Saturday, October 30, 2010

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.


Anonymous said...

Why would an opinion need to be reasonable to be protected? Who, then, determines "reasonability"?

Anonymous said...

Title 37 a. Criminal code of New York.
1. A $250 fine for any man making a comment on a woman's appearance with lewd intent, unless they have exchanged phone numbers or drinks have been purchased by one or more involved parties.
2. Intent is determined by a combined lewdness word score. A score of 20 or more is legally required to prove malfiesance.
Table 37 a 2
Baby - 10
Hey - 10
Sugar - 20
Honey - 20

t said...

Anonymous 8:04: I think your skepticism is misplaced. Do you want to say that street harassment is reasonable? Or, take hate speech: is that reasonable? In other words, does hate speech represent a legitimate point of view that we should tolerate as a live option among other possible views a reasonable person might hold?

I think that's patently absurd. Hate speech is just that: hate. I don't think it's something we should be "neutral" about. Nor is it something we need to tolerate.

What reason have you for tolerating such speech acts in public spaces?

I would say that we want our public spaces to be open ones in which everyone is able to appear as an equal, free from domination, shame, etc.

But that isn't possible if we "tolerate" toxic acts and harrassment that subordinate certain groups, and contaminate the entire space. If we tolerate those toxic acts, we in effect let those who are already empowered by existing norms (i.e. men, who often feel no shame or inhibitions when it comes to street harassment) set the tone of our public spaces.

Why should we let them set the tone? Why should we tolerate the status quo. I would have thought we wanted to change it. You can't be neutral on a moving train. One can be against sexism and oppression, or one can be for tolerating and protecting it. I don't see that these two stances are compatible.

As far as the skeptical rhetorical question you pose, there is an easy answer: democracy. We should collectively decide what norms structure our own public spaces, and this decision must be one in which we come to reflective conclusions based on serious consideration of alternatives. In the course of any such discussion, it should become obvious to everyone that hate, oppression, and so forth aren't serious alternatives. Hence we should feel no qualms about wanting to have public spaces that aren't contaminated by sexism, hate, and other obstacles to interaction among free and equal persons.

t said...

Anonymous 9:29- I acknowledge that institutionalizing this isn't easy. But neither is it easy in the case of rape. Our legal system is woefully unequipped to seriously deal with the problem of rape, and consequently many victims never even seek legal action (and when they do, it's a complete mess).

So your skepticism seems like it would apply to the case of rape as well.

Also- what are the costs and benefits here? I don't think that legal changes are going to solve this problem in its entirety, but I don't see why it couldn't be one of the tools in our shed. What's the cost of having a $250 or $500 fine for street harassment? What do we stand to lose, as a society, from having such a law?

If 5% of cat callers thought twice about what they were doing, that seems to me a reason to do it. Moreover, just having something put down in law also sends a message that, in my view at least, ought to be sent: we don't tolerate street harassment. I don't think there's any reason to try to pretend we should be "neutral" as to whether street harassment is bad.

Anonymous said...

So, t, you really mean that words which convey hatred should themselves be banned, and the users punished?

t said...

Not sure what you mean, but I would say that public acts (including what you say to people) that are implicated in the continued subordination of oppressed peoples should not be tolerated in public spaces. I'm not really feeling the pull of your insinuation that that's somehow controversial. Perhaps you should explain rather than insinuate.

Do you disagree that people should be able to walk in public spaces free from subordination, pressure to feel shame about who they are, etc.? Do you disagree that public spaces should be egalitarian and open to all?

Either you let those who are presently empowered by existing social norms and practices, i.e. men, stay empowered and continue to do as they please. Or- we can decide to be part of changing those very norms and practices by refusing to tolerate things such as they are. I don't see that shying away from using the power of law here is to somehow give more respect to freedom. I think exactly the opposite: respecting the status quo norms and practices re: street interactions means respecting sexism and intimidation. I don't think we should respect that at all, precisely because it inhibits people's (particularly women's but also glbt peoples') freedom.

If you self-censor, cover up, hide who you are, etc. in public spaces because of fear of harassment and intimidation... that is a serious blow to your freedom, and your status as an equal among others. That is unacceptable. And we can either tolerate it by remaining "neutral", or we can decide to challenge it with all the available means before us. I can't see for the life of me why that wouldn't include changes in the law.

Think of it this way: who should decide the basic norms governing interactions in public spaces?

One answer would be: we should do nothing to change the status quo, and thus the bigots should decide. In other words we should privilege letting them do as they please over changing the norms in existence. I don't endorse that answer.

Another would be: we, i.e. the people, should collectively decide, on the basis of a reflective discussion amongst all involved parties, how our public spaces should be structured.

Anonymous said...

I don't think it's all that confusing, what I've asked you, t. Is it your position that words should be criminalized? If so, should the speakers or writers of them face actual punishment?

Anonymous said...

I see your point t, but unfortunately I believe that hate speech should be protected by the first amendment just as well as any other political speech. I think that hate speech should be protected for two reasons:
1. It is not clear who gets to define hate speech in our society. Is it hateful or bigoted for me, an atheist, to speak against religions who I believe are harmful and damaging to society? Under current applications of hate speech laws in western countries, speech that is critical of not only races and sexes, but religions, and general political movements has been penalized. Who gets to define what hate speech is, and why do they get to criminalize it?
2. Even if I think someone's views are hateful, misogynistic, terrible, retrograde, a blight on humanity, literally the WORST ideas in the world I still think that if we criminalize that speech we are simply suppressing ideas we disagree with. That is why I would hope a skinhead, a black supremicist, a radical leftist or ultraconservative should be allowed to speak their mind. As long as, of course, their speech doesn't represent an imminent incitement to violence or as direct planning for the commission of a crime. I don't think you could argue in good faith, that telling a woman she has a nice ass is either a direct incitement to a crime, or direct planning for that crime's commission.

t said...

Certain words already are criminalized. It's not the case that you can directly threatens someone's life in writing.

Are you suggesting that that's somehow problematic? If so, I'd love to hear why.

Also- if you are lgbt, or even just a young women (god forbid!)... walking through certain areas on the street can mean facing rebuke, harassment, or verbal intimidation. That is enough to make you feel criminalized and oppressed. Is that something you wish to protect?

Is it your view that this criminalization and oppression of pedestrians should be protected by law? Should those persons walking in a public space be subject to that harassment and intimidation?

t said...

"we are simply suppressing ideas we disagree with."

Nope. Hate is not just some "opinion" I happen to disagree with. It's not as though I myself loathe chocolate and wish to suppress others from expressing their love of it.

The expressions I'm talking about aren't like that. First of all they have a performative dimension, they are acts. Second of all, they are intimidating and are incursions on the freedom and equality of others. They are not just "offensive", they actually impact the ability of members of our society to appear in public as equals.

If laws aren't there to protect and ensure that everyone can appear in public spaces as a free and equal person, what on earth are they for?

"Who gets to define what hate speech is, and why do they get to criminalize it?"

This is an empty worry, and I've already addressed it.

Suppose someone said "well rape is really hard to define, and, in fact, some religious sects don't agree with me about what it is". Suppose some group or other thought that rape, by definition, couldn't occur within a marriage.

If we take your reasoning seriously, the inference we seem forced to draw here is that rape shouldn't be banned, since, it is hard to define what rape is and many people disagree about it.

Should we, as a society, "tolerate" the vile, sexist views about rape that some conservative religious sects hold? Should we refrain from protecting women from sexual violence because rape is hard to define?

And couldn't we just re-raise your rhetorical question here: "But who is to decide what rape is?".

That's obviously the wrong question to ask. It used to be that only old white men could define what it was- but then, as a result of organized political struggles by women themselves- the content of the law was changed. That is democracy in action- and that's how we should determine what is oppressive and what is not.

Of course, nobody (hopefully) would want to say that we shouldn't legally prohibit rape. And certainly no feminist could say otherwise- no matter what backward views some religious folks have in our society.

t said...

Suppose we institute a law which says that you cannot yell "[insert derogatory hate term directed at, say, lgbt persons]" at someone on the street or in a public space. Suppose there is a $500 fine for doing so or something like that. Suppose we called it "criminal street harassment" or something.

What's the problem with doing that? Is that supposed to be an unfair incursion on the freedom of the person who regularly does that kind of thing to lgbt people? Is that a problem because you aren't sure whether or not yelling such things really is oppressive (if so, we should talk about that)? Is the problem because you think that once we institute this law, it will, in effect, lead to a slippery slope in which we're well on our way to a 1984-type situation?

I'm not sure I find any of those reasons moving, but if there are reasons I've missed I'd be willing to consider them.

Anonymous said...

Feminism isn't neutral vis-a-vis oppression. Feminism isn't about tolerating sexism or respecting the "freedom" those who wish to maintain unequal relations of power. If that means we have to risk the delicate task of defining what oppression is, so be it. It's hard to imagine a way of thinking about oppression that wouldn't brush against the grain of existing opinion at all; surely some will find fault with it, and perhaps some will want to say of certain existing practices and norms that they aren't oppressive at all. But to acknowledge that fact is just to recognize what we're up against. To take the "neutralist" view and resign oneself to doing nothing is not a feminist position at all; this is to give the status quo a blessing it does not deserve. This is how oppression reproduces itself over time.

Anonymous said...

Look, I will respond to your comment about a hypothetical law opposing derogatory language. For one, I agree that such language is used to oppress lgbt individuals. However, I disagree with the enactment of a hypothetical law because it smacks of censorship. Also, it is a hop skip and a jump from outlawing language such as "I hate democrats" or "I hate republicans" or "I hate christianity" or anything expressing a strong dislike for an individual group (and which could be possibly taken as threatening). This is why I support the ACLU in its decisions, even unpopular ones like filing suits on the behalf of homophobic or racist organizations to preserve their freedom of speech. It's why I support people's rights to burn the U.S. flag, even though I'd never do it myself.

t said...

It's presently illegal to write, or say that you are going to do something that will threaten another person with violence.

Is that an infringement on freedom of speech? Who decides what's violent and what's not, anyway? And isn't such an infringement a clear sign that we're only a hop, skip and a jump away from total government censorship of everything we do?

Anonymous said...

Yeah, because there is a difference between threats of violence and expressions of hate. A threat of violence carries a reasonable expectation that violence is going to occur. Slurs or statements of hatred are, expressions of speech that do not necessarily carry such an assumption. If they do, I.E. telling an lgbt individual that "I'm going to kill you ***", then that should be prosecuted as a threat, not because it contains a word that is used in an offensive or hateful manner.

t said...

My point isn't that there is no distinctions between direct threats of violence and other ways of impugning, intimidating or shaming people. Of course there are.

My previous point was ironic- aiming to show that an absolutist, neutralist fetishism of "free speech" is absurd. Why is it absurd? Because surely nobody would want to say that direct threats of violence should be protected on grounds of "free speech". Some (see comments above) wanted to press a "slippery slope" objection in which prohibiting any speech is tantamount to enabling 1984-type scenarios. I think the fact that threats are already prohibited speech reduces that worry to absurdity.

Once we agree that threats should not be condoned and, indeed, should be prohibited, we are in effect saying that not all speech should be protected. So the more interesting question is *which* speech is to be protected and which isn't (and why or why not). Some wanted to say here something like "who's to decide what's oppressive and what's not?". My first response is: couldn't you ask that same question about what's a threat and what's not? Of course you can. And, no, the fact that we can ask that question doesn't mean that we should stop prohibiting violent threats.

Now, it seems to me that the reason we protect certain kinds of free speech is because we care about openness, freedom and equality. We care about bringing about conditions in which people can lead free lives and flourish. We don't think that citizens should be subject to the *arbitrary* whim of a censor. We think that the norms that should structure our interactions with others should be democratically determined and conducive to freedom.

But if you care about freedom, you can't tolerate people being intimidated and shamed in public spaces because this is clearly an infraction on their liberty and equality. We want public spaces to be free and open, i.e. we want them to be free of oppressive norms that intimidate and shame people unjustly.

If you tolerate and legally protect sexual harassment and intimidation on the street, as some claim that we should do, you violate all of what I've just said about freedom and equality. By giving legal protection to such intimidating harassment, one thereby institutionalizes oppression and legitimate the subordination and stigmatization of women and lgbt people. Is that a feminist position? Is that in keeping with the powerful slogan that "the personal is political"? I think not. That is a sexist, complacent position that advertises itself as "neutral" vis-a-vis oppression.