Tuesday, November 28, 2017

The Problem with Hate Speech Laws

Via John S Quarterman on Flickr

Many jurisdictions in Europe have laws that criminalise hate speech and there is no shortage of campaigners requesting such prohibitions. The debate is particularly acute on college campuses, where the protection of minority students from such hate speech is increasingly being viewed as central to the university’s mission to provide a ‘safe space’ for education.

That’s not to say that hate speech prohibitions have proved uncontroversial. On the contrary, they are among the most controversial prohibitions that are discussed today. Some people feel that it is difficult to adequately define hate speech, that it is hard to explain why hate speech is harmful (if it is harmful), and that prohibiting it conflicts with other important values such as the value of free speech.

Several philosophers have tried to engage with these controversies. Steven Heyman and Jeremy Waldron are among the most prominent. They have provided sophisticated philosophical justifications for prohibitions on hate speech. They have done so by arguing that hate speech undermines the liberal democratic commitment to recognising human dignity and equality. In a recent(ish) article, Robert Mark Simpson has argued that their justifications are flawed.

In this post, I want to look at Simpson’s argument. I do so partly because it is interesting in its own right and partly because it reveals certain problems with other attempts to outlaw/prohibit behaviour that is linked to the systematic oppression of minorities.

1. The Heyman-Waldron Argument for Hate Speech
We’ll need to start by defining ‘hate speech’. After all, we cannot understand the potential justifications for its prohibition, without understanding what it is. Here’s the definition favoured by Simpson (which comes from earlier work by Corlett and Francescotti):

Hate Speech: Is any symbolic, communicative action which wilfully expresses intense antipathy towards some group or towards an individual on the basis of membership in some group.

This is quite a general definition. Examples might make it more concrete. Using a racial slurs (e.g. ‘kike’, ‘gypsy’) to describe someone who belongs to a particular racial or ethnic minority might count as hate speech according to this definition. But it is hard to be overly concrete on this matter. It is all very context-dependent. The specific forms that hate speech takes will vary, to some extent, from country to country and culture to culture. It will also vary depending on the pragmatic context in which the speech is uttered.

It seems plausible to suppose that hate speech, so defined, can be harmful. But the harms it entails could be quite variable. It could cause harm to a specific individual in the form of psychological trauma or upset. But lots of speech, some of it not falling within the definition of hate speech, could cause such harm. For example, describing someone’s work as ‘incompetent’ or ‘abominable’ could cause a great deal of psychological upset, but it would not count as hate speech, nor would we think it requires special legal prohibition.

For this reason, the modern tendency is not to think about the harm of hate speech in terms of direct harms to specific individuals, but rather as a type of collective institutional harm — something that contributes to a social climate or set of institutions in which members of minority groups continue to be oppressed. This makes the harm of hate speech more abstract and indirect.

The key feature of Heyman and Waldron’s work has been to flesh out this ‘institutional harm’ view of hate speech in more detail. There are subtle differences between their arguments, but they are grounded in the same basic idea. They argue that hate speech is problematic because of the signals it sends to members of minority groups concerning their moral and legal status within a given community.

They both argue that modern liberal democratic states are founded upon a principle of moral equality. This principle holds that all people, regardless of race, religion, ethnicity, gender (etc) are moral equals. No one individual has a superior moral or legal status to another. And they both argue that the problem with hate speech is that it tells members of minority groups that they do not share in this equal moral status. Heyman’s version of the argument focuses on fundamental rights and how language signals recognition of the ‘other’ as a rights-bearer. Waldron focuses more on the gap between de jure equality and de facto equality. Many liberal democratic legal systems include provisions that formally recognise the equality of all persons, but then fail to live up to this ideal in practice. He thinks the problem with hate speech is that it makes members of minority groups less confident in the official commitments of the system. They no longer feel that the community is a safe space for them.

But how exactly does hate speech do this? It seems implausible to suppose that one particular instance of hate speech can shake the foundations of the legal order in the manner envisaged by Heyman and Waldron, or undermine an individual’s confidence in a social system to such an extent that they no longer feel safe. One neo-Nazi does not make for a system of oppression. Simpson suggests that an analogy between hate speech and environmental pollution can explain the idea:

The Pollution Analogy: “[T]hose who tend to hold this view of hate speech tend to think of individual acts of hate speech operating in a way that is analogous to pollution. Individual acts of pollution can inflict discrete harm on specifiable victims. Many acts of pollution don’t inflict harm in that way. However, even when there are no specifiable victims, all acts of pollution have a degrading impact on environmental systems whose degradation beyond a certain point does inflict harms on individuals….Analogously, acts of hate speech do not always directly harm specifiable individuals, but they all contribute, so one may argue, to the creation and sustenance of a social climate in which harms and disadvantages redound to members of vulnerable social classes.” 
(Simpson 2013)

That’s the core of the Heyman-Waldron line of argument. Hate speech should be prohibited because it contributes to a climate of intimidation that cumulatively degrades and subordinates particular minority groups.

2. The Injustice of Hate Speech Prohibitions
So what’s wrong with this argument? It sounds superficially plausible, doesn’t it? Why should we reject it? Simpson’s counterargument is very straightforward. He agrees that the institutional harm highlighted by Heyman and Waldron is superficially plausible. In fact, he thinks it may even be true that individual acts of hate speech cumulatively result in a polluted social climate. The problem is that hate speech laws are typically targeted at the individual acts, not the cumulative result. Unless it can be shown that the individual act meaningfully contributes to the institutional harm, imposing a sanction on the individual act is not just.

Here’s the argument in more formal terms (this is my reconstruction):

  • (1) Hate speech laws target individual behaviour (i.e. individual acts of hate speech)
  • (2) If the harm of hate speech is institutional/structural, hate speech laws can only be just if individual acts contribute meaningfully to that institutional/structural harm.
  • (3) The harm of hate speech is institutional/structural (conclusion of the Heyman-Waldron argument)
  • (4) Individual acts of hate speech do not meaningfully contribute to that institutional/structural harm.
  • (5) Therefore, hate speech laws are unjust.

The controversial premises here are (2) and (4). Premise (2) is working off an intuitive theory of causal responsibility and just punishment. The idea underlying it is that an individual subject S can only be rightly held responsible for a harm X, if their behaviour was a significant or primary causal factor in X. This is a theory of just punishment that applies in many areas of law, in particular criminal and civil law, where it has to be shown that ‘but for’ an individual’s behaviour a harmful result would not have occurred. You could certainly challenge this intuitive theory of punishment. People already do so in the context of harms caused by complex organisations or autonomous technology, but it is still the core of our intuitive theory of just punishment.

Premise (4) is the one that Simpson dedicates most of his time to. He thinks it is fairly obviously true that an individual act of hate speech cannot, by itself, create a system of social exclusion, particularly when the legal system includes provisions that formally protect equal status. He thinks that to assert the contrary view is to assign too much importance to the actions of outlier individuals. But he notes that some participants in the hate speech debate say that their arguments do not depend on making complex causal claims of this sort. Waldron is a good example. His argument is that the mere presence of hate speech — any hate speech — is enough to degrade the social environment. He is not saying that hate speech is the root cause of systematic inequality. Furthermore, he doesn’t focus on punishment in his justification of hate speech laws. He focuses on the expressive and deterrent functions of the law instead. He thinks, contra free speech advocates like JS Mill, that the government should interfere in the ‘marketplace of ideas’ because this could have a positive long-term effect on the social environment.

Simpson argues that this creates a problem for Waldron. On the one hand, he is explicating the harm of hate speech in terms of its mere presence and visibility in society. On the other hand, he is defending hate speech laws in terms of their long-term, consequential impact on social order. The former claim tries to sidestep complex causal questions; the latter engages with them directly. This leads to a tension in the argument. The only way for Waldron to justify the claim concerning the consequential impact of hate speech laws on society is to make an assumption about the meaningful causal role of hate speech in creating such an environment. This buts up against the view that Simpson defends in premise (4).

Simpson goes on to point out that it is, in any event, unlikely that the mere visibility or presence of hate speech will undermine an individual’s confidence in a social order that otherwise protects their equal status. The hate speech has to have some credibility behind it, i.e. the individual will have to believe that the hateful views will be taken up by other players and actors in the social system. This, in turn, gets us into debates about the causal links between individual acts and collective outcomes.

3. Conclusion
That’s basically it (I told you this would be brief). Heyman and Waldron argue that the harm of hate speech lies in its contribution to a social order in which minorities are excluded from equal moral status. They both then seek to justify hate speech laws in terms of their ability to mitigate this exclusionary effect. The problem with both arguments is that the use of an individualised tool — the hate speech law — to solve a problem that is not the causal product of any one individual’s actions. This does not sit well with an intuitive theory of just punishment.

There are, of course, some solutions to this problem. For one thing, Simpson’s objection is less impressive when we are dealing with hate speech emanating from individuals with important social influence or power. It’s more plausible to claim that their particular actions will have a meaningful effect on a social order.

Furthermore, it is not as if the law (or legal theorists) have never dealt with this basic problem that Simpson identifies before. There are areas of tort law — e.g. toxic torts — where it can be difficult to prove that particular actions were the ‘but for’ cause of a harmful outcome. An example might be litigation concerning exposure to asbestos and the disease mesothelioma. A single exposure can be enough to cause the disease but this makes it difficult to prove that a particular employer is responsible for the harmful exposure (the same problem arises when the disease is a cumulative result of many exposures that are attributable to different causes). Nevertheless, courts have been willing to assign legal responsibility on the basis of alternative theories of causation and public policy considerations. Similarly, there is an active debate at the moment about legal responsibility for actions that are caused through technological systems (e.g. robots). Philosophers like Luciano Floridi, for example, favour a theory of distributed causal responsibility, according to which, every node with a causal system that is responsible for some outcome bears some of the blame for that outcome. One could imagine similar theories being adopted in the debate about hate speech.

This would mean making a break with our intuitive theory of just punishment, and further assessing the consequences of doing that. Unfortunately, such an assessment lies beyond the scope of this blogpost.

Monday, November 27, 2017

Robot Sex in the Media

Myself and Neil McArthur's edited book Robot Sex: Social and Ethical Implications (MIT Press 2017) has been featured in a number of recent media pieces. Although this topic is usually treated with excessive hyperbole by the media, we have managed to secure some pretty good, substantive engagement with the ideas in the book in some outlets (partly because we wrote some of it). I'm collecting links to these pieces here. If you know of any other coverage, please let me know.

[Also if you'd like to buy or review the book on Amazon, I wouldn't be displeased...]


  • 'Kunstigt Klimaks' (roughly: 'Artificial Orgasm') - Weekendavisen, 15th September 2017 by Anne Jensen Sand. (This is in Danish so I have no idea what it says)

  • 'Falling in Love with Sexbots' - by Brian Appleyard in The Sunday Times News Review, 22nd October 2017 (sadly behind a subscription wall -- though you can get free access by signing up)

Audio and Video Interviews

A Dilemma for Anti-Porn Feminism

Feminism is a complex school of thought. Indeed, it’s not really a school of thought at all. It’s many different schools of thought, often uncomfortably lumped together under a single label. Within these schools of thought, there are some that are deeply opposed to mainstream, hardcore pornography. The radical feminist school — led by the likes of Catharine MacKinnon and Andrea Dworkin — are the obvious exemplars of this anti-porn point of view. But there are also more liberal feminists who have defended variations of it, such as Rae Langton and Jennifer Hornsby. Are they right to do so?

Alex Davies has recently published a fascinating and well-researched article arguing that they are not. Focusing on the anti-porn arguments of MacKinnon, he claims that liberal feminists cannot consistently embrace a view that prioritises female autonomy and views pornography as something that necessarily silences and subordinates women. The reason for this is that there are female pornographers, i.e. women who seem to freely and autonomously choose to produce and distribute pornography that falls within the remit of that to which MacKinnon et al are opposed.

In this post I want to provide a quick overview and analysis of Davies’s argument. I tend to agree with his reasoning and explaining why reveals something pretty important about the political and ethical aspects of pornography. That said, my overview won’t be a substitute for reading the full thing. Anyone with an interest in the debate about the ethics of pornographic representations should do so.

1. The Structure of Davies’s Argument

To understand Davies’s central argument, we first need to take a step back in time to consider MacKinnon’s case against pornography. That case was premised on three things: (i) a narrow definition and understanding of ‘pornography’; (ii) a particular conception of the harm constituted by that narrowly-defined form of pornography; and (iii) a unique legal remedy for this harm.

Let’s start with the narrow definition of pornography. Anyone who campaigns against pornography faces an obvious definitional problem: you don’t want the campaign to be over-inclusive. Many fictional and pictographic representations are sexually provocative and arousing. Sometimes they are presented as ‘serious art’; sometimes they actually are serious art. MacKinnon was conscious of this and tried to target her campaign at a specific subset of sexually provocative material. She offered an elaborate definition of this type of pornography (which on previous occasions I have called ‘Mac-Porn’ and will do so again here). Mac-Porn is anything that involves the ‘sexually explicit subordination of women through words and pictures’, and consists in imagery or words that dehumanise or objectify women, or depict them as enjoying rape or sexual humiliation, or reduces them to body parts, or otherwise brutalises and degrades them. Furthermore, although it is initially defined as requiring the depiction of women, it is subsequently expanded to cover ‘the use of men, children or transsexuals in the place of women’. I’ve tried to illustrate this in full detail in the image below, drawing specifically on the lengthier characterisations in the work of MacKinnon.

Note that Mac-Porn, as defined, may avoid the problem of over-inclusivity at the expense of under-inclusivity and value-ladenness. Nevertheless, it is what we will be working with for the remainder of the post.

The second premise of MacKinnon’s case against pornography focuses on the harm constituted by porn. Note how I say ‘constituted by’ and not ‘caused by’. MacKinnon studiously avoids making claims about the empirical consequences of exposure to porn. Instead, she argues that pornography itself constitutes a kind of harm to women. Specifically, she thinks that the production and distribution of porn is itself an act that subordinates and silences women. This helps her to sidestep defences of pornography that use the principle of free speech. If you’re really interested, I’ve examined some ways to make sense of this argument in the past. We don’t need to dwell on them here. We just need to accept it, for the sake of argument, and move on.

Finally, MacKinnon’s case against pornography advocates a particular legal remedy to the problem. MacKinnon does not favour government-run censorship as this would not empower women (although she did, controversially, appear to support censorship in the R v. Butler case). She favours the creation of civil rights ordinances that would enable women to sue producers and distributors of pornography for the harm caused to them by porn. This would be a legal option open to all women since the purported harm is not done to specific, individual women, but rather to women as a collective.

That’s everything we need to understand Davies’s argument. His argument works like this (this is my reconstruction of the reasoning, not something that appears in the paper):

  • (1) We should not silence women (assumption, presumed by MacKinnon’s argument).
  • (2) There are female pornographers, i.e. women who produce and distribute pornographic material that falls within the definition of Mac-Porn.
  • (3) If we introduced a legal remedy like MacKinnon’s anti-porn civil rights ordinances, female pornographers would be silenced.
  • (4) Therefore, we should not introduce a legal remedy like MacKinnon’s anti-porn civil rights ordinances.

I should clarify that Davies doesn’t fully endorse (4) in his article. His aims are more modest than that. He merely wants to highlight the tension or dilemma posed by accepting that we should not silence women while at the same time acknowledging the existence of female pornographers. He points out that this neglected tension leads many anti-porn feminists to either reject or deny the existence of female pornographers. He claims that this is not a credible position, at least not if you are a liberal feminist. If you are a radical like MacKinnon, it may be possible to deny or overlook the existence of female pornographers, but only if you accept that all women who produce pornography are victims of false consciousness. Let’s see how he fleshes this out.

2. Do female pornographers exist?
The existence of female pornographers should be relatively uncontroversial. There clearly are women who produce, direct, design and distribute pornographic material. If you doubt this, I encourage you to read The Feminist Porn Book, which contains over two dozen essays from prominent female/feminist pornographers. These are not just women who produce and distribute porn; they are women who produce and distribute porn that they are proud of and that they feel lives up to the ideals of feminism. (I should clarify that not all the contributions are from women, though the vast majority are; some are from men and others are from transgender or genderqueer individuals — I sidestep that important detail here because the MacKinnon-style argument seems to focus primarily on cisgender women).

This fact alone might be enough to support premise (2) of Davies’s argument. But, of course, the position is more complicated than that. It might be the case that all the pornography produced by these female pornographers is of a softer, more genteel nature than that envisaged by MacKinnon in her definition of Mac-Porn. For example, consider the work of the Candida Royalle. She was one of the pioneers of female-made pornography in the 1980s, and her filmography favoured relatively softcore content. She was a female pornographer, for sure, but she did not make Mac-Porn. Consequently, her existence does not support premise (2) of Davies’s argument.

But not all female-created pornography is of this ‘softer’ type. Some of it is quite hardcore and involves the eroticisation of women in submissive and objectified positions. Davies’s presents a few examples of this in his article. First, he reviews back issues of the ground-breaking lesbian-porn magazine On Our Backs, and describes how they:

[D]epicted women being penetrated by objects, women on display, and fantasies that involved the use of coercion, humiliation, and violence. They also depicted fantasies that involved none of these things. The contents were designed to appeal to an audience of diverse sexual tastes and curiosities. 
(Davies 2017)

He also looks at the female producers of pornographic films that came after Candida Royalle and notes how many of them have produced films that eroticise domination and submission, with different motivations and intentions:

[These female pornographers] include: Nina Hartley, Jacky St. James, Erika Lust, Tristan Taormino, Courtney Trouble, and Madison Young. Each has produced material that eroticizes doominance/submission. They have various motivations for producing the material that they do. Hartley and Taormino believe that sexually explicit material can function as good sex education. Taormino also believes that well-designed sexually explicit material can be used to expose what she calls the ‘fallacies of gender’; by which she means the gender binary and the stereotypes common in male-oriented pornography. Trouble aims to produce material that shows people like her (larger, queer women) as desirable. Young wants to produce depictions of authentic desire. Lust wants to produce material that reflects her sexuality better than male-oriented. 
(Davies 2017)

Davies points out that not only do women produce this material; they also seem to desire access to it and value it quite highly. He cites a focus group study done by Rachel Liberman, which suggests that feminist pornography of this sort was held in high regard because it provided more authentic insights into female sexual subjectivity.

I could go on. Davies provides many more examples of female pornographers in his article and his engagement with these examples is one of the real strengths of his piece. Hopefully, this handful suffices to make the critical point: that premise (2) seems to be robustly well-supported by empirical, real-world examples of female pornographers.

This then leads to the dilemma at the heart of Davies’s argument. If we were to accept the MacKinnon style argument, we would have to assume that (a) all these female pornographers are silencing and subordinating women through their work and (b) that they ought to be subject to legal sanction for doing do. This seems strange given that this would, in effect, silence this particular group of women.

3. Resolving the dilemma?
Is there any way out of this dilemma? Davies suggests that the most popular route out of the dilemma is to simply deny or overlook the existence of female pornographers, and he spends a good deal of time in his article highlighting how prominent liberal anti-porn feminists do this, either implicitly or explicitly. But let’s say you don’t deny their existence. Is there anyway to then maintain the opposition to pornography?

One possibility would be to view the women in question as victims. They need to be saved from the system because they are being oppressed by it. The problem with this is that none of female pornographers discussed above (or elsewhere in Davies article) see themselves in this light. Oftentimes their view is the opposite. They think they are being empowered through the production and distribution of porn. They, and the people who consume their content, view the pornographic material as something that makes a positive contribution to their sex lives. Why should we deny their testimony?

Davies argues that only MacKinnon can maintain a consistent position on this. Because of her radicalist leanings, she views all (or virtually all) women as victims of a patriarchal false consciousness when it comes to sex. She thinks that men set the conditions for sexuality and that we cannot trust women’s testimony concerning their sexual preferences and desires until we have achieved meaningful gender equality. Indeed, on one occasion, MacKinnon even went so far as to suggest that female pornographers were like abuse victims defending their abusers (her exact words are cited in Davies’s article).

This is a pretty extreme view, one that is not shared by the typical liberal feminist, and one that leads to certain conceptual difficulties. After all, MacKinnon must believe that at least some women can see through the veil of false consciousness that has been foisted upon them by the patriarchy. I assume, for example, that she sees herself as someone who has managed to do this. But why assume that she is the only one in this privileged position? Why not trust the voices of the female pornographers?

4. Conclusion
This is why I think Davies’s argument is important and interesting. It highlights two uncomfortable truths about our attitudes towards sex and sexuality.

First, it highlights how we often have a ‘standard model’ for normative sex/sexuality in our minds. This model affects the kinds of sex and sexual self-expression that we deem appropriate or acceptable (for women in particular). Classically, this model consisted of heterosexual sexual intercourse, within marriage. We’ve expanded the standard model since then, but there are still forms of sex that trouble many of us because they lie outside the boundary lines (e.g. BDSM, non-monogamous sex, etc.). This is why people often assume that women could not authentically desire these forms of sex, or seek to represent them in words and images.

Second, the article highlights the importance of taking individual testimony seriously, even when it conflicts with our standard model. This is something that is particularly pertinent at the moment as more and more women come forward to openly share their stories of sexual harassment and assault. But just as we are now taking this testimonial evidence more seriously, perhaps we should also take the testimonial evidence of female pornographers more seriously? If you read someone like Tristan Taormino or Nina Hartley, it’s very hard to believe that they are victims of false consciousness. They seem to have thought this through and are fully aware of what they are doing and the conditions under which they are doing it. They are not rose-tinted idealists, but nor are they oppressed victims. What they say may make us uncomfortable (given the implied commitment to the standard model), but perhaps we should take it at face value?

Thursday, November 23, 2017

Episode #32 - Carter and Palermos on Extended Cognition and Extended Assault


In this episode I talk to Adam Carter and Orestis Palermos. Adam is a Lecturer in Philosophy at the University of Glasgow. His primary research interests lie in the area of epistemology, but he has increasingly explored connections between epistemology and other disciplines, including bioethics (especially human enhancement); the philosophy of mind and cognitive science. Orestis is a lecturer in philosophy at Cardiff University. His research focuses on how ‘philosophy can impact the engineering of emerging technologies and socio-technical systems.’ We talk about the theory of the extended mind and the idea of extended assault.

You can download the episode here or listen to it below. You can also subscribe on iTunes and Stitcher (RSS feed).

Show Notes

  • 0:00 - Introduction
  • 0:55 - The story of David Leon Riley and the phone search
  • 3:15 - What is extended cognition?
  • 7:35 - Extended cognition vs extended mind - exploring the difference
  • 13:35 - What counts as part of an extended cognitive system? The role of dynamical systems theory
  • 19:14 - Does cognitive extension come in degrees?
  • 24:18 - Are smartphones part of our extended cognitive systems?
  • 28:10 - Are we over-extended? Do we rely too much on technology?
  • 35:02 - Making the case for extended personal assault
  • 39:50 - Does functional disability make a difference to the case for extended assault?
  • 43:35 - Does pain matter to our understanding of assault?
  • 49:50 - Does the replaceability/fungibility of technology undermine the case for extended assault?
  • 55:00 - Online hacking as a form of personal assault
  • 59:30 - The ethics of extended expertise
  • 1:02:58 - Distributed cognition and distributed blame

Relevant Links


Wednesday, November 1, 2017

Video Interview about Robot Sex: Social and Ethical Implications

Through the wonders of the modern technology, myself and Adam Ford sat down for an extended video chat about the new book Robot Sex: Social and Ethical Implications (MIT Press, 2017). You can watch the full thing above or on youtube. Topics covered include:

  • Why did I start writing about this topic?
  • Sex work and technological unemployment
  • Can you have sex with a robot?
  • Is there a case to be made for the use of sex robots?
  • The Campaign Against Sex Robots
  • The possibility of valuable, loving relationships between humans and robots
  • Sexbots as a social experiment

Be sure to check out Adam's other videos and support his work.