'No' she does not always mean it. Men can't turn their emotions on and off like a tap like
some women can" ( The Times , 10 June 1993). (This quotation is remarkable for much
more than its repetition of the notorious words.)
25. My use of "silencing" covers a broader range of phenomena than Cameron's (see note
5), but it by no means covers all examples where there is failure "to be heard" (see note
4), nor all cases where the metaphor of "silencing" has seemed apt.
26. Judith Jarvis Thomson, "A Defense of Abortion," Philosophy and Public Affairs 1 (1971):
47-66.

27. See, e.g., Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge:
Cambridge University Press, 1982), ch. 8.
28. The idea of negative liberty is from Isaiah Berlin. For a defense of free speech based upon
the idea, see Ronald Dworkin, "Liberty and Pornography," The New York Review of Books,
15 August 1991. A very similar paper of his, with the title "Two Concepts of Liberty," is in
Isaiah Berlin: A Celebration, ed. Edna and Avishai Margalit (London: Hogarth Press, 1991).
29. In "Speech Acts and Pornography" ( Women's Philosophy Review 10 [1993]: 38-45;
reprinted with a postscript in The Problem of Pornography, ed. Susan Dwyer [Montreal:
Wadwsorth, 1995]), I argue that Dworkin is committed, by the argument of his "Liberty
and Pornography," to such a conception - a conception of speech, that is to say, which
prevents one from recognizing phenomena of disempowered speech. See further note 34.
30. Attitudes toward hate speech, for instance, will be affected by acknowledging that not all
questions about free speech are questions about whether to "censor."
3 1 . For one thing, it is a victim of the "rage against reason." But there are argued cases against
the valorization of free speech. See, e.g., Catharine MacKinnon, Only Words (Cambridge,
Mass.: Harvard University Press, 1993) and Stanley Fish, "There's No Such Thing as

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 Free Speech, and It's a Good Thing, Too," in his There 's No Such Thing as Free Speech
(Oxford: Oxford University Press, 1994). The skeptical view I introduce below is Fish's.
32. Criticism of this kind - of defenses of negative liberties - can equally be brought to bear
against many uses of a distinction between protecting and enabling in the case of rights
(see above). In circumstances where social arrangements ensure that, as things are, the
members of some group cannot exercise their rights, it would require intervention -
enabling measures - to allow for their exercise. But in different imaginable circumstances,
members of the group could exercise their rights without any steps being taken to enable
their exercise, and only protection of rights might be called for. Thus the protecting-
enabling distinction is made against a background of supposedly "normal circumstances."
Those who find the status quo indefensible, believing for instance that actually "normal
circumstances" are unjustifiably inegalitarian, will not be impressed by invocations of a
distinction between protecting and enabling measures.
33. Brandeis in Whitney v. California (1927). "The indispensable means," in Brandeis's judg-
ment, "to the discovery and spread of political truth" are "freedom to think as you will
and speak as you think." Where there is ineffability, such means are curtailed. It is clear,
then, that even within First Amendment doctrine, it is not nondisempowered speech whose
instrumental value has been upheld.
34. A defense of free speech as promoting equal respect is in Ronald Dworkin, "The Coming
Battles Over Free Speech," The New York Review of Books, 1 1 June 1992. But notice that
Dworkin's treatment under the head of "equal respect" is quite different from that urged
by the egalitarian of my text. What Dworkin's principle of "equal respect" requires is that
one treat everyone as a morally autonomous being. By resting his defense on moral auton-
omy, Dworkin conceives the value of free speech negatively and individualistically -
negatively, because he takes account only of the disvalue of stopping speech, and
individualistically, because the disvalue in question is a potential harm only to the would-
be speaker. I believe that a good egalitarian defense, by contrast, will see the virtues of
free speech as positive and social.
When one sees Dworkin's defense under the head of equality for what it is, it is eas-
ier to reconcile what can appear to be contradictions in his own position. In his 1991 arti-
cle, "Liberty and Pornography," considerations of freedom were supposed to win the day
for free speech: Dworkin said there that Catharine MacKinnon's argument from equal-
ity was based on a confusion, and he proclaimed that "freedom is not equality." But in
"Women and Pornography," The New York Review of Books, 21 October 1993, Dworkin
tells us that a good defense of free speech is founded in equality. (Dworkin's unusual
understanding of an egalitarian defense renders him consistent. But it does not explain
why, in 1993, an argument of MacKinnon's, which he had purported to diagnose as con-
fused in 1991, is called a "new" argument.)
35. By "individual right" I mean the conception of free speech as a right which informed the
arguments above (and which I think informs much First Amendment doctrine). The egali-
tarian-libertarian divide, which I employed to characterize the argument against the pro-
motion of negative liberties, is, in the practice of U.S. politics, a divide between those who
style themselves defenders of civil rights and those who style themselves defenders of civil
liberties. This terminology makes sense if civil rights are differently conceived from indi-
vidual rights, and if civil liberties are conceived as negative liberties.
36. We can distinguish between what we should best mean by 'free speech' (on the one hand)
and what it has seemed proper to use the U.S. Constitution to protect (on the other).
Outside the U.S.A., the distinction is easily made!

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