Should we legislate against cat-calling: I say yes

But the suggestion in a recent post by Jill at Feministe is "no". She doesn't give reasons why not in the post, but in the comments thread her reasoning is, in part, that "the problem with trying to ban street harassment is that it’s (a) a First Amendment issue, and (b) a practicality issue".

She also suggests that since we're "talking about things that happen in public spaces, like on the street" there should not be any legislative action, whereas "in private spaces — at your office — or in places like schools, there are different rules, and there should be recourse for harassment."

I agree that the personal is political. But that doesn't mean that the public ceases to be political. The point of politicizing the personal, the private sphere if you like, wasn't in order to drain politics out of the public sphere. If harassment and sexist intimidation should be outlawed anywhere, I would have thought that the public sphere would have been the first place place to start. Public space is supposed to be that space in which we should all be able to comfortably appear as equals, free from domination, intimidation or shame.

So, I disagree rather sharply with Jill's suggestion that because the street is public, it should therefore be a space in which harassment is protected. I would have wanted to draw precisely the opposite inference.

Also, I'm perplexed most of the time when it is suggested that something is a "free speech issue". That seems to me, often, to be a way of avoiding talking about the politics of the situation. To be sure, freedom of speech --the idea that the State shouldn't coercively prevent people from making their reasoned views known in public spaces-- is worth fighting for.

But rather than too quickly assuming that such free speech is a good thing and leaving it at that, I think it's worth asking why we care about protecting the right to free speech discussed above.

There are many reasons one could give here, but the most convincing one for me is that we want the public sphere to be one of openness, free from intimidation, discrimination and domination. So if we're for freedom of speech, our main question, then, must be: how do we best foster public spheres of openness and equality?

It seems to me a deep mistake, and one often committed by liberals, to assume that we achieve this by simply removing the State from the picture. As the second-wave feminist movement uncompromisingly pointed out in the 60s and 70s: when you remove the State you don't get a realm of pure equality and freedom. You get private institutions, organizations, roles, norms, practices, etc. that are structured hierarchically. When you look at the vast majority of non-State social institutions (e.g. churches, schools, clubs, media organizations, workplaces, etc.), you see elements of patriarchy, among other things. This fact about private social institutions was the motivation for the famous feminist slogan that the "personal is political". The idea was that when you looked in places where the State proper did not reach, you nonetheless found power and domination that needed to be dealt with politically, not on an individual-to-individual basis.

So, what we see here is that fostering spaces of openness --the precondition of having freedom of speech-- isn't accomplished by simply removing the State from the picture. Instead, fostering openness is accomplished by reconfiguring basic social institutions and public spaces in such a way that people can appear before others as equals, free from domination, shame, intimidation, etc. For my part, I see no plausible reason not to use every tool at our disposal to accomplish that goal. Excluding the legal or legislative changes from our toolkit strikes me as dogmatic.

For these reasons, I don't see a good reason not to consider a legislative onslaught against street harassment. I'm not convinced that claiming that this is a "First Amendment Issue" means that we should not legislate against harassment. On the contrary, any plausible interpretation of the spirit of First Amendment seems suggest that we should legislate against it.

Moreover, if we cannot structure our own public spaces democratically, then I don't know what democracy is for. Public space is, by definition, space that is open to all of us. But it is not a space where anything goes --violence, sexual assault, oppression, and subordination should not be welcome. If democracy is good for anything at all --it is good for enabling us to collectively decide what norms we want to structure the public spaces we share in common. So its hard for me to see why we shouldn't be able to collectively decide whether or not we want our public spaces to be ones in which harassment and domination is tolerated. To reject this seems to me to reject the role of collective self-rule in a democratic society.

Jill also suggests in the post that "I actually don’t agree with hate speech laws either." Perhaps that is the crux of the disagreement. I would have thought that hate speech was the paradigm of speech that doesn't deserve to be protected. Perhaps the thought is that the political community should be neutral about whether or not something is hateful, and thus refrain from banning it. But for my part, I don't think there's anything neutral about hate speech. Hate speech, as the name implies, is not speech that expresses some reasonable opinion or view that we might disagree with but nonetheless understand and tolerate. It is not "one contender" among many competing views about how to treat others. Hate speech is an expression of oppressive social norms that function to sustain existing inequalities of power. As such, it has no claim to being protected. There's no slippery slope here. If we have a clear idea, more or less, what is hateful and what is not, I don't see why we wouldn't want our laws to structure public spaces in such a way that puts a damper on oppressive speech.

Now some are bound to disagree here because they think that leaving "hate" open to interpretation is dangerous. Because we can't specify what all cases of hate share ex ante in a "fully directive" law, this kind of legislation leaves the door open for abuse. I think objection misses the mark. Lots of laws can't be fully directive, and we wouldn't always want them to be if they could. To be sure, some interpretation and deliberation will be required to parse out serious cases of oppressive street harassment, but is that a problem? I would have thought that laws which, as legal philosopher Seana Shiffrin puts it, "induce deliberation" would have the advantage of sparking public discussion and critical reflection. And since when has it ever been the case that we didn't need to think critically and reflect on how generalized laws apply to specific cases? I don't think the law is ever that simple. The slippery-slope worries here seem rather empty when you think through how unfounded they are.

Perhaps there are better reasons for recoiling from legislative action here, but I cant see what they are.