In order to win the hearts and minds of the campus censors, their sympathisers, and the waverers, it is not going to be enough to win the political debate: the philosophical debate also has to be won. Appropriating a term used in a different context by Sophal Ear, the Standard Total Academic View (STAV) on free speech has to be defeated on its own terms. And that STAV is against free speech.
Philosophy courses, women’s studies courses, gender studies courses, and other courses are recommending academic books, many of which are well argued, that promote either legislative restrictions on free speech or civil remedies by allowing those deemed “harmed” by racist speech or pornography to be able to sue for damages.
It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury of harm) to persons other than the actor, and that it is probably a necessary means to that end.
Feinberg summed up his own formulation more succinctly: “the prevention of offensive conduct is properly the state’s business.”
Jeremy Waldron is another STAV writer. He makes an appeal to political liberals by invoking the highly regarded twentieth century liberal philosopher, John Rawls. Rawls imagined a “well-ordered” society “in which everyone accepts, and knows that everyone else accepts, the very same principles of justice.” He declared that in such a society “the coercive powers of government are to some degree necessary for the stability of social cooperation.” Waldron accepts that Rawls would have opposed laws that restrict free speech. Nevertheless, he uses what he calls a Rawlsian framework and asks “What does a well-ordered society look like?” He believes it is one where the “public good” that people have their dignity assured exists.
Contra Feinberg, Waldron does not think that offence to others should be legally proscribed. In what he accepts is a difference with a “fine line” he believes that laws that restrict attacks on dignity can be justified. He states:
…not dignity in the sense of any particular level of honor or esteem (or self-esteem), but dignity in the sense of a person’s basic entitlement to be regarded as a member of society in good standing, as someone whose membership of a minority group does not disqualify him or her from social interaction. That is what hate speech attacks, and that is what laws suppressing hate speech laws aim to protect.
One of the most prominent STAV writers in favour of restricting speech, whose arguments need defeating, is Cambridge University’s Rae Langton. In 2013 Langton was inducted into the American Academy of Arts and Sciences. Last year readers of Prospect magazine voted her the eighteenth most important thinker in the world. And this year she will deliver the prestigious John Locke lectures at Oxford University. In one of her own books, in numerous articles, in online recorded conversations, in various colloquia, and in her submission to the Leveson Inquiry, Langton has banged her drum against pornography and hate speech.
Langton has drawn on the work of Catharine MacKinnon, a law professor and anti-pornography campaigner, and fused it with an argument used in a different context by the late J.L. Austin, the Oxford philosopher noted for his work on speech acts. By doing so she argues that “certain speech acts can subordinate certain social groups, when they unjustly rank a group as inferior, deprive them of powers and rights, and legitimate discrimination against them.” In her argument, pornography both subordinates and silences women. By subordinating women it “presents a conflict between pornographers’ right to liberty and women’s right to equality.” By silencing women a conflict is created “within liberty itself, between pornographers’ right to speak and women’s.” It is a convoluted argument but she has a number of acolytes marching to her beat.
It is not enough to simply cite the American First Amendment or harp on about the importance of free speech. Winning the debate against those that use the STAV mantra requires more than that because doing so does not effectively respond to someone referring to perlocutionary and illocutionary speech acts. To properly win the debate, one has to demolish the arguments of the would be censors. The debate has to be won on their terms.