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Homoerotica & homophobia : hatred, pornography, and the politics of speech regulation Zanghellini, Aleardo 2000-12-31

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HOMOEROTICA & HOMOPHOBIA: H A T R E D , P O R N O G R A P H Y , A N D T H E POLITICS OF S P E E C H REGULATION by ALEARDO ZANGHELLINI Dott. i n G i u r i s p r u d e n z a (J.D.), U n i v e r s i t a ' Statale d i M i l a n o , 1999 A THESIS S U B M I T T E D IN P A R T I A L F U L F I L M E N T OF THE REQUIREMENTS F O R T H ED E G R E E OF  MASTER OF L A W S in T H E F A C U L T Y OF G R A D U A T E STUDIES (Department o f L a w ; S c h o o l o f L a w ; Graduate P r o g r a m m e ) W e accept this thesis as c o n f o r m i n g to the required standard  THE UNIVERSITY OF BRITISH C O L U M B I A A u g u s t 2000 © Aleardo Zanghellini,  2000  In presenting degree  this thesis  at the  in partial fulfilment  of the  University of British Columbia, I agree that the  freely available for reference  and study. I further  copying of this thesis for scholarly purposes department  or  requirements  by  his  or  her  representatives.  for an  advanced  Library shall make it  agree that permission for extensive  may be granted It  is  by the  understood  that  head  of my  copying  or  publication of this thesis for financial gain shall not be allowed without my written permission.  Department of  LAW  The University of British Columbia Vancouver, Canada Date  DE-6 (2/88)  3 4  Aug-UM  ;  2OQ0  ABSTRACT  This thesis analyses the question o f the regulation, motivated by egalitarian concerns, o f homophobic hate speech and homosexual pornography. I attempt to . critically evaluate what both liberal humanism and postmodernism can tell us about these types o f speech, and how we should best treat them, in a framework that takes lesbians' and gays' equality as the underlying organising principle. Although homosexual pornography cannot be convincingly exempted  from  regulation by affirming that it is not, contrary to heterosexual pornography, implicated in gender oppression, the importance o f free speech and the complexity o f all pornography messages suggest that the state is not justified in suppressing sex expression relying on the reification o f a single viewpoint about its harmfulness. The L a w , in limiting pornography on the basis o f the radical feminist rationale that assimilates it to hate speech, ends up making strong and arbitrary claims to truth, that are premised on doubtful assumptions,  silence alternative knowledges, subjugate  outsiders' experiences,  and  contribute to the creation o f oppressive social identities. I advise against censoring pornography out o f egalitarian concerns, and argue that, under certain conditions, engagement with court litigation and the deployment o f the rights discourse can be promising strategies for lesbians and gay men challenging such obscenity laws. Hate speech seems more evidently linked to discrimination than pornography, and speech act theory suggests that it enacts a specific kind o f subordination. However, the role played by homophobic hate speech i n perpetuating inequality for queers is limited when compared to other social/discursive practices: thus hate speech laws are the easiest but also, taken on their own, a largely ineffective way o f responding to homophobia. A s such, these laws bear a presumption o f being an unnecessary burden on freedom o f expression, a liberty that minorities have a vested interest in keeping as intact as possible. Against homophobia a radical measure is required that, focusing on education, w i l l actively promote equality values. This remedy w i l l be consistent with free speech doctrine to the extent that hate speech w i l l , setting apart some specific cases, escape regulation, and that the State w i l l assume an attitude directed to reaching understanding.  ii  T A B L E OF CONTENTS  Abstract  ii  INTRODUCTION  1 I  Premise  1  II  A n Overview of Legal Literature on Hate Speech and Pornography  5  III  Methodological Approach.  16  IV  Chapter Outline  23  CHAPTER I  25 I  The Radical Feminist Critique of Pornography . . .  25  II  The Butler Decision  30  II. 1  Butler: Seeming Ambiguity  30  II.2  Identification of Underlying s. 163  the  Legislative  Objective 32  II. 3  The Internal Necessities Test  36  11.4  Pressing and Substantial Legislative Objective and Rational Connection between the Obscenity Provision and the Objective of Preventing the Harm of Discrimination  40  Minimal Impairment of Freedom of Expression Effected by s. 163  44  Balancing Avoidance of Harm and the Deleterious Effects of s. 163 . . . .  46  The Impact of Butler on Lesbian and Gay Pornography  47  Differences between Heterosexual Pornography  51  11.5  11.6  III  IV  V  Homosexual  Regulation or De-Regulation?  in  and  54  C H A P T E R II  63 I  Queer Little Sisters Go to Court  63  II  The Subject of Rights  65  II. 1  General Discussion  65  II. 2  Application to the Case Study  75  III  The Entitlement Model  80  III. 1  General Discussion  80  III. 2  Application to the Case Study  84  IV  The Flexibility of Rights . . ..-  89  V  The Rigidity of Rights: the Dominant Ideology  Constraints  of 92  V.l  Atomism  92  V.2  Antistatism  96  V.2(a)  Antistatism and Judges  97  V.2(b)  Antistatism and Anti-Censorship Claims  100  V.3  Equality Claims and the Minority Paradigm  102  C H A P T E R III  109 I  Premise: Pornography and Hate Speech  109  II  Supporting Hate Speech Regulation by Attempting to Discredit General Free Speech Principles  113  III  Matsuda's Approach to Racist Hate Speech  120  IV  Hate Speech as Illocution  127  IV. 1  Locution, Illocution, Perlocution  127  IV.2  Illocutionary Force (Institutionally Bound and Institutionally Unbound Speech Acts)  130  The Illocutionary Force of Racist Hate Speech Acts  132  IV.2(a)  iv  IV.2(a)(1)  IV.2(a)(2)  IV.2(b)  Racist Hate Speech Acts Addressing Victimised Hearers  136  Racist Hate Speech Acts Addressing nonVictimised Hearers  138  The Illocutionary Force of Homophobic Hate Speech Acts  140  V  Subordination as Harm  142  VI  Hate Speech as Perlocution  145  VII  Intermediate Reflections: Pornography and Hate Speech The Harmfulness of Hate Speech. Remedies  149 151  VIII C H A P T E R IV  164 I  Concluding Remarks  Bibliography  164 166  Legislation  166  Jurisprudence  166  Books  166  Articles  170  U R L Sources  172  v  HOMOEROTICA & HOMOPHOBIA: H A T R E D , PORNOGRAPHY, A N D T H E POLITICS OF SPEECH R E G U L A T I O N .  INTRODUCTION I: Premise. A great deal o f controversy has been swirling around the issue o f the legitimacy o f regulating/suppressing speech in order to advance equality values, at least since the late 70's-early 80's, when one part o f the feminist movement in Canada and the United States started engaging in a campaign aimed at the enactment o f anti-pornography legislation. Likewise, it was in 1977 that the staunchness o f American c i v i l libertarians and First Amendment 'absolutists' was put to the test by the facts o f Skokie - facts o f painful symbolic significance, that involved the National Socialist Party o f America meanly targeting the village o f Skokie, Illinois, with a large Jewish population, for the purpose o f marching along its streets i n Third Reich attire. Since the radical feminists' insightful analysis o f pornography suggested this expressive material being akin to hate speech, the two types o f expression have been generally dealt with, by both legal scholars and the Courts, as the two manifestations o f a 1  same larger problem, i.e. that o f speech promoting inequality. Consistently, when the 2  See e.g. R v. Butler [1992] 1 S.C.R. 452 [hereinafter Butler] at 505, where the Supreme Court of Canada draws explicitly a comparison between hate speech and pornography in order to justify its decision to uphold legislation criminalizing the latter. Hate speech is that form of speech promoting racial, religious or some other kind of legislatively defined hatred; whilst pornography is intended, in this context, as that kind of sexually explicit expression which objectifies human beings and focuses around dominance-submission themes, thus contributing, arguably, to women's and minorities' oppression. Regulation of hate speech and pornography, thus understood, is 1  2  1  relevant issues were brought before the Courts o f both Canada and the United states, the outcome o f equality-centred pornography cases was analogous to, and inspired by the same principles as, that o f hate speech cases within the same legal system; although Canadian and American Courts took different, i n fact opposite, views on the problem. In fact, the Supreme Court o f the United States, i n in affirming  per curiam the  R.A. V.  v.  City of St. Paul,  3  and  decision o f the Court o f Appeal delivered i n the case  American Booksellers Association v. Hudnut, defended the right to freedom o f 4  expression  respectively  o f hate-mongers  and  pornographers  on  the  basis  of  the  inadmissibility o f viewpoint-based regulation, because o f the risks such regulation creates o f establishing a situation o f government thought control. O n the contrary, the ratio 5  decidendi in the  that informed the Supreme Court o f Canada's decisions i n  Butler  R.  v.  Keegstra  6  and  case justified the suppression of, respectively, hate and obscene speech on  supported by arguing that measures that outlaw the expression of those viewpoints disapproved of in a society committed to equality are required in order to let minorities participate in the democratic process. Such a process is said to be distorted by the unequal power relations existing between dominant and oppressed groups, and therefore limitations on the freedom of dominant groups to spread bigoted views are called for in order to make the freedom and equality of oppressed groups actually effective (see infra, in the text, for a more detailed analysis). This notion was transfused into law in Canada, while is deemed unacceptable in the United States. 112 S. Ct. 2538 (1992). The circumstances of the case involved a burning cross placed in the garden of an Afro-American family, and a section of a local piece of legislation -St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis.Code 292.02 (1990)- which criminalized the conduct of he/she who placed an object on a private or public property that he/she knew or could reasonably expect to be cause of "anger, alarm or resentment in others on the basis of race, colour, creed or gender". The Court declared the legislation unconstitutional. 771 F.2d 323 (7th Cir. 1985), aff'dper curiam, 475 U.S. 1001 (1986) [hereinafter American Booksellers}. In this case the Court held unconstitutional an ordinance that allowed the victims of pornography, defined as the graphic sexually explicit subordination of women, to bring a civil rights action against pornographers in order to recover damages on a showing that they had suffered some specified harms (sexual assault, forced exposure to pornographic material, coercion taking place during the production of pornographic material and discriminatory treatment) occurred as a consequence or in the occasion of the pornographic expression. The free speech clause of the American Bill of Rights ("Congress shall make no law ... abridging the freedom of speech, or of the press:" U.S. Const, amend. I) is phrased, and the constitutional history of the United States has developed, in such a way as to afford very little scope for regulation of freedom of expression such as that outlined above. The grip that the principle of the free market of ideas still holds on American culture, a scepticism in the wisdom of the state and loyalty to a liberal conception of individual freedom contribute to a judicial interpretation according to which hate speech laws and equality-based anti- , pornography legislation have no place in American society. The main idea is that the state cannot take a stand and decide which beliefs its citizens should express or not, because freedom of expression is the one liberty at the very root of a democratic system, which can be opposed to a totalitarian one precisely because the democratic state intervenes to suppress the expression of political beliefs only when they create an imminent, immediate and serious risk of violence. 3  4  5  2  the ground o f the harm that such speech can cause by culturally legitimising and contributing to the discrimination o f minorities.  7  There is clearly a relationship o f continuity between the Courts decisions and scholarly reflection on the subject o f pornography and hate speech regulation. The conceptual frameworks within which scholars have debated the issues o f pornography  and hate  speech  vary  slightly,  and occasionally more  evidently;  nevertheless, it is generally understood, among the majority o f the authors dealing with pornography and hate speech, that these two types o f expression are not radically different issues (however often it may happen that these authors focus their attention only or mainly on one o f the two) and that they do not deserve a substantially differential treatment. Often, arguments to advise or reject regulation o f one kind o f expression are employed to suggest the same outcome for the other kind. The fact that both pornography and hate speech relate to a conflict between egalitarian and libertarian values, and to the problem o f the continuing inequality o f powerless groups i n society and its relationship with expressive activities o f more powerful groups seems to suggest that there are indeed commonalities between the two types o f expression. It might then be reasonable to expect that some o f the conclusions drawn i n one area may turn out to provide some kind o f insight to deal with the other kind o f expression. However, an attention to context suggests that, as I w i l l argue in chapter three, there are important differences between hate speech and pornography. Juxtaposing the 8  [1990] 3 S.C.R. 697. On this basis, the constitutionality of the provisions of the Canadian Criminal Code which criminalize the production, distribution, circulation, sale, exposition, or possession (for the purposes of distributing, selling, exposing or circulating) obscene material (Criminal Code, R.S.C. 1985, c. C-46, s. 163) and the wilful promotion of hatred against any identifiable group (Criminal Code, R.S.C. 1985, c. C-46, s. 319(2)) were upheld, respectively, in the Butler and in the Keegstra case. As opposed to the U.S.A., in fact, Canada has: 1) a Charter of Rights and Freedoms that affords more flexible interpretations of the principle of freedom of expression; 2) a different idea from the United States' as to the legitimate role of the state and the relative positions the state and civil society should occupy; and 3) a greater commitment to social equality achieved through direct state intervention. Canada has thus both hate speech laws and equalitybased anti-pornography legislation, both of which passed constitutional muster. 6  7  3  analysis o f the two, however, is still meaningful to the extent that it helps highlight the difference between the concerns that, in any specific area, hate speech and pornography respectively may give rise to. This difference, in turn, may be said to be more marked when some specific contexts are considered: i n particular, it can be argued that a relevant part o f the homosexual community -especially, maybe, o f its male component- generally favours pornography deregulation at the same time as supporting criminalization o f hate speech, and asking, specifically, for protection against homophobic hate speech. This thesis, following the recent trend towards a greater attention to the specific contexts i n which the problems o f pornography and hate speech arise, w i l l analyse precisely the question o f the regulation o f pornography and hate speech with particular reference to homophobic hate speech and homosexual pornography. In the case o f homosexual pornography, my conclusion w i l l be that it cannot be exempted from regulation on the ground o f considering it, contrary to heterosexual pornography, harmless in terms o f its relation to gender oppression. I w i l l hold, instead, that, because  o f the importance o f freedom o f speech and the complexity and  contradictory character o f the meanings o f all pornography, (both lesbian/gay and straight) the state is not justified in suppressing sexually explicit expression relying on the reification o f a single viewpoint about the harmfulness o f such speech; much more so that such reification at the same time is likely to bring about or strengthen such results as the de-authorisation o f 'outsiders" knowledges/experiences, and such have oppressive consequences. A s regards homophobic hate speech, m y point w i l l be that alternative solutions to the suppression o f speech can be devised to deal with the problems o f hatred and discrimination against lesbian and gay men. If such solutions, focusing on education, were accepted, not only could they be shown -certain conditions obtaining- to be perfectly compatible with the principle o f freedom o f speech, but they would also be likely to be more effective than measures that attempt to exclude homophobic hatred from the realm o f expressible expression. For an opinion strongly supporting a differentiation between hate speech and pornography analysis, see B. Cossman & S. Bell, "Introduction" in B. Cossman, ed., Bad Attitude/s on Trial (Toronto: University of 8  4  A body o f scholarly literature, however limited, concerned with the question o f regulating homosexual sexually explicit representations, shows that the specificity o f the pornographic discourse within a homosexual context has already attracted some degree o f attention within legal scholarhip. Also the field o f hate speech specifically directed at 9  homosexuals is not utterly unexplored.  10  II: An Overview of Legal Literature on Hate Speech and Pornography.  The discussion, among both scholars and judges, tends to be largely polarised between positions that either favour or oppose regulation o f both hate speech and pornography, the debate about these issues being ridden with highly political oppositions such as powerful/powerless, disenfranchisement/empowerment, equality/freedom, formal equality/substantial authoritarianism,  equality,  self-fulfilment/society's  state partiality/state  good,  state  wisdom/state  neutrality, moral autonomy/official morality,  degradation/dignity. Although the ways in which beliefs relating to these oppositions interact are neither simple nor necessitated, and however problematic some o f these oppositions themselves are, it seems that the solutions proposed tend to lean towards either egalitarian models o f state intervention or libertarian models o f c i v i l society self-regulation (with elements o f social conservatism sometimes playing a role i n either one or the other alternative).  Toronto Press, 1997) 3 at 42. See, e.g.: B . Cossman, ed., supra note 8; C F . Stychin, Law's Desire (London: Routledge, 1995) especially at 55-90; C.N. Kendall, ""Real Dominant Real Fun!:" Gay Male Pornography and the Pursuit of Masculinity" (1993) 57(1) Sask. L . Rev. 21; D. Fraser "Oral Sex in the Age of Deconstruction: The Madonna Question, Sex and the House of Lords" (Oct. 1993) 3 Australasian Gay & Lesbian L J 1. See: W.B. Rubenstein, "Since when Is the Fourteenth Amendment Our Route to Equality?: Some Reflections on the Construction of the Hate Speech Debate from a Lesbian/Gay Perspective" (1992) 2 Law & Sexuality: Rev. Lesbian & Gay Legal Issues 19; M.T. Zingo, Sex/Gender Outsiders, Hate Speech, and Freedom of Expression: Can They Say That about Me? (Westport, Conn.: Praeger, 1998); M.-F Major, "Sexual-Orientation Hate Propaganda: Time to Regroup" (1996) 11 Canadian Journal of Law and Society 221; D. Marr, "How Can We Square Freedom with Anti-Vilification Laws?" (2000) 9 Australasian Gay and Lesbian Law Journal 9; C. Puplick, "Achieving an Equilibrium - A Response to David Marr" (2000) 9 Australasian Gay and Lesbian Law Journal 22; A . Scahill, "Can Hate Speech Be Free Speech?" (1994) 4 Australasian Gay and Lesbian Law Journal 1. 9  10  5  A reading o f the works o f Canadian and American scholars and activists who devoted some o f their energies to the problem at issue shows that, among others, the main conceptual frameworks within which the anti-pornography/pro-hate speech laws position developed are those connected with critical race theory, Marxism-informed theories, and radical feminism. Their  11  analysis generally proceeds  from  the  recognisance  o f the  unequal  distribution o f power among different societal groups. Then the role o f the state is taken into consideration, along with its complicity in perpetuating power inequalities. The institutions and principles informing the liberal form o f the state, it is suggested, behind a facade o f neutrality, practically deny the equal participation o f all the citizens to the democratic process by sanctioning the chronic power imbalances typical o f the status quo. A l s o , it is sometimes implied or expressly suggested, this is no historical accident, but rather a mechanism devised by those in power to keep the less powerful under control. In this view, the law may be seen as either an instrument or an emanation o f power, according to a pattern that recalls M a r x ' s ideas o f infrastructure/superstructure. The idea is that the principle o f freedom o f speech is exploited by those who have enough power and means to make their voices heard, credible and conspicuous. O n the contrary, the disadvantaged groups in society are silenced by their lack o f power. They have no access to the free market o f ideas and therefore their speech does not become part of the public debate. Besides, the all-pervasive presence o f the discourse o f the powerful, " See e.g. as to hate speech: K. Mahoney, "Hate Speech: Affirmation or Contradiction of Freedom of Expression" (1996) 3 University of Illinois Law Review 789; S. Sedley, "The Spider and the Fly: a Question of Principle" in L. Gostin, ed., Civil Liberties in Conflict, (London: Routledge, 1998) 136; C R . Sunstein, Democracy and the Problem of Free Speech (New York: The Free Press, 1993) especially at 167209; O.M. Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Boulder,  Colorado: Westview Press, 1996) at 109-20; R. Delgado and J. Stefancic, Must we Defend the Nazis? (New York: New York University Press, 1997); M.J. Matsuda, "Public Response to Racist Speech: Considering the Victim's Story" (1989) 87 Mich. L. Rev. 2320. As regards pornography, see e.g.: A. Dworkin & C. MacKinnon, Pornography and Civil Rights: A New Day For Women's Equality (Minneapolis, Minn:  Organising Against Pornography, 1988); C. MacKinnon and A. Dworkin, eds., In Harm's Way (Cambridge, Mass.: Harvard University Press, 1997); C R . Sunstein, ibid, especially at 210-26; C N . Kendall, "Gay Male Pornography After Little Sisters Book and Art Emporium: A Call for Gay Male Cooperation in the Struggle for Sex Equality" (1997) XII (1) Wisconsin Women's Law Journal 21; J. Stoltenberg, "Pornography and Freedom" in M.S. Kimmel, ed., Men Confronting Pornography (New York: Crown Publishers, 1990) 60; and O.M. Fiss, ibid, at 67-87.  6  along with the 'common sense' i n which their rhetoric is cloaked, makes the powerless internalise false notions about themselves, such as those spread exactly through hate speech and sexist forms o f expression. Once this process o f internalisation has taken place, the falsities thus instilled are particularly deleterious for the sense o f self-worth o f the disadvantaged. This, in turn, discourages them from feeling even entitled to take part in the free market o f ideas. Some underscore also the extent to which the internalisation o f dominant ideology can prevent the oppressed groups from taking even notice o f their own plight and the injustice that they suffer from, thus making them accept uncritically the status  quo. In this  way the oppressed, albeit inadvertently, become complicit i n their own oppression. Radical feminists, for example, have referred to the state o f "false consciousness" that some women, according to them, find themselves i n .  12  Even i f the oppressed have not internalised any sense o f inferiority, the hideousness o f hateful and sexist speech can cause resentment, alarm, consequent lack o f trust i n state institutions, or however, emotional distress: all o f these lead to a sense o f disenfranchisement that again has the effect o f silencing those whose speech should be upheld and encouraged, precisely for their lack o f power to participate on equal terms i n the public debate. Finally, it should be recalled that some authors go a long way towards applying the principles o f substantive equality to hate propaganda and pornography, and advocate According to radical feminism, patriarchy is a trans-historical phenomenon. Masculine values are enforced and reinforced mainly through the sphere of sexuality, which is the primary site of male supremacy, where women experience oppression owing to the sexualization of unequal relationships of dominance and submission and of actual violence. Pornography, intended as the graphic sexually explicit subordination of women, is neither fantasy, nor portrayal, nor representation, but reality: the reality of actual women being oppressed, the documentation and sexualization of their rape and coercion, and the perpetuation of all women's inequality (gender oppression), along with the reinforcement of male domination, through female objectification and victimisation. In this perspective, women who fail to realise their oppressed status, how strongly they have been encouraged to adopt submissive attitudes, and the role sex and pornography play in perpetuating and daily recreating patriarchy, are thought to be casualties of false consciousness, as a consequence of their internalisation of a gender culture that they assimilate, among the others, through sex speech. Again, this idea seems modelled on a Marxist understanding of the alienation of the proletariat, whose living within the superstructure of bourgeois cultural relations and values prevents it from being aware of its own oppression and thus requires its being guided by an intellectual avant-garde. This, however, also suggests that common perceptions of dominance feminism portraying women as utterly destitute of agency are misconceived: in fact they seem contradicted by the mere fact that radical feminists allow room for women's consciousness raising. 12  7  the suppression o f the expression o f hateful opinions only when directed at minorities: under this approach, for example, hate speech against whites should be allowed, while the discriminatory speech targeting people o f colour should be prohibited. To pornography  summarise:  those  supporting  legislation  suppressing  13  hate  speech  take the view that unequal power relations i n society compromise  and the  validity o f liberal arguments about the free marketplace o f ideas and the rhetoric o f more speech as the best remedy;  14  instead, they argue, it must be recognised that an application  o f the principle o f freedom o f expression, especially i n the case o f hate speech and sex speech, has a discriminatory impact on the less powerful, who are the target o f the bigoted speech o f the dominant groups i n society. Such speech produces a silencing effect that, along w i t h the peculiar harms created by this speech  itself (emotional  and  psychological distress, perpetuation o f bigoted stereotypes about minorities), contributes to discrimination, violence and the maintenance o f widespread inequalities.  See e.g. M.J. Matsuda, supra note 11. It should be also mentioned the position of those American authors who recognise the harmfulness of pornography and hate speech, advocate for redressing the status inequalities that these kinds of speech lead to, and nevertheless are sceptical as to the desirability or the efficacy and feasibility of state regulation in this field (because of the "procedural fetishism, severity, formalism, inaccessibility and delay" typical of the justice system: R.L. Abel, Speech and Respect (London: Stevens & Sons: Sweet & Maxwell, 1994) at 144). The alternative remedies suggested by these scholars to deal with the harms of hate and sexist sexually explicit speech include: a) the proposal of an "informal processing of disputes", which should take place within the communities of the civil society, (sport teams, associations, shops, etc.) where effective social (as opposed to ineffective legal) sanctions, such as "gossip, cooperation and obstruction, deference and contempt, inclusion and ostracism", can be applied (ibid). The victim (by whose side every third party should stand unambiguously, acknowledging the social asymmetries overlooked by the state 'blind' neutrality) should initiate and have control over the process; thus whether the offender deserved rehabilitation or not should be the victim's decision. However, the offender should be given the chance to justify himself and beg the victim's pardon, acknowledging the harms caused by his expressive act: see ibid 123 ff.; b) the proposal of redistributing the social cost of harmful speech on society as a whole, which is the actual beneficiary of a legal system where a full free speech principle is accepted. This should be done through a system that allowed the victims of bigoted speech to recover damages from the state, or through publicly funded insurance systems. This remedy, it is suggested, could be used every time a victim is denied the right to recover damages from the offender because of the chilling effect on the public debate that the recognisance of such a right would give rise to: see F. Schauer, "Justificacion Etica de la Libertad de Expresion" at (1997) 1 Perspectivas en Politica, Economia y Gestion. It is alleged, among other things, that more speech is no remedy because both hate speech and pornography operate at an unconscious and/or emotional level. 13  14  8  On the other hand, those authors who advocate unfettered freedom o f speech tend to privilege classical civil libertarian arguments.  15  The classical rationales underlying the  adoption o f a generalised freedom o f speech principle are reiterated i n the field o f hate speech and pornography. The argument from democracy is said to fit these kinds o f speech in a peculiarly meaningful way: given the highly political content o f the forms o f speech at issue, and the degree o f controversy surrounding them, everyone should be left free to speak at liberty their beliefs on the subject; for, it is adduced, the principle o f democratic selfgovernment, even before being concerned with who w i l l represent the people and the wisdom o f governmental measures taken by the democratically elected on behalf o f the people, involves a process o f self-determination undertaken by the people themselves, to which, among others, uninhibited debate about the issues which are the object o f hate speech and pornography is central. A l s o the argument from truth is referred to by supporters o f free speech. Contrary to what is often affirmed by critics o f this argument, the idea that truth w i l l ultimately emerge i n the free marketplace o f ideas is not at the core o f such an argument.  16  John  Stuart M i l l ' s formulation o f the argument from truth on which civil libertarians draw,  See e.g. N. Wolfson, Hate Speech, Sex Speech, Free Speech (Westport, Connecticut: Praeger, 1996); N. Dorsen, "Is there a right to stop offensive speech? The case of the Nazis at Skokie" and L. Gostin, "Editor's Notes: Unravelling the Conflict" in L. Gostin, ed., supra note 11, 122 and 145 respectively; H.L. Gates Jr. et al., Speaking of Race, Speaking of Sex (New York: New York University Press, 1994); and N. Strossen, Defending Pornography (NewYork: Scribner, 1995). To my knowledge, we have to go back to the seventeenth century to find unconditional support for the view that truth will win through if left free to vie against falsity. Milton, e.g., argued: "And though all the windes of doctrine were let loose to play upon the earth, so Truth be in the field... [l]et her and Falshood grapple; who ever knew Truth put to wors, in a free and open encounter. Her confuting is the best and surest suppressing... For who knows not that Truth is strong next to the Almighty; she needs no policies, nor stratagems, nor licencings to make her victorious, those are the shifts and the defences that error uses against her power: give her but room, & do not bind her when she sleeps, for then she speaks not true, as the old Proteus did, who spake only when he was caught & bound, but then rather she turns herself into all shapes:" J. Milton, Aeropagitica, online: Project Gutenberg <http://promo.net/pg/ authors/milton John ,html> (available in paper format (New York: Garland, 1974)). In a similar vein, for Locke, "[f]he business of laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth... For the truth certainly would do well enough if she were once left to shift for herself... She is not taught by laws, nor has she any need of force to procure her entrance into the minds of men... [ I]f Truth makes not her way into the understanding by her own light, she will be the weaker for any borrowedforce violence can add to her": J. Locke, A Letter Concerning Toleration, online: Internet Encyclopaedia of Philosophy <www.utm.edu/researcli/iep/text/locke/tolerat.htm> (available in paper format, 2 ed. (Indianapolis: Bobbs-Merrill, 1955)). 15  16  9  relies instead on the idea that on every matter other than mathematical knowledge truth is not to be easily established, and, to some extent, is unattainable; and the state's proscribing any opinion on a given subject would amount to an inadmissible presumption of infallibility. Moreover, even when a truth is relatively well established (as is the case for Newtonian science or, for that matter, the equal worth and dignity o f all human beings irrespective o f race and sex), allowing for contrary opinions to circulate freely contributes to maintaining the vitality o f the true opinion by challenging its validity and forcing it to reassert itself convincingly. It is apparent how these arguments can be employed to 17  question the desirability o f enacting or maintaining hate speech and/or anti-pornography legislation. Contemporary 'anti-censorship' scholars underscore as well how, by permitting the government to decide for the people which speech should be allowed to circulate freely i n the c i v i l society and which should not -no matter how hideous, loathsome, unpopular the speech at issue- we are actually taking a step down the slippery slope, as the principle o f freedom o f expression is designed to protect exactly the kinds o f speech that government or majorities do not like. The suppression o f the hateful speech o f the privileged as opposed to the one o f the disadvantaged is also strongly criticized: to entrust the government with the task o f allocating speech power would be highly problematic to the extent that there are no objective ways to assess relations o f power in society. It is clear how this lack o f trust in the state and the  dreaded  risk o f  authoritarianism and government thought-control are informed by a liberal view o f the relative merits o f the state and civil society. The argument according to which freedom o f expression advances individual selffulfilment comes also into play. This free speech rationale is generally opposed by hate speech and pornography regulation advocates on the basis that the self realisation o f hatemongers and o f pornography producers and consumers, achieved at the expense o f discriminated groups in society and, i n the case o f pornographers, polluted by the profit  See J.S. Mill, On Liberty, online: Columbia University <www.columbia.edu/acis/bartleby/mill/html> (available in paper format with The Subjection of Women and Chapters on Socialism (Cambridge: Cambridge University Press, 1989)). 17  10  motive, does not deserve'being taken seriously into consideration. Supporters o f the principle o f individual self-fulfilment answer in two ways: First, by emphasising how a general free speech principle serves the cause o f minorities themselves, by allowing them to be vocal in their claims, given a) that their speech cannot be lawfully silenced as long as a full free speech principle exists; and b) the tendency o f legal actors to use hate speech laws and anti-pornography laws to enthusiastically curtail the speech o f minorities that clothe their claims in anti-white rhetoric or i n the provocative challenge o f conventional sexual norms.  18  Second, by grounding the principle o f free speech on a general right to moral autonomy  19  even for hate-mongers and pornography producers and consumers, provided  the harm principle is not infringed. In this view, a liberal perspective on the harm principle w i l l consider the harm done to sensitivities not material enough to justify restriction o f hateful and sexist sexually explicit speech. A n argument about a type o f harm conceived in terms o f everyday discrimination occurring as a consequence o f the perpetuation o f bigoted views about minorities w i l l also be rejected within the logic o f classical liberalism, because o f the impossibility o f proving a causal connection between the harm and the speech (and to the reply that in the field of laws against pollution, for example, a showing o f a definitive causal link is not required, a c i v i l libertarian would probably retort that in the case o f speech we are not dealing with some physical/chemical law not already discovered, but with the human mind that inevitably mediates the message received before acting, and is ultimately endowed with free will).  18  See, for a paradigmatic instance of these abuses in the field of anti-pornography legislation, Little Sisters  Book and Art Emporium v. Canada (Minister oj'Justice) (1996) 131 D.L.R. (4th) 293 (B.C.S.C.) affd  [1998] 160 D.L.R. (4th) 385 (B.C.C.A.) [hereinafter Little Sisters], where it was acknowledged that Canadian Customs officials were applying the rules of customs controls against the importation of obscenity in a discriminatory fashion, subjecting gay pornography to a higher degree of scrutiny than was used with straight material; as to hate speech abuses are documented, too: "In Britain the [hate propaganda] law was used, at least in its first decade of operation, more effectively against Black Power leaders than against white racists": G. Robertson and A. Nicol, Media Law 3d ed.(London: Penguin Books, 1992) at 169. See also H.L. Gates Jr. "Critical Race Theory and the First Amendment" in H.L. Gates Jr. et al., supra note 15, 17 at 43-5. Freedom of expression, according to Mill, "being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it": J.S. Mill, supra note 17. 19  11  Another anti-censorship argument considers the undesirability o f removing bigoted speech from the public sphere and forcing it underground, where it is more likely to give rise to violent outbursts. A l s o this argument is liberal in that it is premised on the assumption that a system maximising freedom o f expression is more likely to guarantee a "balance between stability and change", provided men "have learnt how to function within the l a w " :  20  in order for men to function within the law, which seems desirable in  this view, they must share the values underlying the law as it is, which means, essentially, to share liberal values. Both utilitarian concerns (mainly in the rationales o f democracy and truth) and rights-based considerations (mainly in the rationale about individual self-realisation) play a part, and overlap, in inspiring the arguments typically advanced by libertarians. It should be mentioned as well that some approaches are more clearly rights-based, and try to inscribe the issue o f free speech within the framework o f a moral system based, on the principles o f equal rights, equal respect, and individual moral autonomy. Under such views everyone has a right to assess for themselves which kind o f speech they w i l l want to be exposed to and whether to believe or not its contents. In this perspective, it has been argued that, as regards pornography, the controversy existing as to the meaning o f pornography itself and the legitimacy and wisdom o f enacting or keeping anti-pornography legislation, especially within the feminist movement itself, shows how everyone's moral autonomy should be left essentially free to decide whether to read and look at pornographic material or not, and assess independently which messages, i f any, it believes such material is capable o f conveying i n any given case. In the case o f hate speech, it is suggested that precisely the falsity o f the opinions expressed calls for individuals' right to autonomous evaluation and rejection o f the kind o f expression in question.  2 0  21  T.I. Emerson, "Toward a General Theory of the First Amendment" in K. Middleton & R.M. Mersky,  eds., Freedom of Expression: A Collection of Best Writings (Buffalo: William S. Hein, 1981)  135 at 142.  For such an approach see the compelling Richards, D.A.J. Toleration and the Constitution (Oxford: Oxford University Press, 1998). In his philosophy of equal respect supporting freedom of speech for hatemongers the author avers: "Persons are not... the propositions that they believe. It is a vicious political fallacy ... to assume that our contempt for false evaluative opinions may justly be transferred to contempt for the persons who conscientiously hold and express such views": ibid, at 190-2. 21  12  Such rights-informed theories, generally elaborated at an extremely high level o f theoretical sophistication, show a liberal slant in that they emphasise  individual  autonomy, and they are premised on contractarian ideas of societal organisation and the law.  Their historical antecedents are easily identifiable with notions typical o f the  Enlightenment, such as natural law, individual rationality, and human rights inherently pertaining to the individual (by right o f Nature or the L a w o f God).  22  To simplify (perhaps more than is legitimate) the account that has so far been provided, it could be said that the main issue at stake in the confrontation between those who support pornography and hate-speech regulation and those who oppose it has to do with the degree o f apprehension o f the harm involved. Synthetically: the reasoning o f those advocating curtailment o f hate-mongers' and pornographers' speech rights is that this kind o f speech contributes to and results i n the harm o f everyday discrimination o f minorities and creates a danger, dreadfully concrete, of violence against these groups. Sometimes the reasoning echoes that o f the regulation o f economic activities for the sake o f preserving the environment and preventing pollution: even i f a single dose o f pollution (i.e. hateful, prejudiced speech) may not be dangerous per se, the accumulation o f incremental doses w i l l end up (or has already produced) in ecological disaster. N o matter i f actual evidence cannot be provided to establish a causal connection between the activity at issue and the resulting harm, the risks are high enough to justify an inference o f harm and regulate the dangerous activity. Free speech supporters, on the contrary, seem to subscribe to M i l l ' s  harm  principle in a more traditional way: the balance between the state and society's intervention over the individual to prevent harm to others on the one hand, and the right  Without currently referring to any such notion as the Law of God, these rights-based theories still rest on conceptions according to which the idea of equal respect for the critical conscience of everyone is a principle that cannot be dispensed with (and actually can be found almost) in any moral system; more generally their idea is that the law should reflect such ultimate moral tenets as the one just mentioned, and that every individual is entitled to some fundamental rights that cannot be violated. Besides, a less sceptical and relativist attitude than the one showed by utilitarian liberalism is apparent in that rights-based theories do not shrink from qualifying prejudices, grounded on racial or sexual hatred, as 'false' (albeit this, as already suggested, is not considered a sufficient reason to curtail freedom of speech, that is central to everyone's right to freedom of conscience and to the exercise of one's powers of critical rationality). 22  13  to individual self-determination on the other must be struck so as to justify state intervention only at the point were someone's expressive activity results in a clear and present danger o f direct and actual harm. Given the central importance o f the free speech principle to representative democracies, the advancement o f truth and individual selffulfilment, this means, arguably, that the ideal standard i n hate speech cases should be the same as the one established by the Warren Court i n the United States in the case  Branderburg v. Ohio:  23,  "[T]he constitutional guarantees o f free speech and free press do not permit a State to forbid or proscribe advocacy o f the use o f force or o f law violation except where such  advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (emphasis added).  24  Underlying such a generous approach to the free speech rights even o f those who promote hatred is the (liberal) understanding that human beings possess agency and are capable o f critical thinking although this does not necessarily mean that such faculties are utterly unrestrained and all-powerful (as eighteenth or nineteenth century liberals seemed to suggest). This means also that when the problem at issue, rather than violence against minorities, is the (related) harm o f discrimination, concluding that bigoted speech results directly i n discriminatory treatment (an activity justly proscribed), or however contributes to discrimination according to the pattern o f the metaphor o f pollution, would constitute an oversimplified and mechanical account o f the way in which psychological processes and human interaction work.  25  Another implicit premise, as already suggested, is that the  harm o f hurt sensitivities and wounded feelings (emotional distress) is not (or should not be) deemed a kind o f harm that justifies free speech restrictions because o f the potential it has for wiping away freedom o f speech altogether.  23  395 U.S. 444 (1969).  24  Ibid, at  447.  It might be interesting to notice that occasionally judicial decisions protecting freedom of speech interests may be prone to accept somewhat cynically that hate speech or pornography do result, inevitably so to speak, in discrimination (then, the ground on which free speech claims are nevertheless supported is the interest in avoiding governmental thought-control). See, e.g., the reasoning of Easterbrook, Circuit  25  Judge, in American Booksellers, supra note 4.  14  If the controversy around hate and sexist sexually explicit speech has been mainly dominated by a clash between two ways o f conceiving the common good, i.e. egalitarianism v. libertarianism, the account here provided would be seriously incomplete i f it failed to refer to the fact that, especially as regards pornography, other voices have been taking part i n the debate. In particular, there is a varied body o f feminist literature addressing the issue o f the undesirability o f pornography regulation. Part o f it relies on the above illustrated c i v i l libertarian arguments, albeit relocated within a feminist perspective. For instance, some feminists emphasise the role, in advancing women's claims, o f a strong freedom o f expression principle covering all kinds o f unpopular thought. Both claim  26  in and outside a libertarian framework, however, anti-censorship feminists  a right to women's  independent  sexual imagery and pleasure,  to  which  pornography is not, as opposed to censorship, always necessarily inimical. The reality o f the sexism and harmfulness inherent in mainstream pornography is not discounted; nevertheless, anti-censorship arguments are advanced, grounded on the belief that antipornography laws, applied by legal actors influenced by dominant ideology, would end up being turned against women to suppress their own sexually explicit expressiveness and contain their sexual subjectivity. Another argument is that a sexist pornography is a symptom rather than the cause o f a sexist society, and therefore, instead o f relying on censorship, structural changes should be effected, women's inequality redressed, and women's power enhanced, e.g., through the welfare system.  27  The stigmatising effect o f anti-pornography laws ostensibly directed at protecting women is also an issue taken into account, considering the possibly deleterious impact o f a legally sanctioned view o f women as helpless, childlike, victimised by male sexuality, and i n need o f paternalistic protection.  28  See e.g. J. Callwood, "Feminist Debates and Civil Liberties" in V. Burstyn, ed., Women against Censorship (Vancouver: Douglas & Mclntyre, 1985) 121. See V. Burstyn, ed., ibid. The question of agency is here often problematized: there is a strong sense of the societal constraints that limit women's choices and their ability to participate on equal terms in the free market of ideas, but at the same time it is recognised that the possibility of that participation is not foreclosed. Also the meaning and 26  27  28  15  Ill: Methodological Approach.  In dealing with the problem o f homophobic hate speech and homosexual pornography  I  will  draw  on  different  theoretical/methodological  approaches:  poststructuralism (especially Foucauldian feminism and queer theory) and (contradictory as at first sight this may seem) more traditional humanist principles o f liberal political theory. Let me clarify this methodological position.  Feminist re-elaborations o f Foucauldian analysis have brought attention to the complex and ambiguous relationship between postmodernism/poststructuralism and modernist thought. In particular, I have found Kathi Weeks's heuristic account o f this relationship in her book  Constituting Feminist Subjects greatly helpful. 29  In what might be read as a history o f the postmodernist project, and using K u h n ' s paradigm theory, she explains how a homogeneous  and reductive  postmodernist  paradigm™ was built a) at the cost o f erasing differences among a variety o f intellectual enterprises that chronologically developed in succession to French structuralism, and which can be referred to as 'poststructuralist tradition'; and b) in opposition to a likewise over-simplistically conceived modernist paradigm. This was done i n order to serve the purposes of: i) facilitating communicative relations between undertakers o f the new intellectual project (poststructuralism); ii) converting new forces to its development and elaboration; and iii) ensuring its imperviousness to critiques coming from positions - i.e. those to which the label o f 'modernism' was attached - conceived as lying outside the postmodernist paradigm itself.  the contradictory roles of pornography, along with the differences between fantasy and action, have been explored and problematized. For a thorough account of the feminist debate about pornography and a discussion about the reflection on women's agency that it stimulated, see: K. Abrams, "Sex Wars Redux: Agency and Coercion in Feminist Legal Theory" (1995) 95 Columbia L. Rev. 304. K. Weeks, Constituting Feminist Subjects, (Ithaca: Cornell University Press, 1998). Paradigm here is defined as a "set of values questions, vocabularies, methods, and criteria of validity": ibid at 51. 29  30  16  The overall goal was (as generally i n cases o f paradigm building) to promote new research  possibilities  by  substituting  a  new knowledge  to  the  pre-existing  theoretical/methodological systems which foreclosed such possibilities- these systems themselves having already been, at least to some extent, 'paradigmatised' by their practitioners (which operation had marked the birth o f the modernist paradigm), and hence rendered rigid and impermeable to novelty.  31  If we accept this account (to which some credit is perhaps lent by the objections to the  use o f term  "postmodernism"  raised  by authors  themselves  identified as  postmodernist ), then 'eclectic' methodological approaches that -like the one I propose to 32  use here- attempt to combine features o f what are no longer conceived as mutually exclusive paradigms but more permeable intellectual traditions gain a certain degree o f legitimacy.  The poststructuralist insights that I w i l l make use o f in my analysis o f homosexual sexually explicit representation and homophobic hate speech w i l l be explained i n the course o f the analysis itself, as they from time to time become relevant with reference to specific problems. However, some basic, introductory notions can be set out now. From a poststructuralist perspective, it can be argued that nothing exists outside discourse. This should be taken to mean that there are no ontological, permanent or ultimate truths, and that, rather, sundry competing truths are created by different social discourses. Science, as well as L a w , are discourses that posit their own specific truths by making claims to authoritative interpretation o f reality.  33  Deconstruction, as a method  employed by poststructuralists, seeks (also) to reveal the contingency o f what is presented as an ontological truth, and i n so doing unmasks its constructed nature. The gesture through which claims to truth are made is an exercise o f power, as its implications are to exclude other productions o f knowledge from the realm o f truth and to disqualify other claims to truth. Since power is thus implicated i n theories, and theories Ibid at 48-69. See e.g. J.P Butler, "Contingent Foundations: Feminism and the Question of 'Postmodernim'" in J.P. Butler and J.W. Scott, eds., Feminists Theorize the Political (New York: Routledge, 1992), 3. 31  32  17  are discourses, categories constructed by different social discourses and presented as "given" bear a presumption o f being functional to political ends. Just as there is nothing outside discourse, there is no discourse outside power. One characteristic o f modern forms o f knowledge, (that can, more accurately, be referred to as power-knowledge regimes) is that they are aimed at regulating and containing. The most relevant dimension o f modern power, that is, is its being 'disciplinary.' Disciplinary power is taken i n opposition to repressive power: as such, disciplinary power is conceptualised as productive, for, through discourse, it creates categories, it constructs truths, and it constitutes subjects-all o f which become disciplinary devices. A t the same time power also produces sites o f resistance and counter-knowledge, which participate i n power.  34  In this grid o f analysis, homosexuality is conceived precisely as a social construction. M i c h e l Foucault fixes the birth o f the category 'homosexual' i n the second half o f the X I X century, when the sciences o f man shifted the focus o f attention from acts of sodomy (which had traditionally been the concern o f civil and canonical codes) to the  idea o f a homosexual identity: A s defined by the ancient civil or canonical codes, sodomy was a category of forbidden acts; their perpetrator was nothing more than the juridical subject o f them . . . Homosexuality appeared as one o f the forms o f sexuality when it was transposed from the practice o f sodomy onto a kind of interior androgyny, a hermaphrodism o f the soul. The sodomite had been a temporary aberration; the homosexual was now a species. 35  Contemporary  so-called  queer  theorists  36  have  further  elaborated,  in a  poststructuralist perspective, on how the category o f the homosexual should be deemed to be a cultural construction.  On the subject of how the Law produces its own truths see C. Smart, Feminism and the Power of Law (London: Routledge, 1989) at 9-14. For a brief introduction to these concepts see E. Comack, "Theoretical Excursions" in E. Comack, ed., Locating Law: Race/Class/Gender Connections (Halifax, N.S.: Fernwood Books, 1999) 19 at 61-67. M. Foucault, The History of Sexuality: An Introduction, vol. I (New York: Vintage Books, 1990) at 43 [hereinafter: The History of Sexuality]. For an introduction to queer theory see A. Jagose, Queer Theory: An Introduction (New York: New York University Press, 1996). 33  34  35  36  18  Part o f the aim o f deconstruction, as one o f the methods (or the method) o f poststructuralism,  is to problematize binary oppositions,  and to  displace  dichotomous modes o f thinking, by showing that such oppositions are  rigidly  contingent,  unstable- shortly, culturally constructed. B y using this approach, it has been cogently argued that the notion o f sex itself does not exist without discourse: cultural norms shape bodies, give them meaning by creating two sexes and choosing some biological characteristics as the salient, defining traits o f either o f the two sexes.  37  If sex is a social  construction, sexual orientation, being in a relationship o f continuity with the preliminary socially constructed binary opposition o f two sexes, is no less contingent.  38  The L a w itself, both in its statutory and judicial dimensions, is familiar with categorical thinking. Actually, as a discourse, and at that a powerful one, the L a w has often a primary role i n producing or contributing to the production o f arbitrary oppositions and categories, thereby legitimising or sanctioning or even establishing discriminatory treatment. In theorising the universal subject, queer theorists argue, both liberal philosophies and legal theories grounded on these philosophies performed a theoretical gesture o f exclusion, to the effect that the universal subject o f rights was conceived i n ethnocentric, sexist and heterosexist terms. Every act that constitutes a subject, according to poststructuralists, is also an act o f exclusion and erasure. Some subjects are constituted  at the expense o f the  de-  Judith Butler puts this question convincingly: "Somebody might well say: isn't it the case that certain bodies go to the gynaecologist for certain kinds of examination and certain bodies do not? And I would obviously affirm that. But the real question here is: to what extent does a body get defined by its capacity for pregnancy? Why is it pregnancy by which that body gets defined? [...] Now, it seems to me that, although women's bodies generally speaking are understood as capable of impregnation, the fact of the matter is that there are female infants and children who cannot be impregnated, there are older women who cannot be impregnated, there are women of all ages who cannot be impregnated, and even if they could ideally, that is not the necessary salient feature of their bodies or even of their being women. What the question does is try to make the problematic of reproduction central to the sexing of the body. But I am not sure that is, or oughtto be, what is absolutely salient or primary in the sexing of the body. If it is, I think it's the imposition of a norm, not the neutral description of biological constraints. [...] Why shouldn't it be that a woman who wants to have some part in child-rearing, but doesn't want to have a part in child bearing, or who wants to have nothing to do with either, can inhabit her gender without an implicit sense of 37  failure or inadequacy?": Extracts from Gender as Performance: An Interview with Judith Butler (Interview  by Peter Osborne and Lynne Segal, London, 1993), online: www.theory.org.uk <http://www.leeds.ac.uk/ics/but-intl.htm> (full version originally published in (1994) 67 Radical Philosophy) [hereinafter Gender as Performance].  19  subjectivation o f others - o f 'the other'. B y erasing from its concerns the category o f the homosexual after constituting a legal subject defined also by its heterosexuality, or by naming the homosexual to deny her status (as opposed to that o f the heterosexual) o f subject o f rights i n any given case, the law practically constructed legal subjectivity on a discriminatory basis premised on the exclusion and silencing o f 'the other.'  39  The very existence o f a self-styled 'gay' identity (dependant on a previously installed medicalised 'homosexuality') and o f a recognisable cultural specificity that can be associated with it reflect the extent to which the opposition homo/hetero is deeply embedded i n society's way o f understanding and making sense o f reality, and how even those who fit the category o f 'the homosexual' daily reinstall and reinforce the constructed opposition by naming it over and over again. A poststructuralist/queer perspective takes issues with the identity politics o f homosexual movements that, to advance their claims, organise around fixed notions o f identity such as that o f 'gay;' this is because o f an awareness o f the constructedness o f social identities, o f the historically oppressive origins o f the category 'homosexuality,' and o f the potentially oppressive (disciplinary) and exclusionary side-effects o f a political strategy that ties individuals to a specific sexual identity (however partially redefined that identity might be, as is the case with 'gay,' which depends on , but is not the same as, 'the homosexual'). Since, as a result o f the interplay o f social and legal discourses, the heterosexual perceives the homosexual as the other, and the homosexual agrees that she is other than the heterosexual, there is room for hate speech directed at homosexuals. There is also room for a specifically homosexual pornography. To the extent that homosexuality, homosexual pornography and hate speech against homosexual are categories relatively well established i n our cultural system, it is possible to engage in an analysis o f the problem o f legal regulation o f sexual orientation-specific hate speech and pornography. See, for a comprehensive poststructuralist reflection on sex, gender and desire, J.P. Butler, Gender (London: Routledge, 1990) at 1-34. For these concepts, see: J.P. Butler, "Contingent Foundations: Feminism and the Question of Postmodernism" in J.P. Butler and J.W. Scott, eds., supra note 32, 3; and C F . Stychin, supra note 9 at 1137; for examples of how the law constructs the homosexual see the essays contained in "Part 1" of C F . Stychin & D. Herman, eds., Legal Inversions (Philadelphia: Temple University Press, 1995) at 3-73. 38  Trouble  39  20  I have  above  referred  to  liberal principles as informing, in addition to  poststructuralism, the theoretical perspective adopted in this thesis. The liberal position that at times w i l l be recognisable throughout this work can be briefly summarised here. M y first general assumption, on which it is not possible to elaborate in this thesis, is that no convincing reasons have to date been provided to make us want to dispense with democratic systems that protect the c i v i l and political rights o f the people so as to allow the people -i.e. 'the governed'- to govern themselves. This brings me immediately to the relevance o f freedom o f expression in liberal discourse. When I conceived this thesis, I did not mean it to be a stale reproduction o f classic civil  libertarian arguments  on the  subject  o f free  speech, pornography  and  the  dissemination o f hate. A s I attempted to examine these problems making use o f less traditional theoretical approaches, however, I found myself indirectly reaffirming, one by one, precisely such liberal arguments. While this arguably shows that part o f the discourse that constitutes me is liberal humanism, it can also mean, as I suggest towards the end o f this section, that such discourse has still valid contributions to make to the reflection on the problems I have been dealing with. Since liberal free speech theory is part o f the texture o f this thesis, it is worth clarifying this position o f mine on freedom o f expression, although I do not purport to provide a detailed analysis o f why freedom o f speech is important, and assume a certain degree o f familiarity with free speech principles. I have above mentioned my subscribing to the view that  democratic systems are a  desirable form o f societal organisation. While I consider c i v i l libertarian free speech doctrine generally sound, (recognising that there is value in all the three rationales namely, democracy, pursuit o f truth, self-fulfilment- generally advanced to support freedom o f expression) I do so especially to the extent that such doctrine links robust freedom o f expression to  democratic self-government. Furthermore, I believe i n a very  wide notion o f self-government- one, specifically, that encompasses the right o f a people to the dynamic, ongoing negotiation o f its own self-definition. This means that m y presumption, generally speaking, is to consider as much speech as possible protected by  21  the free expression guarantee (by this does I do not mean to suggest, obviously, that I do not find it desirable to restrict certain speech in certain circumstances). A s part o f the stance that takes freedom o f expression very seriously, I regard disadvantaged minorities as having an interest in keeping the free speech principle as intact as possible, accepting the view that where deference for this principle is strongest official suppression o f subjugated knowledges/experiences should be most difficult to justify and hence easier to contain and denounce. A s it is through self-expression that oppressed minorities/individuals can contribute to the construction o f a less oppressive social reality, and as there is no guarantee that precedents allowing regulation that is not content/viewpoint-neutral won't  be used  to justify precisely the  suppression  of  disadvantaged minorities' or individuals' views, I believe there is value i n the idea that we should be wary o f allowing regulation o f speech that is content/viewpoint-based (of course this does not mean that such regulation is always necessarily wrong). A s should be obvious from what I have just said about the free speech o f minorities, I subscribe to the view that governments in western countries have not ceased (nor could they cease, by their very nature) to pose a threat to the liberties and equality o f individuals/minorities (I expand on this idea in chapter three, section II; and in chapter two, section II (1), where I also provide reasons for considering this view as not irreconcilable with the poststructuralist insight that puts into question both the notion o f 'the individual' and the concept o f repressive state/juridical power). The point just made is important, as it can be said that it is precisely the recognisance o f the persisting solid reality o f repressive/juridical power that makes liberal theory a necessary supplement o f poststructuralist analysis i n dealing with m y subject matter, that involves complex intersections between equality and liberty. In chapter three section II I w i l l somewhat further clarify m y position regarding free speech, dealing sketchily with why I believe the argument from democracy is still valid, how I intend the argument from truth, how the clear and present danger test should be understood, why robust freedom o f speech appears advantageous for minorities, and in which sense the free market o f ideas needs democratising.  22  B y endorsing in this work libertarian positions as regards freedom o f expression, I hope I w i l l not convey the sense o f having a-contextually accepted, or advocating an acontextual acceptance of, neutral principles merely for the. sake o f maintaining or reinstalling a narrative about state power encroaching on individual liberties. In this work I attempt to critically consider what both liberalism and postmodernism can tell us about lesbian/gay-specific pornographic and hateful speech, and about how we should best treat these problematic types o f expression, in a framework that takes equality for lesbians and gay men as the underlying organising principle. H o w such equality can be furthered when pornography and hate speech are at issue is explored precisely with the aid o f both poststructuralist and liberal insights.  I V : Chapter Outline.  Chapter one is about the regulation o f pornography motivated by egalitarian concerns. It analyses, i n particular, the Butler decision, i n which the Supreme Court o f Canada, as already mentioned, upheld the regulation o f sexually explicit representation on a finding that it contributed to gender oppression. The importance o f the Canadian experience when considering equality-based justifications for pornography regulation is prominent. Canada, in fact, occupies a peculiar position among other western countries, most o f which, although adopting -unlike the U . S . A . - a similar position to Canada's as regards hate speech, tend -like the U . S . A . - not to be concerned with the regulation o f pornographic expression on the basis o f the harm it produces i n terms o f gender oppression (but rather justify censorship on the ground o f protecting public morality). In this chapter I argue that, contrary to what is sometimes adduced, the language of the Butler decision was not ambiguous in the first place, actually mixing conservative morality considerations with the ostensible concern o f preventing harm to women and society. I therefore criticise the view that it is because o f a conservative component o f its that Butler lends itself to justifying the restriction o f pornography that is, supposedly, not harmful to women, such as homosexual pornography. Instead I try to show that the Butler decision is perfectly consistent with its radical feminist premises, that is with the idea that  23  pornography should be restricted only on the basis o f its constituting a form o f discrimination. I f homosexual pornography is then caught in the net o f the obscenity provision, I contend, it is because from a radical feminist perspective this type o f sexual expression can be viewed as just as harmful as straight porn. The idea is then that a radical feminist reading o f the reality o f both gay and straight pornography is reductive and brings about undesirable results, and that the Court did wrong in accepting such reading i n the first place, when it delivered the In Chapter two I refer to the  Butler decision.  Little Sisters case, in which several 'homosexual'  plaintiffs sought to limit, i n Canada, the consequences o f Butler on the free speech rigths of the homosexual community (the impact  oi Butler, as a leading case, has gone beyond  the obscenity provision o f the criminal code discussed in that very case). I consider Little  Sisters as an instance o f the engagement o f lesbians and gay men with court litigation when freedom o f expression and equality are the values at stake, and proceed by exploring the extent to which such sort o f engagement can be deemed to be endowed with liberatory and progressive possibilities, particularly i n the light o f the (not always, as I w i l l try to show, completely justified) criticism that has been moved against the discourse o f rights. Chapter three considers the problem o f hate speech. I first question the wisdom o f strategies that try to make an argument for hate speech regulation by attempting to discredit free speech doctrine. I then examine more convincing ways o f advocating for restrictions on hate speech -namely, those that focus unambiguously on substantive equality concerns- and, with the help o f both poststructuralist insights and speech act theory, I explore to what extent homophobic hate speech can be considered an appropriate object o f legal regulation. I eventually envisage a system directed at combatting homophobic prejudice that focuses on education, and provide some reasons for considering it the solution most compatible with freedom o f expression theory.  24  CHAPTER I  I: The Radical Feminist Critique of Pornography.  In North-America, radical feminists' anti-pornography campaign had a dramatic 40  impact on the debate about the regulation o f sexually explicit material. That debate, until the beginning o f radical feminists' anti-pornography advocacy, had been revolving around the opposite arguments made by conservative public morality fans on the one hand and free speech supporters plus advocates o f sexual liberation on the other. A n t i pornography feminists successfully changed the terms o f the discussion by introducing a new rationale on which to ground the suppression o f (some kinds of) pornography. This rationale -harm to women- was in fact presented as wholly divorced from traditionally conservative evaluations o f sexually explicit representation. The kinds o f harm that radical feminists have been affirming  flow  from  pornography are all tightly intertwined and can be fully appreciated, I would argue, only within the overall framework o f dominance feminism itself. I w i l l attempt to outline briefly the anti-pornography position o f radical feminists, trying to make clear some o f the links (as I understand them) existing among dominance feminism various contentions - links that sometimes I have found to be more implicit than explicit.  According to radical feminism, sexuality is where power relations that subjugate women, while  affirming  male dominance, find  their quintessential  and primary  expression. Unequal power relations - i.e. the submission and humiliation o f women, and the supremacy o f men - are established first and foremost through sex; and it is this association with sexuality that makes relations based on inequality appealing. Thus,  Although there is no complete agreement on which movement/positions the expression 'radical feminism' points to, I use it here to refer to those perspectives developed particularly by Catharine MacKinnon and Andrea Dworkin, which provided the theoretical underpinnings of a feminist antipornography movement. In the text I will use the espression 'dominance feminism' in the same sense. 40  25  patriarchy and women's oppression are primarily established i n the sphere o f sexual relations, and from there they are 'transferred,' as it were, to everyday human interaction. A m o n g supporters o f this view, there seems to be a shared understanding about sex: its incredible power in shaping social identities, its being absolutely central to each individual's life and self-definition- the primary constructing force o f society and culture. Sex is not bad per se: it can be good i f informed by equality and mutuality. Still, bad sex, i.e. sex portraying dominance and submission, is overwhelmingly present, especially in pornography; and its representation through the pornographic means legitimises and reinstalls unequal sexual practices continuously. A t the same time, since pornography portrays (bad) sex, and relationships established i n the sexual sphere are reproduced in everyday life precisely because sex makes them appealing, pornography's  role in  producing and maintaining women's oppression is unrivalled. M a l e violence and abuse to women, along with widespread sex discrimination, and women's passive acceptance o f their own subjugation, are all natural consequences o f pornography. Such a view allows for only one reading o f the reality o f the  pornography  industry. Women who model or act in pornography are necessarily forced into it: directly, by men who compel them by making use o f threats or physical violence; and indirectly, either because o f the lack o f opportunities for women that connotes our patriarchal society (created as such by male sexualization o f unequal power relations), or owing to women's internalising a sense o f their inferiority, o f their being fit for men's abuse, even o f their enjoying it. In this conception, pornography is never 'acted': instead, it is invariably the documentation o f an actual rape because no woman, unless she is in a plight o f false consciousness, desires her own abuse - and sex which is not overtly caring, mutual, where the partners do not occupy positions o f perfect  equality, i n short  pornographic sex, is necessarily 'abuse.' The forcing o f women into pornography is but a manifestation and a consequence o f our patriarchal society, to the creation o f which pornography itself contributes to a very large extent. Women's oppression, however, as accruing from pornography, shows a variety o f other different aspects. Some are specifically related to the sexual sphere, and involve women being forcibly exposed to pornography, women being forced into  26  prostitution often with the aid o f pornographic material, and women being raped, sexually abused,  and  sexually  harassed  in  ways  that  clearly  reproduce  pornographic  representations or 'philosophies.' Other harms are less overtly related to the sexual sphere: however, once recognised that sexuality is such a central force in shaping social practices, it cannot be seriously contended that pornography is not deeply implicated i n general discriminatory habits and women's powerlessness, such as lack o f bargaining and speech power.  41  H o w does this conception o f society, sex, and its representation relate to the issue o f male and female homosexual pornography? Radical feminists, when they address the problem, tend to find that material produced by homosexuals for homosexuals reproduces the relations o f dominance/submission, the sexualization o f violence, the rape themes, the contempt for the 'other', the objectification and fragmentation, (i.e. reducing someone to their bodily parts and hence) the dehumanisation and absence o f the 'spiritual' dimension which are typical o f heterosexual pornography. Both lesbians and gay men, apparently, have participated in, or supported, radical feminists' anti-pornography campaigns. Some gay authors, in particular, have examined gay male sexually explicit representation (a phenomenon far more conspicuous than lesbian pornography ) from a radical feminist perspective. In their view, gay male 42  pornography  is  said  to  convey  the  view  that  male/dominant  is  good  and  female/submissive is bad. Gay male pornography, with its portrayal o f 'beefy', muscular men, is said to glorify a hyper-masculinity that entails, by definition, a derogatory view o f those who do not satisfy the requirements o f the virile male. Bottoms as opposed to tops,  "The bigotry and contempt pornography promotes ... diminish opportunities for equality of rights in employment, education, property, public accommodations, and public services; encourage violent crimes; contribute significantly to restricting women in particular from full exercise of citizenship and participation in public life, including in neighborhoods; ... undermine equal exercise of rights to speech and action:" A. Dworkin & C. MacKinnon, supra note 11 at 33. For radical feminists' anti-pornography advocacy in general see: ibid; C. MacKinnon & A. Dworkin, eds., supra note 11; and C. MacKinnon, Only Words (Cambridge, Mass: Harvard University Press, 1993). '"There are... only eight [lesbian] magazines published world-wide that I have ever been able to locate that always or ever have sexually explicit materials'": J. Fuller & S. Blackley (N. Pollack, ed.), Restricted Entry: Censorship on Trial (Vancouver: Press Gang Publishers, 1995) at 64 (the statement here reported was done by Ann Scales during the Little Sisters trial, excerpts of which are contained in Restricted Entry).  41  4 2  27  are equated with women and, together with them, degraded and dehumanised. Gay sadomasochism is seen as eroticising violence and degradation o f the human being. Consequently, all the harms identified by radical feminists with respect to heterosexual pornography are said to accrue from homosexual pornography as well: coercion o f actors during the production o f pornographic material; violence done to real people as a consequence o f the eroticisation o f abuse; status inequality and discrimination o f those who do not fit the category o f the dominant man; and the internalisation, on the part o f the less powerful, o f deleterious notions about their worth. Some  give an  explanation o f the  fact  that  43  gay pornography  reiterates,  unimaginatively, typical heterosexual themes, by underscoring that male homosexual pornography portrays the reality o f homosexual sex, where gay men engage in acts o f eroticised violence and/or dominance/submission in order to resolve their internalised homophobia.  Since being penetrated  is invariably interpreted  as  degrading  and  humiliating i n our patriarchal culture, and men want to retain their position o f supremacy while still keeping women in a position o f servitude, homophobia is integral to women's oppression in that it ensures that men and women keep their proper sexual roles. Gay men, allegedly, do not feel as i f they were 'real men', and hence try to assume dominant roles during sexual intercourse, or seek sexual contact in submissive roles with h i m whom they perceive as a real man in order to 'absorb' part o f his masculinity; or, even, engage in S & M practices as a kind o f ritual passage from their half-feminine, inferior status to full masculinity and the privileges that go with it. G a y pornography reproduces faithfully this reality, -which is built on male supremacy and misogyny- and reinforces it by objectifying bodies and acts and severing them from any emotional dimension, in such a way as to suggest that real men do not feel love and sympathy, but are just concerned with dominating, abusing and fucking. Thus gay pornography, besides being detrimental to gay men, contributes  See in general C.N. Kendall, supra note 11.  28  also to  gender  oppression, even i n the absence o f any explicit reference to women at all: this is because the values it is imbued with are premised on gender hierarchy.  44  A s is obvious, this reading o f gay male pornography is grounded at least in part on the idea o f gay men being victims o f false consciousness: they fail to realise that their sexual practices are a result o f internalised homophobia and misogyny, and the extent to which they actually run against their own self-interest. The  same  explanation  is  advanced  to justify  negative  evaluations  of  representations o f lesbian S & M or, however, lesbian intercourse that either appears to propose unequal power relations between the participants i n the sexual activity portrayed, or acts/scenarios that are deemed degrading. This is especially true with reference to antipornography feminists' evaluation o f mainstream pornography representing lesbian intercourse, generally produced by heterosexual males for the enjoyment o f heterosexual males. Lesbians who enjoy this sort o f pornography, failing to find it degrading, cannot be seen but as victims o f false consciousness. A s regards pornographic representations produced by lesbians for lesbians, there seems to be less agreement among radical feminists, who otherwise share negative evaluations  o f mainstream  and gay male pornography.  While,  for example, a  'Mackinnonite,' more orthodox anti-pornography feminist reading o f lesbian S & M representations would view them as uncompromisingly harmful, other radical feminists would not issue such condemnatory assessments.  45  These different evaluations about lesbian pornography seem to reproduce the radical feminist understanding o f the twofold position occupied by women who find themselves i n a context o f patriarchy. Women, i n so far as they suffer from the consequences o f -instead o f participating i n - domination, occupy either a peculiarly enlightened vantage point i n interpreting reality and the causes o f their oppression, or, to the extent that they internalise the dominant patriarchal culture, may fall into a state o f  See in general J. Stoltenberg, "Pornography and Freedom" and "Gay and the Propornography Movements: Having the Hots for Sex Discrimination" in M.S. Kimmel, ed., supra note 11, 60 and 248 respectively. See e.g. the statements made by Ann Scales reported in J. Fuller and S. Blackley, supra, note 42 at 66. 44  45  29  false consciousness, failing to realise the ways i n which male supremacy keeps them victimised mainly through sexuality and its representations. Privileging the former o f these conceptions about women's consciousness w i l l lead a radical feminist to consider lesbian pornography as free o f the power relations that pollute heterosexual  and gay male pornography  and that make  it a means o f  domination/discrimination; subscribing to the latter w i l l instead get her to view lesbian pornography that does not represent mutuality and affection as harmful and i n need o f legal regulation.  II: The Butler Decision.  1. Butler: Seeming Ambiguity. The  Butler decision, in upholding the constitutionality o f subsection 163(8) o f the  Criminal Code, and the definition o f obscenity contained therein, dominance feminism.  46  relied heavily on  47  The criminal provision at issue outlaws the public distribution or exhibition o f material the "dominant characteristic o f which is the undue exploitation o f sex." B y 48  "undue exploitation o f sex," Sopinka J., for the Court, affirms it is meant almost every instance o f sex coupled with violence, explicit sex involving children i n its production, and explicit sex which is "degrading and dehumanizing" provided the danger that such  "For the purposes of this Act, any publication the dominant characteristic of which is the undue exploitation of sex or of sex and one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene:" Criminal Code, R.S.C. 1985, c. C-46, s. 163(8). During the Butler trial in front of the Supreme Court of Canada, the Women's Legal Education and Action Fund - LEAF - submitted a brief, about the connection between pornography and women's oppression and discrimination, which was clearly informed by a radical feminist perspective. C. MacKinnon herself has participated directly in LEAF'S litigation related activities: L. Gotell, "Litigating Feminist 'Truth': an Anti-Foundationalist Critique" (1995) 4 Social and Legal Studies, 99 at 103. See also K. Johnson, Undressing the Canadian State (Halifax: Fernwood Publishing, 1995) at 63: "[In Butler] Leafs arguments parallel those of Mackinnon." (emphasis added). Since Butler, however, the position of LEAF as regards pornography has become much more nuanced: see Leaf and the Little Sisters Case:: Revisiting Butler and Law Arguments, online: LEAF <www.leaf.ca/DisButler.htm#anchor_topofpage> and 46  47  <www.leaf.ca/DisLaw.htm> respectively) and Little Sisters Book and Art Emporium et al v. Minister of Justice et al - Factum of the Women's Legal Education and Action Fund (LEAF), online: University of  Manitoba <www.umanitoba.ca/Law/Courses/Busby/Geiider/factuin.html> 48  See supra note 46.  30  [hereinafter LEAF Factum].  material creates (i.e. "the risk o f harm") is "substantial."  49  The harm that the provision  seeks to avoid is, it is contended, individuals being predisposed, by the material, to enact "antisocial conduct",  i.e. conduct that society considers dysfunctional, ("that society  formally recognizes as incompatible with its proper functioning") "as, for example, the mistreatment o f women by men."  50  To avoid subjective evaluations and arbitrariness, it is  said, the judge must decide "what the community would tolerate others being exposed to on the basis o f the degree o f harm that may flow from such exposure."  51  It seems fair enough to grant that the terms and concepts used, and the standards described, in the part o f the  Butler decision just outlined are ambiguous and could easily  legitimise their being used to enforce a traditional moral agenda in matters o f sexually explicit representation.  Should this happen,  o f course,  sexual minorities'  sexual  expression, such as homosexual pornography, would be the first casualty o f the enforcement o f s.163: with any likelihood, the community, taken as a whole (as the community standards test prescribes), would be more inclined to find degrading and dehumanising, likely to predispose individuals to dysfunctional conduct, and would therefore not tolerate the exposure o f others to, the portrayal o f homosexual sex acts, however performed in a context o f mutuality, rather than, say, the picture o f a woman in a posture o f submission. This would obviously frustrate any egalitarian concern o f radical feminists, at the same time as legitimise using Butler to repress homosexual expression. Therefore, i f we should think that the  Butler decision was framed i n the first place  in such a way as to accommodate elements o f social conservatism in its  ratio, then we  could blame such ambiguity for the employment o f s.163 directed at suppressing sexual minorities' sexually explicit expression. Some authors have taken this v i e w .  52  In what follows, on the contrary, I w i l l try to show that a reading o f the whole decision (as distinguished to a partial one limited to its first part) can be said to be fairly consistent with the egalitarian concerns o f radical feminism. This observation, as we shall  49 50 51 52  Butler, supra note 1 at 485. Ibid. Ibid. See e.g. J. Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto  Press, 1997) at 75-6, and B. Cossman, "Feminist Fashion or Morality in Drag? The Sexual Subtext of the Butler Decision" in B. Cossman, ed., supra note 8, 107.  31  see, has important consequences as regards the restriction o f sexual minorities' sexual expression under s.163.  2. Identification of the Legislative Objective Underlying s.163.  In testing the constitutionality o f s.163, Sopinka J., when he comes to the point o f determining whether the restriction posed on freedom o f expression by this provision o f the  Criminal Code can be justified in a free and democratic society, makes some  unequivocal statements, that contradict the legitimacy o f employing the obscenity provision having i n mind conservative considerations o f public morality. B y affirming that the  Charter forecloses a free speech infringement premised on  the imposition o f "a certain standard o f public and sexual morality, solely because it reflects the conventions o f a given community," Sopinka J. is actually denying that each 53  and every sexually explicit material that the community as a whole can qualify as degrading and dehumanising, involving the undue exploitation o f sex, and predisposing individuals to (anything that is perceived, again according to community standards, as) antisocial conduct can be restricted relying upon s.163. In order for it to be constitutional, moral disapprobation as the basis o f some piece o f legislation must be grounded, as the Court states forthwith, i n "Charter values" or, at a minimum, must not undermine  Charter values.  54  It seems logical that, applied to the case o f s.163, this general statement means that when a court is faced with the task o f determining whether certain pornographic material is obscene or not (that is, justifiably caught by s.163), it should apply the community standards test in such a way as to  take into account only those moral  conceptions of the community as a whole about the undue exploitation of sex (or sex that is degrading and dehumanising),  that are consistent with -i.e. either further, or at least do  not undermine- Charter values. This, i n turn, suggests that the community's concerns about sexual propriety, as opposed to sex inequality, should be left out o f consideration.  53  Butler, supra note 1 at 492.  54  Ibid, at 493.  32  In fact, while there is an equality clause i n the  Charter of Rights and Freedoms that  would support a notion o f morality based on radical feminist concerns about sex discrimination, not only there is no correspondent provision to back conservative, sexual propriety-centred, ideas o f morality, but such ideas, i f taken as the basis o f a free speech infringement, can precisely be thought to  undermine the value contained in the equality  clause o f the Charter. A s conservative sexual morality is connected to a variety o f gendered categories such as obligatory procreative sex and compulsory heterosexuality, it can well be conceived precisely as contributing to gender/sexual orientation oppression. The result o f incorporating conservative morality i n a piece o f obscenity legislation would arguably undermine the  Charter value o f equality, denying the equal right to  freedom o f expression o f those portraying 'inappropriate,' 'deviant' sexual practices and preventing the dissemination o f sex expression that by definition challenges those gendered categories reinforced by notions o f conservative sexual morality. This interpretation o f s.163, that would exclude sexual propriety from the realm o f the legitimate justifications for regulating sex speech, could follow, i n m y view, rather straightforwardly from the ideas expressed by Sopinka J. Thus understood, s.163 would not expose homosexual pornography to the greater ( i f compared to those investing straight porn) risks o f suppression that censorship grounded on notions o f conservative morality would entail. But actually Sopinka J. chooses a more winding route to make clear that there is no room for conservative, public morality considerations i n the obscenity provision o f the  Criminal Code. Instead o f following the more accurate approach o f distinguishing between different moral conceptions supporting the consideration o f different kinds o f harms, the 55  I.e.: * Egalitarian radical feminist morality <-> harm to women (subordination) } supported by Canadian Charter of Rights and Freedoms, s. 15(1), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c l l : "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." * Conservative sexual morality <-> harm to conservative sensitivities} no Charter support, and, furthermore, likely to undermine Charter values. 55  33  Justice limits himself to making some general observations at an abstract level,  and then  relies, i n assessing the constitutionality o f the obscenity provision, on a rigid distinction between immorality and harm, arguing that actually "the overriding objective o f s.163 is not moral disapprobation but the avoidance o f harm."  57  It is true this approach may appear to be not very rigorous; but it has the advantage o f formally sanctioning the objectivity o f the obscenity provision, declaring the  rationality  pornography.  58  o f the  law,  and  reifying  dominance  feminism  conceptions  of  This, i n fact, is what is accomplished once the obscenity provision is not  even linked to the furtherance or protection o f  Charter values, but is presented as  functional to some utterly objective, wholly uncontroversial ultimate end, that stands even above the moral values o f the Charter, the avoidance of harm. Shortly after trumpeting in this fashion the "overriding objective o f s.163," however, Sopinka J. is forced to recant owing to a technical question o f constitutional interpretation, the so called 'shifting purpose doctrine.' This doctrine would not allow the Court to save a provision from a finding o f unconstitutionality, should the Court try to do that by characterising the objective underlying the measure restricting a  Charter right  (here: freedom o f expression) as different (here: prevention o f harm) from the one that had determined the legislature to enact the legislation at issue in the first place (here: public morality considerations). Sopinka J. is thus forced to admit that harm and morality are actually related, that it is some specific kind o f moral disapprobation that makes the avoidance o f equality-related (as opposed to sexual propriety-centred)  harms  the  permissible pressing and substantial objective o f the obscenity provision. Under this interpretation, the shift i n the characterisation o f the objective is only in emphasis, and not i n purpose, and the legislation can be upheld.  59  See Butler, supra note 1 at 492-3. Ibid, at 493. On a terminological level, 'harm' as opposed to 'morality' is a distinction at the very core of radical feminist justifications for pornography regulation, and typical of liberal legal language in matters of sex/sexuality. At any rate, it should be noted that, even in thus temporarily giving this (more accurate) account of the legislative objective underlying s. 163 (avoidance of harm grounded in some conception of morality, rather than avoidance of harm as opposed to moral considerations), Sopinka J.'s reasoning still contrives not to contradict radical feminism. The Butler decision here, if not a specimen of legal coherence and crystal56  51  58  59  34  A s soon as he has reluctantly paid this forced tribute to constitutional legal formalism and its shifting purpose doctrine, however, the Justice prefers reverting to a discourse that dissociates obscenity regulation from any contingency that even a reference to  Charter (let alone some other sort of) values, as opposed to ontological necessities,  might suggest. Obscenity regulation is accordingly reified and presented as natural, unavoidable, and almost transcendent, by characterising it as a power "historically" pertaining to Parliament  60  (the paradigmatic institution o f democracy), consistent with  "Canada's international obligations," and  61  and a feature which is to be found in "most free  democratic societies" (emphasis added). Here, the continuity between this judicial 62  discourse and the rhetoric o f dominance feminism is apparent: just as, for radical feminists,  pornography is discrimination, for the Supreme Court o f Canada the  criminalization ofpornography is democracy, its fundamental embodiment, necessitated by the ostensibly value-free objective o f avoiding harm (and pornography is harm itself), by the exigencies o f the international community o f enlightened democratic countries, and, last but not least, by the natural state o f things (a "power which ... [Parliament] has historically enjoyed").  63  clear reasoning, is still unambiguous in rejecting any form of restriction on pornographic material that is premised on prudish and traditional evaluations about the 'impropriety' of some sexual acts. As illustrated, in fact, the kind of morality on the basis of which pornography harms are apprehended is the one rooted in Charter values, i.e. in egalitarianism as opposed to social conservatism (and only the former, as opposed to the latter, is consistent with radical feminism). 60  61  Butler, supra note 1 at 497. Ibid, at 498.  Ibid, at 497. The idea goes something like this: 'Obscenity regulation is natural and unavoidable, as Canadian legal history and the international experience prove.' It should not be overlooked that, for the sake of the credibility of this narrative, the difference, highlighted just a few lines above by Sopinka J. himself, between the admissibility of the restriction of obscenity for egalitarian concerns and its impermissible suppression for conservative preoccupations about public morality is erased in a single quick stroke. In fact countries other than Canada restrict obscenity as prurient and immoral rather than as discriminatory, and Canadian law has historically (before Butler) limited obscene expression for the same public morality-centred interests. 62  6 3  Butler, supra note 1 at 497.  35  3. The Internal Necessities Test. A literary, artistic or scientific purpose, the Court argues in Butler, redeems the 64  undue exploitation o f sex provided the portrayal o f sex is  essential to the purpose itself.  A t first sight, the acceptance o f the so-called internal necessities test would appear to be i n stark contradiction with radical feminist views on the harmfulness  of  pornographic material. H o w could aesthetic concerns be possibly considered more important than the avoidance o f harm to women, or sexual minorities? There would be an inconsistency here between the objective o f s.163, defined on the basis o f radical feminist theories about sex, sexual representation and discrimination, and the internal necessities test, unless... we recognise that the artistic defence is a fake. Actually, considering the language used by Sopinka J., it would seem that a work could have artistic merit only i f it did not exploit sex unduly. In other words, artistic value and undue exploitation o f sex are mutually exclusive. In the context o f art, Sopinka J. talks o f  "portrayal o f sex," (emphasis added) as 65  opposed to "undue exploitation o f sex"; and he contrasts a situation in which the undue exploitation o f sex is the dominant characteristic o f a work, to that where sexual representations are "essential to a wider artistic ... purpose,"  66  and where therefore the  undue exploitation o f sex is not a dominant characteristic. In the light o f this language, it is apparent how the Court did not mean the artistic defence to have any true  redeeming value o f obscene material, irrespective o f its  preliminary, misleading statement according to which "[t]he need to apply this test only arises i f a work contains sexually explicit material that by itself would constitute the undue exploitation o f sex."  67  Obscenity is statutorily defined as "any publication a  dominant characteristic o f which is the undue exploitation o f sex" (emphasis added).  68  Sopinka J., however, i n order to apply the internal necessities test, explains that a judge  6 4  6 5  66  67  See ibid, at 486. Ibid. Ibid. Ibid.  36  must determine what is the dominant characteristic o f a work. I f the main feature o f a 9  work is the undue exploitation o f sex that work can be defined obscenity, while artistic work is intended by the Court as something the dominant characteristic o f which is other than the undue exploitation o f sex. In this sense, all that the internal necessities test, as interpreted by the Court, tells us is that we can feel free, i f we please, to qualify as artistic, scientific, or literary that material that already falls outside the scope o f s. 163(8) because it does not meet its definitional requirements. This way o f interpreting the artistic defence is consistent with the Court's rejection o f the reasonable person's viewpoint i n assessing the artistic merits o f the expression at issue, and its relying, rather, on judges determining "whether the sexually explicit material when viewed i n the context o f the whole work would be tolerated by the  community as a whole" (emphasis added). A n artistic defence based on the reasonable 10  person's point o f view would impact dramatically any obscenity legislation (be it motivated either by dominance feminism or public morality concerns), making it, i f properly applied, altogether unworkable. The opposition pornography/art has long since been shown to rest on rather shaky grounds, to put it mildly. It is not feasible to identify what amounts to reasonableness when the criteria to evaluate the distinctions between art and pornography are considered, because it appears impossible to distil an average perception as regards what is and what is not artistic i n the realm o f sexually explicit expression. Since, accordingly, no reasonable person could draw a meaningful distinction between pornography and art, and since art lies at the very core o f the free speech guarantee (as Sopinka J. affirms), the result o f a consistently applied artistic defence evaluated from the reasonable person's standpoint would be that all obscene material could be thrown back from the periphery (where its sexual content and its profit motive had placed it) to the very heart o f freedom of expression; but then no obscenity law could work at all (the fact that such countries as the United States have i n their -however alive- obscenity laws precisely such an artistic defence that privileges the viewpoint o f the reasonable person could be taken to show  68  See supra note 46.  69  Butler, supra note 1 at 486.  37  merely that such a defence, where it exists, is not consistently applied and is meant to stand for little more than a formal tribute to the importance o f art i n our society.) Taking, instead, the viewpoint o f the community as a whole in assessing the artistic merits o f any given work allows the Court to avoid inquiring into the deep meaning of, and consequently displacing, the arbitrary opposition that contrasts art to pornography. That is to say, the stress placed on what the community would tolerate gives the judges the opportunity to adopt ad hoc criteria to identify what art and porn respectively are, and thus distinguish between the two, for, as I already suggested and as we shall see below i n greater detail, the standards o f the community as a whole that an 71  adjudicator must consider to make its evaluations about obscenity are, in reality, the radical feminist standards o f a subset o f the community. Pornography, thus, is sexually explicit material that (part of) the community does not tolerate on the basis o f considering it harmful for women's and other minorities' equality; whilst art, as above illustrated, is (part of?) that sexually explicit material that the community tolerates because its dominant characteristic is not the undue exploitation o f sex, i.e. the portrayal o f what is inimical to equality (rape and dominance/submission themes). The touchstone against which pornography and art are measured is the degree o f toleration" that part o f the community shows, and specifically o f that sort o f toleration premised on egalitarian concerns (rather than conservative ones). Thus the Court can implicitly identify art with what is socially tolerable (that is what a subset o f society perceives as equality-friendly) and pornography with what is socially intolerable, whilst no such equation, arguably, could have been made i f the reasonable person's viewpoint had been adopted. In conclusion, the way in which the artistic defence is interpreted ensures its perfect consistency with the radical feminist discourse.  Sopinka J.'s reference to the internal necessities test as one that provides a defence for material with an "artistic, literary or other similar  [unspecified] purpose"  72  confirms  once again that the pornographic expression that is targeted in s.163, according to the 10  71  Ibid. See infra note 111 and accompanying text.  38  interpretation o f the Supreme Court, is the one that can be regarded, from a radical feminist perspective, as threatening the value o f equality, rather than that which is simply prurient. In particular, it is the absence o f any redeeming capacity o f a possible political value o f the material that is telling. Contrast the internal necessities test o f or  Butler with the scientific, literary, artistic  political defence in the Miller standard o f American obscenity law, which is concerned  with material that "appeals to the prurient interest,"  73  i n a public morality/sexual propriety  perspective, and not with the undue exploitation o f sex running counter egalitarian values. The idea, i n American obscenity law, is that obscene material can be restricted because it is dirty, not because it conveys discriminatory messages. A t least at first sight, it makes sense to allow in the U . S . A . a possible political value to save the pornographic expression from criminalisation, while the same does not apply to the context o f Canadian obscenity law, that is concerned with suppressing discriminatory messages. In fact, discriminatory messages (as opposed to 'dirty' ones) are immediately and unequivocally perceived as political: it follows that adopting a 'political defence' would have utterly frustrated the objective o f s.163, i n that every sexually explicit representation found to be discriminatory under it would then have been salvaged by the redeeming force o f the political defence. (Incidentally, it is noteworthy that the fact of choosing to restrict material because o f its offensiveness in terms o f sexual propriety is itself a highly political decision. Indeed, every sexually explicit expression found to be obscene i n terms o f sexual propriety could be regarded as conveying a political message, in that it would have, precisely by virtue o f its being sexual, 'dirty,' the effect o f challenging currently accepted sexual norms- nay: the more offensive the representation, the more political its effect. Still, i n the U . S . A . sexual propriety-centred obscenity laws survive undisturbed by the political defences that they recognise -and which, consistently applied, would render such laws void just as recognising a political defence would practically invalidate s.163 i n Canada. I would suggest that this is so because the political character o f a message o f 'dirtiness' is less immediately perceivable as such than that o f a  72  73  Butler, supra note 1 at 486. Miller v. California, 413 U.S. 15 (1973), at 25.  39  discriminatory message: restrictions based on the sexual propriety rationale have become part o f common sense and dominant ideology, thus assuming a  patina o f neutrality, an  appearance o f their being the result o f a value-free choice).  4. Pressing and Substantial Legislative Objective & Rational Connection between the Obscenity Provision and the Objective of Preventing the Harm ofDiscrimination.  Since Sopinka J., by relying on radical feminist ideas, identifies the legislative objective o f s.163 i n the way described in section II (2) in this chapter, (i.e. avoidance o f the harm o f sex discrimination) and, as explained i n the same section, connects obscenity regulation with democracy, the proposition that the objective o f the obscenity provision is pressing and substantial -hence appropriate to override the constitutionally guaranteed free speech right- is a foregone conclusion for the Court. One o f the most common arguments advanced to question the desirability o f laws restricting obscene expression because o f its contribution to sex inequality and violence against women relies, however, precisely on the contention that there is no univocal evidence that shows a connection between the discrimination and mistreatment o f women on the one hand and the consumption o f pornography on the other. But i f the perspective informing the law is one o f radical feminism, these connections should be self-evident. Recall that dominance feminism is not merely a discourse about the harms o f pornography; it is a whole conception about society and the construction o f individual identities. M a l e supremacy is the rule; patriarchy is all-pervasive. The sexual sphere is central, and unequal relationships there established are reproduced in everyday life because the sexualization o f inequality makes inequality itself appealing. The messages conveyed by pornography speak o f the sexiness o f brutalising and objectifying women, and o f the legitimacy o f dominance/submission relationships. M e n absorb this and end up associating sex with violence and violence with pleasure, and believing the subjugation o f 'the other' as permissible and desirable. Sopinka J. does not go quite so far as giving such a radical feminist account o f the links between pornography and antisocial conduct, accepting instead that the social  40  science evidence relating to this issue is contradictory. This, however, as we shall immediately see, does not prevent the Justice from reaching the conclusion that the obscenity provision is rationally connected to avoidance o f harm, i.e. preventing antisocial conduct. W h y does the Court fail to follow radical feminism when it gets to the point  of  accepting  as  self-evident  the  connections  between  pornography  and  violence/discrimination? It is interesting to notice how the L a w , though appropriating radical feminist arguments to produce the juridical truth about pornography, seems at the same time unwilling to explicitly authorise Radical Feminism by way o f sanctioning its status as an autonomous discourse. This strategy is put into practice in two ways: 1) the juridical discourse, as it unravels in Butler, never declares expressly on which other discourse (i.e. precisely, as I argued, Radical Feminism) it is actually drawing (nor does it ever cite or mention a radical feminist author!); 2) the juridical discourse prefers to dispense with some o f the arguments o f the other discourse (i.e. Radical Feminism) on which it is otherwise drawing, where these arguments  are not un-problematically capable o f  appropriation by the L a w , which, in order to exploit them, would be obliged to name the original discourse in which they were developed. I would  argue that radical feminist conceptions about  the  links  between  consumption o f pornography and anti-social conduct belong precisely to that type o f arguments that the juridical discourse, i n order to credibly exploit, could not, because o f their complexity, surreptitiously appropriate, and would instead have to contextualize by describing the framework o f dominance feminism within which they took shape and in which they make sense. But the L a w does not want to recognise its subservience to Radical Feminism by expressly acknowledging that the truth about pornography that the L a w is producing is 'derivative' rather than original (partly, it seems to me, because it wants to retain a super-ordinated status for itself as a truth-defining discourse, and partly because it fears to lose credibility by referring to a knowledge, i.e. Feminism, that is not culturally dominant). Therefore the L a w finds other ways to accomplish the same result that an explicit appropriation o f those non-appropriable arguments would have led it to. Once again, achieving this result depends on the Court acceptance o f radical feminist  41  arguments  (other  than those  that explicitly  link violence and discrimination to  consumption o f pornography). Let us follow how Sopinka J. performs this operation. First, the Justice finds that a deferential attitude on the part o f the Court towards the Parliament's choice to achieve a constitutionally permissible objective by means o f s.163 is warranted because o f the low value o f obscene speech. The implication Tow value speech => deferential attitude' is part o f the typical judicial review discourse o f the Supreme Court. What is relevant, for our purposes, is the basis on which the Court assesses the value o f obscene speech. It is by relying on a characterization o f pornography that is akin to radical feminist understandings o f sexually explicit representation that Sopinka J. draws his conclusion about the low value o f the speech at issue. He then contrasts this characterization to the 74  alternative account provided by the British Columbia C i v i l Liberties Association, ending up disqualifying altogether the B C C L A ' s interpretation o f pornography by comparing it to an artefact, and by affirming that the contrasting (dominance feminism informed) approach describes the meaning o f pornography "more accurately." It is not difficult to 75  recognise here a 'claim to truth,' interpretative pornography:  76  which the Court makes by exploiting its authoritative  power. In other words,  Butler produces the juridical truth about  the Court considers the meaning conveyed by obscene material capable of  univocal interpretation and the category of obscenity itself is reduced to a homogeneous body. After and pursuant to making this universalising gesture the Court: a) can affirm that the (single and univocal) meaning o f obscenity makes it a low value type o f expression, which finding i n turn calls for a deferential attitude on the part o f the Court;  It is noteworthy that, in thus characterising pornography, the Court does not refer expressly to any radical feminist commentator, but rather quotes the statements of another Judge in a previous case: Butler, supra note 1 at 500. This self-referential attitude of the juridical discourse -that here takes place outside the of the operative scope of the principle of stare decisis, and works, indirectly, as a de-authorization of Radical Feminism- seems to confirm the contention that the Law, however much it wants to exploit the regulative potentialities of other discourses, does not want to yield its power to such other discourse. Ibid. Sopinka refers to the BCCLA's account of the meaning of pornography as to "the picture which the British Columbia Civil Liberties Association would have us paint" (emphasis added): ibid. John Stuart Mill would have called it 'a presumption of infallibility.' 74  75  16  42  and  b) can engage logically in a discourse about the social evidence relating to the links  between exposure to obscene material and sex discrimination. A s to point (b), my contention is that i f the Court had recognised from the beginning that obscene material is open to diverse interpretations and conveys a variety o f different and contradictory meanings, a discourse about the existence o f social evidence relating to the link between consumption o f pornography and antisocial conduct (sex discrimination and violence) might have appeared not relevant at all. Since, on the contrary, a totalising meaning o f pornography is given by the Court relying on dominance feminism conceptions, Sopinka J. can proceed with evaluating how this univocal meaning impacts on social life. He does so by referring to the inconclusiveness o f social evidence findings: this, 77  as the ' l o w value speech' factor, justifies deference to Parliament in deciding whether there is a rational connection between the criminalization o f pornography and the avoidance o f antisocial conduct, again according to a settled judicial discourse about constitutional adjudication (controversial issues => deferential attitude ). 78  Both the contextual factors o f ' l o w value speech' and 'controversial issues', whose believed relevance to the present case is respectively based and premised, as illustrated, on a radical feminist understanding o f the meaning o f obscenity, are therefore used to call for deference to the legislature in assessing a rational link between s.163 and avoidance o f sex discrimination and violence. This means, basically, that a relatively loose standard o f 'reasonableness'  is all that the legislative choice o f criminalizing  The relationship between the Law and the Social Sciences is less problematic than the one between the former and Radical Feminism. Radical Feminism is in some way a threat for the Law, because of the former's critique of the status quo and liberal juridical systems (which however does not prevent radical feminists from being considerably less than altogether sceptical as regards the emancipatory possibilities of recourse to court litigation, as LEAF'S activity in the Butler case testifies to). Possibly, the Social Sciences (and the disciplinary power that accompanies them) have instead proven more useful than dangerous allies of the Law: see C. Smart, supra note 33 at 14-20. The Law, therefore, can afford reinforcing their already well-established authority by lending them its own, as it does in the act of naming them to recognise as 'true' their authoriattive interpretation of reality. So social science evidence is generally considered admissible in the courtroom, and Sopinka J. comfortably refers to it when it comes to establishing the links between consumption of pornography and anti-social conduct. No need to remark that this implication works, at the same time, as a formidable abdication of responsibility on the part of the Court. 77  78  43  obscenity must  meet, i n order  for a 'rational connection' to be f o u n d .  Such  9  reasonableness is eventually found, cursorily referring to vaguely psychological notions of "desensitization o f individuals exposed to materials which depict violence." A n d this 80  finding is i n perfect accord with the perspective o f radical feminism adopted all the way through by the Court, considering, for instance, the ideas o f dominance feminism about the rather tottering state o f the critical powers o f men's consciences.  5. Minimal Impairment of Freedom of Expression Effected by s. 163.  It is arguably adopting the same deferential attitude motivated by the radical feminist perspective relied upon by the Court i n considering the aforementioned contextual factors that Sopinka J. considers whether s.163 is constitutional under the respect o f its minimally impairing the right to free speech. W i t h reference to the requirement o f minimal impairment, deference means that the measure w i l l meet this standard as long as it is "appropriately tailored" to the objective o f avoiding harm. A n d 81  82  'appropriately tailored', the measure o f criminalization is easily found to be. First, dominance feminist notions about the meaning conveyed by obscenity, and about the consequent relation between antisocial conduct and exposure to obscenity, justify implicitly the Court's statement that only "material that creates a risk o f harm" falls into the net o f s.163:  83  a different, more varied perspective on the meaning o f  pornography and on the links between its consumption and antisocial conduct might as well have led the Court to an opposite conclusion.  It should not be overlooked that 'reasonable' is different to, and arguably is something less than, 'rational', and therefore what a deferential attitude on the part of the Court achieves is actually a dilution of the standard used to test the constitutionality of a provision, albeit concealed behind a retention of the same heading - 'rational connection.' 79  80  81  Butler, supra note 1 at 505. Ibid.  No need to underscore the sea of difference existing between 'appropriate tailoring' and 'minimal impairment.' The latter term should clearly mean that the measure, as long as it effectively addresses the harm avoidance of which constitutes the legislative objective, should be the less restrictive on the freedom it affects. Appropriate tailoring is a much less rigorous standard. 8 2  83  Butler, supra note 1 at 505.  44  Second, the artistic defence, appropriately interpreted (as above explained) i n a way functional to radical feminist concerns, is relied upon in order to show that material which does not deserve criminalization is not caught by s.163. Third, an identification o f the harms that in a conceptual framework o f dominance feminism pornography creates (discrimination and degradation) is used to deny the reasonableness o f time, place and manner regulation (which would leave these harms untouched) as a measure alternative to criminalization. Fourth, i n a perspective quite consistent with a radical feminist sort o f distrust in men's critical conscience, education alone is considered an inadequate response to the bad influences o f pornography, and it is found to require support by s.163 o f the Criminal Code (which Sopinka J. calls, here, in a neutral and generic way, "legislation," in the 84  hardly successful attempt to half-erase the idea o f a violent impact on individual rights that is associated with the criminal law; and maybe also with a view to dissociate 'education' from 'legislation,' -as i f the former, conceived as a remedy to discrimination, did not depend on the latter- so as to make appear educational measures as a somewhat less official, and therefore less reliable, way to deal with the problem). In this part o f the analysis o f the constitutionality o f s.163, however, also the only true inconsistency o f the Court's reasoning with a dominance feminism perspective is to be found. When, with the aim o f further proving the appropriate tailoring o f the obscenity provision, the Court upholds the view that private possession and consumption o f obscene material is not actionable under the section, the radical feminist discourse is suddenly dropped: it is apparent that i f the harm to be avoided is change i n attitudes and conduct, it is precisely the consumption o f the material which is the crucial stage, where the 'imprinting' process takes place, and that thus requires being eliminated. A t any rate, this does not have the effect o f rendering the decision ambiguous in terms  o f its mixing public morality/sexual propriety considerations with radical  feminism/egalitarianism concerns. Rather, the Court's support for the non-criminalization o f possession is consistent with a civil libertarian approach to the problem, and not with one informed by conservative morality.  45  Besides, as the British Columbia Supreme Court explained in Little  Sisters,  there is nothing i n Butler that suggests that the dissemination o f obscenity is not criminal conduct i f the end result is personal use o f that material . . . Indeed, it is that very result that the criminalization o f the dissemination o f obscenity is intended to prevent. It is the use o f obscenity by individuals that produces harm to society ... The criminalization o f the propagation o f obscenity has as its aim the limiting or preventing o f such use. 85  If this is the case, the radical feminist philosophy o f the decision is not contradicted  even  i f personal  consumption  o f obscene  material  is not directly  criminalized.  6. Balancing Avoidance of Harm and the Deleterious Effects of s. 163.  Even i n the very last step o f the test determining the constitutionality o f s.163, dominance feminism considerations play a major role. In balancing the importance o f avoiding discrimination/violence-related harms against the deleterious effects o f the obscenity provision on individual rights, Sopinka J. justifies his deciding that the former outweigh the latter by stating that the expression at issue "appeals only to the most base aspect o f individual fulfilment." This should not be 86  taken, in m y view, to point towards the immorality o f finding pleasure i n sexually explicit materials.  87  Rather, given the previous clarification provided by the Court as regards the  objective o f the obscenity provision, and the overall radical feminist philosophy o f the judicial discourse in the  Butler decision, it is more plausible that the "most base aspect o f  individual fulfilment" stands, in this case, for the pleasure taken i n the sexualization o f dominance and submission.  Ibid. at 508. Little Sisters, supra note 18 at 533.  M  85  86  Butler, supra note 1 at 509.  Cossman, on the contrary believes that "Sopinka J. seems to endorse the position advocated by the Ontario Attorney General, which ... described this most base aspect of self-fulfilment as phisical arousal:" B. Cossman, "Feminist Fashion or Morality in Drag? The Sexual Subtext of the Butler Decision" in B. Cossman, ed., supra note 8, 107 at 122. 87  46  ( III: The Impact o f Butler on Lesbian and Gay  Pornography.  A s I have attempted to show, the conceptual framework within which Butler was decided is one informed, all the way through, by a consistent radical feminist perspective. Considering  the  whole  decision,  Sopinka J.  develops  a  justification  constitutionality o f s.163 which does not rely on elements o f social conservatism.  of  the  88  Therefore, i f subsequent decisions have restricted the sexually explicit expression of sexual minorities, i n particular o f gay men and lesbians, it is not because the Butler decision, properly understood, is ambiguous and lends itself to conservative ends; it is because, either the Butler decision was blatantly misapplied (when the restriction targeted homosexual pornography that did not involve objectification, dominance and submission, or violent themes), of because suppression  was, in a radical feminist  view, actually  required in the light of the content of the homosexual sexually explicit material (which anti-pornography advocates have shown often reiterates sexist and homophobic themes).  Cossman, as already mentioned (see supra note 52 and accompanying text), advances a different, and eloquently argued, interpretation. Her emphasis is on the subtext of traditional morality that pervades Butler. I do not think, however, that the substance of her analysis is always in contradiction with mine (although sometimes it is, see previous note). One reason is that, if my understanding of radical feminist arguments is correct, at least part of Cossman's observations apply not only to the Butler decision, but also to the conceptions of Dominance Feminism itself. For example, the binary opposition bad sex/good sex, which Cossman conceives as a typical element of traditional morality, besides underlying the Butler decision, (see B. Cossman, "Feminist Fashion or Morality in Drag? The Sexual Subtext of the Butler Decision" in B. Cossman, ed., supra note 8, 107 at 121-22, 127) also informs anti-pornography feminism (to the extent that radical feminists condemn the objectification -intended as the absence of a human/spiritual dimension- that characterises pornographic -i.e. 'bad'- sex). This dependance of dominance feminism on conceptions and assumptions that have first been elements of traditional morality does not make the former a copy of the latter, as there are obvious, important differences; it simply proves that radical feminist discourse did not develop in a vacuum. The Butler decision, in drawing on radical feminism, contains both novel, original conceptions (contributed by radical feminism itself) and a limited set of pre-existent elements of conservative morality that are not only compatible with radical feminism's original contributions, but were also necessary for those novel contributions to be built in the first place. In this sense, I would still defend my contention that Butler is not an ambiguous decision, is not "morality in drag:" the elements of moral conservatism that are present in it, as they are those that have been reinscribed by radical feminism within its own framework, and thus critically re-elaborated, can, in my view, more accurately be described exactly as radical feminist ones rather than public morality/sexual propriety concerns. This is the sense in which I have been, and will go on, both drawing a distinction between radical 88  47  In my view, for example, the decision delivered in  Glad Day Bookshop v.  Canada* that "even Advocate Men, the gay male equivalent to Playboy" was obscene 9  90  (whatever the judge's personal reasons for believing so) could be regarded as an altogether justifiable conclusion in the light o f radical feminists' critique o f soft-porn such as, precisely, Playboy, which is by them understood as far from being innocent o f objectification and fragmentation o f the female body. Only i f the incriminated issues o f Advocate Men, unlike Playboy, did not reduce human beings to their bodily parts, did not portray relationships devoid o f any spiritual/emotional dimension, or otherwise avoided objectification/degradation, the ratio o f the judge's decision could be thought to have been inadmissibly informed by a view o f conservative morality. But i n that case we would be facing a in  misapplication o f the precedent established  Butler, for this is clear and peremptory in denying any citizenship, within the obscenity  discourse, to decisions justifiable only on the basis o f community standards inspired by social conservatism. Likewise, the decision in  R. v. Scythes, where it found obscene lesbian 91  representations o f S & M , can be considered consistent with the precedent  Butler, although  not i n terms o f the former decision exploiting a supposed potential o f the latter for repressing explicit sexual expression considered 'prurient' or 'improper' from a public morality perspective. Rather, in condemning lesbian S & M ,  Scythes is faithful to Butler in  so far as the latter follows radical feminist arguments, a strain o f which, by emphasising considerations  about  women's  false  consciousness,  does  not  exempt  lesbian  representations o f explicit sex from the general operation o f the principles identifying bad pornography: "Consistent with anti-porn feminists who have historically identified s/m as the 'epicentre o f harm, during the Bad Attitude trial the Crown (and the judge) relentlessly 1  feminism and traditional morality and contending that Butler is informed by the former, but not by the latter. (1992) O.J. No 1466 (QL). B. Cossman, "Feminist Fashion or Morality in Drag? The Sexual Subtext of the Butler Decision" in B. Cossman, ed., supra note 8, 107 at 131. (1993) O.J. No. 537 (Ont. Ct. Prov. Div.).  8 9  9 0  91  48  centred and recentred sadomasochism [which in this case happened to be lesbian S & M ] as evil incarnate."  92  For the same reasons, the judgement in Little Sisters can be seen as consistent with the egalitarian concerns and radical feminist assumptions o f Butler, where it failed 93  to read down, to the extent that they applied to homosexual pornography, the legislative provisions allowing customs officers at the border to seize and detain obscene material as defined i n s.163(8) o f the Criminal Code.  94  Far from being shaped by public morality considerations, the decision arguably recognised the conservative bias (avoiding to expressly qualify them as such, however) on the part o f Canada Customs officials against homosexual material crossing the border.  95  A discriminatory impact on homosexuals and an infringement o f their free  speech rights was held to follow precisely as a consequence o f the arbitrary or mistaken implementation, on the part o f Customs officers, o f the provisions at issue: gay and lesbian pornography was found to be unjustifiably subjected to a higher degree o f scrutiny and to harsher standards o f review than those reserved by officers to straight pornography. The legislation itself, however, as opposed to its administration, was not regarded as either unjustifiably infringing homosexuals' freedom o f expression or treating them  B.L. Ross, '"It's Merely Designed for Sexual Arousal':* Interrogating the Indefensibility of Lesbian Smut" in B. Cossman, ed., supra note 8, 152 at 158. A different interpretation is provided by Joel Bakan, who places Little Sisters among those decision following Butler and exploiting what he sees as the potential of this leading case for legitimising repression of non-mainstream sexually explicit material on the basis of public morality considerations: J. Bakan, supra note 52 at 75-6. The provisions at issue in the case were ss. 58 and 71 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and s. 114 and Code 9956(a) of Schedule VII of the Customs Tariff, S.C. 1985, c. 41 (3rd Supp.) (now s. 136(1) and tariff item 9899.00.00 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, S.C. 1997, c. 36). "Imported shipments destined for those [i.e. homosexual] bookstores are methodically identified and scrutinized by customs officers. Moreover, estimates ... of the proportion of all materials they detained ... that were produced for homosexual audiences ranged form 20% to 75%, a proportion far in excess of the relative size of the [minority] group [concerned]. Further, a disturbing amount of homosexual art and literature that is arguably not obscene has been prohibited:" Little Sister, supra note 18 at 553-4. "[S]ome customs officers have from time to time exercised their discretion in an arbitrary and improper manner. Books have been prohibited without any proper consideration of whether the exploitation of sex was undue ... Materials have been routinely prohibited on the ground that depictions ... of anal penetration are obscene:" ibid, at 559. 9 2  9 3  94  95  49  discriminatorily; therefore a sentence invalidating the provisions at issue -as opposed to a declaration o f unconstitutional administration- was not issued. The  Court's  failure to  declare  unconstitutional the  legislative provisions  challenged by the Little Sisters bookshop and the B C C L A was premised on those conceptions that, informing the  Butler decision, are consistent with the radical feminist  belief according to which an exclusive, univocal interpretation can be un-problematically placed on all sexually explicit material -whether straight or not- that presents certain features -dominance/submission themes, degradation, objectification, etc.- (this belief obviously justified as well the Court's view that there is an objective way for Customs officers to give proper application to the legislation, i f they are properly trained):  96  [T]he plaintiffs submission that pornography produced for homosexuals audiences is not within the ambit o f the Butler decision cannot be accepted ... There is a body o f social science evidence that would support Parliament's reasoned apprehension that obscene pornography produced for homosexual audiences causes harm to society ... Butler has settled the point that there is a rational connection between s. 163(8) o f the Criminal Code and the objective o f preventing obscenity, both heterosexual and homosexual. 97  Since homosexual pornography can be obscene -i.e. exploit sex unduly in a radical feminist sense- the infringement on lesbians' and gay men's free speech rights was held constitutionally justifiable on the same grounds that, according to  Butler, warranted the  limitation o f the rights o f consumers/producers o f obscene material in general. Similarly, the judge's discussion o f the discrimination question focused on whether the  disproportionate impact o f the legislation on gay and lesbian obscenity was  discriminatory (which it was not found to be), seemingly taking for granted that the fact o f whether the legislation should apply to homosexual pornography at all (because o f its peculiar characteristics) was not even an issue.  See ibid, at 555. Ibid, at 538, 540,  542.  50  IV: Differences between Homosexual and Heterosexual Pornography.  Even accepting the harmfulness o f straight pornography as radical feminists describe it, is it really the case that we should consider gay and lesbian pornography equally harmful? Aren't there important differences? Obviously, the specificity o f the homosexual context, i n considering obscenity regulation motivated by egalitarian/radical feminist concerns should not be overlooked; however, it should not be overrated either. Let us consider the case o f gay male pornography, and try to make some observations that could constitute a starting point to claim a peculiarity for gay porn that would exempt it from regulation. The most apparent trait o f male homosexual pornography is the absence o f portrayal o f cross-gender relationships. Isn't this, by itself, sufficient to dispel any preoccupation about its contribution to gender oppression? A n d isn't the non-dominant position o f homosexuals likely to make their own sexual representation sensitive to issues of oppression and discrimination? But we already know the radical feminist response to these remarks: the absence o f cross-gender relations from the representations is not decisive, as sexism, relying on the internalisation o f dominant ideology, can easily push its way through same-sex sexual relationships and their portrayal: this is arguably proven both by the use pornography makes o f sexist language, and by the submission/degradation o f the 'feminised' one(s) i n the sexual intercourse portrayed i n gay porn. Another distinctive feature o f gay pornography is that sexual expression is often perceived  as absolutely central to homosexuals'  collective self-definition.  98  This  peculiarity is not difficult to explain, considering that the 'autonomous' identity o f 'gay' rests on the historically antecedent 'heteronomous' category o f 'the homosexual', that was socially constructed i n such a way as to give a central role precisely to sexuality (which,  See, e.g., the judge's statements to this effects in Little Sisters, supra note 18 at 522.  51  in turn, is constructed so as to include desires, bodies, acts etc.).  99  But then doesn't this  mean that control over their own sexual representation, since it lies at the very core o f the collective self-definition o f their own identity, is vital for the emancipation o f gay men, who are a historically disadvantaged group?  100  A radical feminist could answer with an alternative set o f questions: how acceptable is gay men's emancipation where it contributes to keeping women in chains? Do not homosexual men, by virtue o f their maleness, participate at least in some o f the privileges o f their sex, and aren't these privileges instead denied to women by virtue o f their being women? Considering the pervasiveness o f patriarchy and precisely gay men's less than complete exclusion from the prerogatives and power o f masculinity, isn't gay male sexual expression highly likely to be imbued with rape themes and sexism? Wouldn't consequently a gay identity constructed through the aid o f pornography be built on ideas o f dominance/submission and assumptions o f gender hierarchy, and wouldn't it end up incorporating not only sexism, but also, in a rather schizophrenic fashion, a great deal o f homophobia? Still another difference between gay male sexually explicit representation and straight pornography are the different sites o f their production and consumption. Gay material, i n particular, is produced and enjoyed within the homosexual community, that is  The category of homosexuality developed, towards the end of the XIX century, in the context of the 'psy' professions. According to these disciplines, the truth about oneself was revealed by the expert's interpretation of what the patient confessed as regarded his/her sexuality: see M. Foucault, The History of Sexuality, supra note 35 at 42-43 and 53-73. See also the factum submitted by EGALE in the Little Sisters trial before the Supreme Court of Canada: "[§ 12:] Censorship of sexually explicit material has a distinct and more detrimental effect on us than on the majority heterosexual population because the material serves a unique role in our communities. As Judge Smith concluded, lesbian, gay, and bisexual imagery and text normalize sexual practices that society considers to be deviant, provide affirmation of our sexualities, and serve as a socializing and politicizing force within our communities. Mass-market heterosexual pornography does not function in the same way for members of the heterosexual population, whose sexuality is widely and positively represented in other aspects of Canadian culture (eg. in mainstream film and theatre, on billboards, and in fashion magazines):" 99  100  In The Supreme Court of Canada (On Appeal from the Court of Appeal of British Columbia) between: Little Sisters Book and Art Emporium, B. C Civil Liberties Association, James Eaton Deva and Guy Allen Bruce Smythe -Appellants- and Minister of Justice, Attorney General of Canada, and Minister of National Revenue, and Attorney General of British Columbia -Respondents- Factum of The Intervener Egale  Canada Inc., online: EGALE <www.egale.ca/~egale/legal/littlefacmm.htm> [hereinafter EGALE Factum].  52  arguably less involved i n discrimination and violence against women. ' From a radical 10  feminist viewpoint, however, this means only, at most, that the harmful effects o f gay pornography do not take place on such a large scale as those o f straight pornography. Still, they take place. For every argument that claims a specificity o f meaning for male homosexual pornography, another argument can be made, from another perspective, such as one o f radical feminism, highlighting that the same general considerations work for the interpretation o f both heterosexual and gay sexually explicit material. A s we have already seen, besides, for every radical feminist argument that claims a specificity o f meaning for female homosexual pornography, another argument can be made, from  a more orthodox radical feminist perspective, that the same  general  considerations work for the interpretation o f both heterosexual and lesbian sexually explicit material.  A n y contention such as "homo-erotism, by definition, does not involve heterosexual representation and thus cannot eroticize a gendered power imbalance o f male domination over w o m e n , "  102  or any such generalising statement as " i n the lesbian  materials... [cjonsent is not the end o f the matter [and there is] an ongoing interrogation of the actual quality, comfort and well-being o f the parties involved,"  103  or "gay  representation ... reveals the contingency o f the relationship between signifiers and signified",  104  or "[i]n Sex, Madonna's blonde ambition drapes itself over the dangerous  Such an argument was advanced, e.g., in the appellants' factum submitted to the Supreme Court of Canada in the Little Sisters trial: "[§ 62-3:] Gay and lesbian pornography can be distinguished from mainstream pornography in many ways. The entire framework of production, exhibition and consumption is different... Erotica produced for a homosexual audience does not and cannot cause the kind of antisocial behaviour generally or through stereotyping and objectification of women and children that Parliament apprehended might be caused in heterosexual obscenity:" In the Supreme Court of Canada 101  (on Appeal from the Court of Appeal for British Columbia) between Little Sisters Book and Art Emporium, B.C. Civil Liberties Association, James Eaton Deva and Guy Allen Bruce Smythe -appellants (plaintiffs)and Minister of Justice and Attorney General of Canada, Minister of National Revenue, Attorney General of British Columbia -Respondents (Defendants)- Appellant's Factum, online: BCCLA  <www.bccla.org/lsfactum.html> [hereinafter Appellants' Factum]. EGALE Factum, supra note 100 at § 40. J. Fuller & S. Blackley (N. Pollack, ed.), supra note 42 at 66 (the statement here reported was done by Ann Scales during the Little Sisters trial, excerpts of which are contained in Restricted Entry). C F . Stychin, supra note 9 at 67. 102  103  104  53  transgressive sexuality o f two radical leather dykes, titillating straight sensibilities ... at the same time underscoring that this experience is a mere throw away-change,"  105  and, in  general, any suggestion to the effect that sexual political correctness is the banner and privilege o f the category 'homosexual (or gay male, or lesbian) sexually explicit representation'  as opposed to  'heterosexual pornography'  sound (almost) just  as  unacceptable (and annoying) a claim to truth as is the radical feminists' idea that a single, univocal meaning -an unequivocal 'dominant characteristic'- can be attached to all S & M , or to all obscene material, be it straight or queer. Both positions are deeply essentialist.  106  I am not suggesting that we should stretch the contextualization called for by postmodernism to the point o f rendering whatever category meaningless and losing sight o f broad patterns o f sexist discourses and practices. But surely attempts at drawing a rigid distinction between L & G and straight porn in order to exempt the latter from radical feminism-inspired critiques are a whit redolent o f self-interest, and o f abdication o f responsibility.  V : Regulation or De-Resulation?  But what should we do then? The alternative o f taking an even more essentialist position that places a single meaning on the majority o f both heterosexual homosexual  pornography,  such  as  the  radical feminist  refrain  'pornography  and is  discrimination,' is, i f anything, even less appealing. The value o f pornographic expression is so controversial that one wonders how a democratic system can do otherwise than allowing different individuals to place different meanings on different instances o f different kinds o f pornography,  107  and thus let the  merits o f sexually explicit representation be assessed publicly.  B.L. Ross (quoting Susan Stuart), '"It's Merely Designed for Sexual Arousal':* Interrogating the Indefensibility of Lesbian Smut" in B. Cossman, ed., supra note 8, 152 at 170. At least when the irreducibility of the merits of lesbian/gay porn is framed within a postmodernist discourse, however, these statements may well not be meant to describe the invariable nature of all homosexual sexually explicit expression. In this sense the state could pursue diversification of the producers of pornography by encouraging productions from non-mainstream organizations. 105  106  107  54  This position, o f course, is tenable only under the condition that we reject any degrading and dehumanising suggestion o f women's and men's critical powers being necessarily weak or non-existent. I f the idea o f an ontological free w i l l sounds outdated, it seems impossible to imagine any human interaction and political engagement severed from a notion o f agency. I f power is at work through different discourses that constitute us i n a never-ending process, even i f we are merely a position i n discourse, there is power in that position as well. A n d i f power is fluid, there is room for us to frame discourses about sexuality and for them to frame our sexuality i n turn.  The problems o f the  Butler decision do  sub-textual  sexual  bigotry  108  not lie with its concealing a heart o f moral  conservatism behind a facade o f sex egalitarianism. In the supposedly  new  that poses  Butler decision,  a hazard  for  lesbian  it is not a and  gay  pornography. The true heart o f the judgement is, I believe, egalitarianism as promoted by radical feminism.  Poststructuralist accounts of subjectivity hold that the subject itself, being constituted by power through discourse, participates in power. Discourses make the subject possible and give meaning to the subject; but this meaning is not fixed and determined once for all: the subject is said to be the very possibility of resignification. This should be understood as the notion of no discourse being all powerful and monolithic: discourses have, as it were, seams, crevices and interstices, and that is were the subject can turn the discourse against itself and change it, and thereby itself undergo a process of resignification. Subjective agency, that is, is not denied: only, through a process of deconstruction, the idea of a subject prior to discourse should be put into question, and therefore, along with it, an idea of agency which presupposes a subject merely situated in, instead of constituted by, discourse. Agency is not an ontological quality inherent to the subject which employs it against a reality which is outside the subject itself: agency is the construction of a discourse that claims that a subject with agency is pre-given, and this is, paradoxically, what makes agency possible. Therefore, a postmodern critique of ideas of primary agency {i.e. of an agency that precedes discourse) is made possible by the very discourses that the postmodern critic aims at displacing, and that constitute her as a subject with agency. In this sense, agency should be understood in connection to the poststructuralist notion of the constructedness of the subject. The construction of the subject is seen as a somewhat artificial process that erects an apparent division between the subject itself and the discourse from which the subject is 'extracted' through a cultural process of disavowal of the subject's dependency on (i.e. of construction by) the constituting discourse. The construction of the subject is but the concealment of such a process: it is this concealment that allows one to think of a pre-given subject in the first place. The way in which discourses interact in constituting subjects gives rise to a combination that allows for other discourses to be elaborated, because no discourse is complete and perfect in itself, and because the constitution of a subject is a never-ending process: for these concepts, see J.P. Butler, "Contingent Foundations: Feminism and the Question of Postmodernism" in J.P. Butler and J.W. 108  Scott, eds., supra note 32, 3; and N. Fraser, Justice lnterruptus: Critical Reflections on the 'Postsocialist'  Condition (New York: Routledge, 1997) at 207-223.  55  There is some sense in a radical feminist interpretation o f obscenity. It is undeniably possible to interpret some pornography (even i f soft-core, even i f queer) as conveying sexist and/or homophobic meanings. The same is true for a wide variety o f other kinds o f speech, for that matter.  109  I think that critiques about the vagueness and indeterminacy o f such expressions as "undue exploitation o f sex," or "degrading and dehumanising" tend to be misplaced, too. Since  Butler adopts a radical feminist perspective, it makes sense to read in those  categories consistent radical feminist meanings. Critiques about the indeterminacy o f the categories relied upon in the decision assume that the philosophy underlying Butler is ambiguous. Once it is acknowledged that  Butler is clearly informed by dominance feminism, however, the determination o f the meaning o f these categories from a radical feminist viewpoint takes the place o f what we would otherwise have perceived as the indeterminacy o f their meaning (admittedly, lesbian portrayal o f explicit sex would maybe remain a contested kind o f pornography, as radical feminists do not agree about its merits). Since sexist meanings, objectification, submission etc. are more common than we are instinctively prepared to recognise, all we have to do is accept the fact that the undue exploitation o f sex and the other categories reach a large range o f explicit materials, including "even Advocate Men, the gay male equivalent to  Playboy - and yes, Playboy itself. ,,no  In this sense the precedent o f  Butler is misapplied when decisions fail to  incriminate Playboy, rather than when they incriminate Advocate Men: as before clarified, in fact, the community standards that a court should take into consideration when deciding the harmfulness o f pornographic material are those limited sets o f opinions that reproduce radical feminist understandings o f pornography, as the moral conventions o f a community can constitute a legitimate basis to limit a  Charter right only where they find  support in another Chater value/right. A s we have seen, this is exactly the case with s.163 This observation, of course, already suggests something as regards the problem of obscenity regulation. Carol Smart, without denying -actually: highlighting- the harmfulness of sexist representation, argues: "It is ... the case that if we direct ourselves to the problem of the extension of the pornographic genre [i.e. advertising, soap operas, romantic novels, etc.] rather than pornographic material as such, then the law as a possible remedy appears less and less useful:" C. Smart, supra note 33 at 136. ' See supra note 90. 109  10  56  as reinterpreted i n Butler that, in restricting pornography on the basis o f the harm it does to women, subscribes to a radical feminist conception o f sex representation, that can be supported by s.15 (the equality clause) o f the Charter. The fact that the community standards thus reflected i n a court's assessment o f a given instance o f pornographic material end up representing the community's beliefs in a highly selective fashion becomes immaterial. In  fact,  applying community  standards to define  what  is degrading and  dehumanizing means applying them to identify which material creates the risk to bring about harm to (=mistreatment o f + violence to + discrimination against) women, children and perhaps (certain) men (these are, the Court says all along, the evils that s.163 is aimed at addressing). Since the very idea that pornography creates these harms makes sense only within a radical feminist framework o f analysis, it is only by applying the same framework for analysis that we can identify which material creates a risk o f harm, i.e. which one exploits sex unduly or is degrading and dehumanizing. In other words, the only standards o f the 'community as a whole' that are relevant in order to identify what constitutes the undue exploitation o f sex are radical feminist standards.'"  W h i c h is the real problem with s.163 as (re)interpreted in Butler? The problem, i n m y view, is that it looks altogether arbitrary to single out sexist meanings among others and consider them 'dominant' in the material in question. To fully appreciate what I am arguing here, we have to go back to s.163 (8). This provision proscribes the undue exploitation o f sex when it is a "dominant characteristic" o f the material at issue. A s we already know, not only the decision about  Sopinka J., after describing the three categories into which, he says, pornographic material can be classified, states: "Some segments of society would consider that all three categories of pornography cause harm to society because they tend to undermine its moral fibre. Others would contend that none of the categories cause harm. Furthermore there is a range of opinion as to what is degrading and dehumanizing." This, of course sits at odds with the claim that community standards can determine what the community as a whole tolerates Canadians being exposed to. But if this claim is qualified by specifying that "[t]he courts must determine as best they can what the community would tolerate others being exposed to on the basis of 111  the degree of harm that may flow from such exposure" and harm is further identified throughout the  decision as being harm in radical feminist terms (see e.g. Butler, supra note 1 at 497 and 507), then it seems obvious that the relevant community standards are selectively chosen to represent radical feminist understandings. For the quotations reported see Butler, supra note 1 respectively at 484 and 485.  57  I  whether a work exploits sex unduly, but also that about whether such exploitation is a dominant characteristic in the wojrk is made by applying the community standards test."  2  O n the other hand, we have already seen that the community standards are really a radical feminist subset o f those standards. N o w , from a radical feminist perspective,  pornography is discrimination (to the point o f each becoming the other's synonym). 113  N o other legitimate meaning can be attached to obscenity. It follows, in m y view, that the requirement posed by s.163 that the undue exploitation o f sex be the dominant trait o f the material turns into a requirement that the undue exploitation o f sex be merely present: where the undue exploitation o f sex is there, discrimination is there, and i f discrimination is there, then the material becomes obscene and prohibited. That is to say, where anything perceived as an element o f undue exploitation o f sex is present, it seems that it would automatically become the dominant characteristic o f the speech, and no balancing between sexist meanings and other meanings is actually required on the part o f the judge. To require it, would be inconsistent with a radical feminist perspective, and with the rationales of the  Butler decision.  Given the degree o f controversy that exists among feminists themselves as to the meanings and the effects o f pornography, privileging in the way just explained one reading and automatically deriving from it such drastic consequences as the use o f the criminal law and the restriction o f such a vital right for individuals and groups, especially minorities,  as  freedom  of  expression  is  quite  as  unwarranted,  totalising  and  foundationalist as, say, defining a woman on the basis o f her capacity for impregnation."  4  It is a universalising move, and an unacceptable claim to truth, much more so that the specific meaning thus singled out as the dominant characteristic o f obscenity entails necessarily, at the same time, the preliminary acceptance o f very particular, and very  " See the discussion in section II (3) of this chapter. Here 'pornography' is meant as 'bad pornography,' as opposed to 'good pornography' (or 'erotica'); in the Court's terminology we would be speaking of 'obscenity' as opposed to non-obscene pornography. Emphasising the importance of free speech for minorities is not just orthodox free speech rhetoric (which, at any rate, is not destitute of merits): if the social world and we ourselves are constituted through discourse, an effective way of empowering minorities, included sexual minorities, in order to assist them in contributing to the construction of a less oppressive social reality, is to let them be free to speak. For the arbitrariness of defining the category 'woman' on the basis of the notion of reproductive capacity see supra note 37. 2  113  114  58  debatable, 'truths' about society as a whole, individual capacity for independent criticism, the centrality o f sex, the sameness o f fantasy and action. Consider, also, that the L a w , as illustrated in section II (4) o f this chapter, avoids referring explicitly to the discourse on which it draws (i.e. Dominance Feminism) in order to justify the legislative regulatory measure at issue. It could be argued that the acceptance, on the part o f the Court, o f one particular world-view at the cost o f the disqualification o f a range o f others would at the very least have required a more open and direct defence. This is especially true i f we consider that the whole o f the radical feminist narrative about pornography (expounded in s. I o f this chapter) depends on the basic  assumptions  about  the  all-pervasive, unrivalled  power o f patriarchy  (as  distinguished from the widespread presence o f sexist practices and discourses) and the central role o f sex in moulding social reality;' but precisely these points in the radical 15  feminist discourse are far from being the least contentious- both in m y view and, as already suggested, in a number o f feminist accounts. The operation performed by the Court is also a presumption o f infallibility in that it disqualifies different evaluations about the worthiness o f different sexual practices. For example,  S&M  becomes  by  definition  unacceptable  because  it  involves  dominance/submission themes; and another assumption o f the radical feminist model is that sexual objectification is invariably bad. Still, there are objectification  in the  accounts field  challenging a negative  evaluation o f S & M and  o f sexuality. The latter, besides  or instead  discrimination, may point to "the sexual power women wield over m e n , " "  o f sex 6  while  sadomasochism, far from degrading the bottom, can be thought to "underscore . . . the willingness o f the individual to entrust his sexual subjecthood to another and to allow the boundaries o f his autonomy to be undermined, knowing that he w i l l reappear no less a subject.'"  17  Such a notion, for example, can be radically reconsidered if we acknowledge the constructedness of the category sex and sexuality. S. Bell, "On ne Peut Pas Voir lTmage [The Image Cannot Be Seen]" in B. Cossman, ed., supra note 8, 199 at 201; quotation originally contained in C. Paglia, "Rape and the Modem Sex Wars" in Sex, Art and American Culture (New York: Vintage Books, 1992) at 66. C F . Stychin, supra note 9 at 71. 115  116  117  59  Furthermore, by supporting a radical feminist foundationalism, the law, through the  Butler decision, is actually contributing to the construction o f oppressive social and  sexual identities: again, S & M practitioners, e.g., are being labelled as 'dysfunctional', and perceived as enacting 'antisocial conduct,' even i f the activities they engage in are consensual and do not affect others in any meaningful way.  The assumptions and conclusions o f radical feminism are not true or false in any ordinary sense. They are, rather, political: even social sciences findings that would confirm the existence o f causal links between consumption o f pornography  and  violence/discrimination could not possibly be called objectively true, to the extent that the human sciences -as we shall see later on, and especially in chapter two, section II (1)- are better conceived as power-knowledge regimes that produce their own truths, rather than objective knowledges that discover pre-existing truths (in this respect, it can be argued that the contradictory findings o f different social scientists as regards the connection between pornography and harm are very telling). Such being the case, the problem, in the Court's acceptance o f radical feminism as a rationale to justify pornography regulation, is not so much that o f bringing about such a serious result as speech suppression with a view to promoting a political opinion, namely, the little questionable view that sex inequality is bad- but rather the antecedent one o f bringing about speech suppression by relying on a political truth- namely, that according to which sex inequality is caused by sex speech. Indeed, by thus singling out this view and taking it as the ground to regulate pornography, the L a w not only suppresses speech, but de-authorises alternative perspectives while (re)installing sex essentialism/sexual correctness i n the sense above specified. The important contribution that radical feminism makes  to the  complex, multifaceted  discourse  about  sex  discrimination is thus essentialised and crystallised as the juridical, authoritative truth about sex discrimination, with the aforementioned undesirable results that this operation produces as regards the expression and self-definition o f sexual minorities.  60  I strongly support those feminist proposals that, without impinging upon freedom o f expression with the result o f enforcing and reinforcing some very questionable assumptions  about sex, pornography and society, are directed at remedying those  circumstances under which sex discrimination (along with the related harms that, according to radical feminists, anti-pornography legislation should prevent) thrives. The measures suggested include: comparable worth, affirmative action, full employment  policies, appropriate  welfare  measures,  enforcement  of  employment  standards in the sex industry, sexual education, repression o f discriminatory practices, funding  of  sexual  representations  that  challenge  the  messages  of  pornography, initiatives to enhance women's and minorities' speech power.  mainstream 118  I think that only within a discourse making strong, exclusionary claims to truth it is conceivable: first, to decide to single out those community standards that are at one time consistent with egalitarian values and premised on radical feminist assumptions; second, apply those community standards to sexually explicit material; and third determine accordingly what people can or cannot be exposed to.  In m y estimation, public debate about pornography has gained a great deal from radical feminists' participation i n it. I do not think that dominance feminism is the ultimate truth, but I do believe it may be one o f the truths about pornography, whether straight or not. Another truth specifically about homosexual porn may be the one, developed by queer theorists, that highlights the value o f sexually explicit homosexual representation as a site for subversive resignification. The repetition o f heterosexual practices and roles in a homosexual context o f sexual explicitness would have the effect, according to this theory, of destabilising and challenging sexist and heterosexist ideologies." I find this a 9  See e.g. V. Burstyn, ed., supra note 26. See e.g. S. Bell, "On ne Peut Pas Voir Plmage [The Image Cannot Be Seen]" in B. Cossman, ed., supra note 8, 199 at 232-239. "What happens when hetero-gendered codes - dress, gesture, posture, and sexual activity - are reworked in a lesbian frame? What happens when you mime the mime that heterosexuality has written on male and female bodies and you are both female (as takes place in butch/femme role playing)? What happens when you mix the codes (butch and femme) on one female body? When you play with the more and more popular S/M images? What happens when you both play daddy boys or 118  119  61  seducing idea and, as just hinted at, I think there is truth in it - but it is certainly not the ontological truth about homosexual pornography in the context o f sexist and heterosexist dominant ideologies. A n d I would rather not rely on it alone, i n order to defend an anticensorship position about homosexual pornography: first, because it is debatable that lesbian/gay porn could have a great impact on society as a whole, considering that its consumption tends to take place within the homosexual community; and second, because of its apparent consequentialism. Dissociated from a theory about the inherent importance o f freedom o f expression, i n fact, this argument might entail the conclusion that i n a society where patriarchy, sexism and heterosexism have been vanquished by, among other things, the subversive re-inscription o f heterosexual codes effected by homosexual pornography, we might then possibly dispense with this kind o f expression. I would think such a result ultimately undesirable. For, still another truth about pornography is that it is a source o f pleasure, and it is necessary to move toward something: toward pleasure, agency, selfdefinition. Feminism must increase women's pleasure and joy, not just decrease our misery. It is difficult for political movements to speak for any extended time to the ambiguities, ambivalences, and complexities that underscore human experience. Yet movements remain vital and vigorous to the extent that they are able to tap this wellspring o f human experience. Without it they become dogmatic, dry, compulsive and ineffective. 120  boyfriends, imaging gay male pornography? ... What you have here is at the very least a destabilizing of codes:" ibid, at 232-3. K. Abrams, supra note 28, at 312; quotation originally contained in C S . Vance, ed., Pleasure and 120  Danger: Exploring Female Sexuality 2d ed. (Boston: Routledge & K. Paul, 1984) 1 at 24.  62  CHAPTER II  I: Queer Little Sisters Go to Court.  A s we have seen,  Butler constituted the precedent to justify the British Columbia  Supreme Court's decision, in the  Little Sisters case,  another piece o f obscenity legislation,  122  121  to uphold the constitutionality o f  allowing Canadian Customs to seize obscene  material at the border. The decision delivered by the trial judge was appealed twice: to the Court o f Appeal for British Columbia, that confirmed the constitutionality o f the  Customs  legislation, and to the Supreme Court o f Canada, whose judgement on the case is, at the moment when this chapter is being written, yet to come. The  Little Sisters case involved a number o f homosexual actors. The plaintiffs  included (besides the British Columbia C i v i l Liberties Association) a gay-owned and lesbian-managed business enterprise ('Little Sisters Book and Art Emporium') and two homosexual men (the owners o f the bookstore); among the interveners at the Supreme Court level were a Canadian organisation committed to advancing gays, lesbians and bisexuals' equality at the federal level ( E G A L E ) , and the Women Legal A c t i o n and Education Fund, that submitted a brief in the drafting o f which presumably the views o f lesbian members played a major role. Before the Supreme Court o f Canada, the constitutionality o f customs legislation involving seizure powers o f obscenity was challenged on several bases by lesbian and gay parties. They contended, among other things, that the specificity o f pornography i n the homosexual context (i.e. its value for the purpose o f validating sexual minorities' identities, and the absence o f its link to gender oppression) requires a different standard of tolerance from the one applied to define obscenity in the case o f heterosexual sexually explicit representation; 121  122  that, owing to pervasive heterosexism i n Canadian society,  See supra note 18. See supra note 94.  63  Customs legislation has necessarily a discriminatory impact on gays and lesbians that makes that law unconstitutional on (substantive) equality grounds; and that the legislation is flawed i n that it allows (practically) unchecked administrative discretion, which again translates into discriminatory treatment o f lesbian and gay material.  In chapter one I addressed the issue o f pornography regulation that is based on those understandings that link obscenity to gender oppression/harm to society. I examined the Supreme Court o f Canada's acceptance of this rationale to uphold the Canadian criminal law o f obscenity. I analysed how this acceptance affected, and is likely to affect, homosexual pornography, and I argued that obscenity laws o f the type held constitutional in Butler are ultimately undesirable. The  Little Sisters case involves one such law, that a number o f lesbians and gay  men seem to have been determined to combat. The question that I w i l l attempt to give an answer to in this chapter is: how much sense does it make for lesbians and gay men to resort to the discourse o f rights and court litigation in order to undo what the law did in matters o f obscene expression (as is happening in the  Little Sisters case)?  This discussion, prompted by the question o f how the attacks that have been levelled at the rights discourse from a variety o f different perspectives should impact on my case study, w i l l inevitably expand on an analysis o f the discourse o f rights more in general (especially because sometimes sweeping critiques' seem to need confuting not 23  only with reference to specific cases, but by arguing at the same level o f abstraction as that at which they are made).  124  One observation before I proceed.  General critiques are not lacking, even though there seems to be a consensus, among a number of scholars sympathetic with the struggles conducted by social movements, that the effectiveness of such movements' engaging with litigation to advance their agendas is highly dependant on the types of remedies actually sought (see e.g. J. Bakan, supra note 52 at 57) and on the contextual specifities of any given case 123  (see e.g. M . McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago:  University of Chicago Press, 1994) at 92 ff, and D. Herman, Rights of Passage: Struggles for Lesbian and Gay Legal Equality (Toronto: University of Toronto Press, 1994) at 37). Thus, some of the conclusions that I will draw can be read as well as suggestions about whether and how it might be desirable for not only homosexual activists but also other progressive social movements to advance right claims, even in field unrelated to issues of freedom of expression and equality. 124  64  I have set out in the introduction my methodological approach, which purports to make use, among other things, o f a variety o f poststructuralist insights. It should be noted that some o f the most powerful critiques to the rights discourse either come from theoretical positions that can be labelled 'Marxist' or are launched from platforms marked themselves with the ambiguous sign o f postmodernism/poststructuralism. In dealing with these critiques, a more problematic stance is required than both the dismissive argument o f the incommensurability between modernist (such as Marxist) and postmodernist positions (such as those that partly inform my methodology), and the  necessary  acceptance o f all poststructuralist deconstructive assails to the whole o f modernity's experience (of which, obviously, the rights discourse is one o f the most relevant expressions). This more nuanced way o f dealing with the problem may be deemed justified in the light o f the 'eclectic' methodological approach that I have indicated in the introduction as the one by me chosen, and for the legitimacy o f whose adoption I have already provided reasons.  II: The Subject of Rights.  1. General  Discussion.  In a poststructuralist perspective, the first difficulty with the idea o f social movements employing the discourse o f rights arises probably with the problem o f the subject o f rights. A right is unthinkable without a subject that the right can be conceived as an attribute of. A theory o f rights, in other words, presupposes an entity prior to the rights themselves to which the rights can be logically referred to. In addition, this entity the individual, man (as we shall see later on, literally a man rather than a woman)- tends to be conceived in ontological terms (quite irrespective o f the fact that the rights attributed to it are in turn conceived as (quasi) ontological realities -such as in seventeenth century narratives about the natural rights o f the individual- or i n terms o f cultural constructions).  65  This is supposed to raise a variety o f problems, in that this unquestioned conception o f the individual as an ontological necessity disguises what, in a number o f poststructuralist accounts, is conceived as the constructedness o f the individual, i.e. its being a (contingent) category created by discursive/social practices; one, in addition, and most importantly, that is marked with an oppressive character. The question here is less whether it makes sense at all to invoke the rights o f the individual when the individual is not an ontological reality than whether employing the discourse o f rights unwittingly and uncritically reproduces and reinstalls the naturalness o f the individual; that is, it reifies precisely one among those categories that are most responsible for the oppression that progressive social movements try to oppose.  125  Foucault, stresses both the constitutedness  (as opposed to the metaphysical  originality) and the burdensome heritage o f the subject: The individual is not to be conceived as a sort o f elementary nucleus, a primitive atom, a multiple and inert material on which power comes to fasten or against which it happens to strike, and in so doing subdues or crushes individuals. In fact, it is already one o f the prime effects o f power that certain bodies, certain gestures, certain discourses, certain desires, comes [sic] to be identified and constituted as individuals . . . The individual is an effect o f power, and at the same time, or precisely to the extent to which it is that effect, it is the element o f its articulation. 126  Specifically, Foucault's genealogy o f the modern individual takes the latter as an effect o f particular power/knowledge combinations- the product o f the development o f disciplinary (and confessional)  127  technologies o f power. Foucault's emphasis here is not  with juridical power (the power o f the Sovereign that interdicts through the law) but with that, according to him, more pervasive and productive type o f power whose tendency is To be sure, contemporary -as distinguished from previous- humanists, in defending the principles of equality, liberty and autonomy of the subject, i.e. in defending the subject of rights, tend to recognise the historical constitutedness and contingency (together with the persisting validity) of the ideals of modern humanism as opposed to a pretended metaphysical necessity of theirs: see P. Johnson, Feminism as a Radical Humanism (Boulder: Westview, 1994) at 9-15. But in a 'pure' poststructuralist perspective this hardly changes a thing, as the individual stays an oppressive construct even if its constructedness is acknowledged. 125  1 2 6  M. Foucault, "Two Lectures" in M. Kelly, ed., Critique and Power - Recasting the Foucault/Habermas  Debate (Cambridge, Massachusets: MIT Press, 1994) at 36.  66  towards ever-increasing forms o f surveillance, discipline and normalisation o f people through the production o f certain regimes o f truth. Schematically, the individual is created when it becomes the object (and therefore is produced as an effect) o f those practices o f observation, description, interpretation, classification, etc. typical o f the human sciences, which historically developed i n connection with (and providing a discursive justification for) the institutional application (in prisons, hospitals, schools, welfare agencies o f the state, etc.) o f techniques o f discipline/surveillance.  128  It seems to me, however, that the negative connotation that the category o f the individual assumes i n the context o f disciplinary power need not mark its juridical deployment by social movements. If the rights discourse is not used by social movements i n such a way that "forces the individual back on himself [sic] and ties him [sic] to his own identity"  129  -an identity  that took shape as a result o f disciplinary technologies and their discursive counterpart, i.e. the sciences o f man- we could reasonably believe that the employment o f the rights discourse is not bound to reproduce oppression, but, on the contrary, can be a means to oppose it. It is true that there are strong connections between the philosophical/juridical idea o f self-legislating subjectivity and the individual produced by the human sciences, and therefore utilising the juridical discourse o f (the subject of) rights may require some wariness. In fact, it can be argued that the humanist philosophy o f individual rights that we inherited from the Enlightenment presupposes a certain kind o f subjectivity, one that is contiguous to the "knowable man" o f the human sciences (much more so that juridical power  and disciplinary  power  tend  to colonise each  other's  domains).  130  The  subject/object o f the human sciences, actually, emerges as individuality, soul, conduct, consciousness,  131  the truth about which can be told by the social scientist who claims to  have access to a meaning lying outside power relations. The former, on its part,  127  See supra note 99.  1 2 8  See H.L. Dreyfus and P. Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics (Chicago:  University of Chicago Press, 1982) at 126-83. M. Foucault, "The Subject and Power" in H.L. Dreyfus and P. Rabinow, supra note 128 at 212. See C. Smart, supra note 33 at 4-20. See H.L. Dreyfus and P. Rabinow, supra note 128 at 160. 129  130  131  67  emphasises the not so different principles o f self-determination,  freedom and autonomy,  only i n connection with which the liberal discourse o f rights seems to make sense. It is these principles that constitute that "rhetoric o f humanism [rejected by Foucault] on strategic grounds because this rhetoric stands as an integral component o f the new disciplinary techniques."  132  However, if, as I hold, rights and the connected idea o f individual autonomy o f the subject o f rights can be invoked i n a way that does not necessarily reproduce the oppressive individualisation effected by the social sciences and disciplinary technologies, that would be an indicator that the juridical subject o f (the discourse of) rights cannot be utterly reduced to the individual subject/object o f the human sciences. This, i n turn, suggests that, although the notion o f the juridical subject and that o f the knowable man o f the human sciences developed  in connection to each other, the individual produced by the  discourse o f law/rights and political theory is not the same as the one produced b y the manifold discursive rationalisation o f disciplinary technologies.  Foucault's point is that the theory o f sovereignty/rights is the discursive counterpart o f a form o f power whose importance has been gradually diminishing. Juridical/repressive power is not the sort o f power characterising modern/contemporary societies. The discursive justifications o f this sort o f power (i.e. the theory o f sovereignty/individual rights and, to a certain extent, the law itself) are, however, outliving it, because this allows the new mechanisms o f (disciplinary) power to operate unnoticed and undisturbed.  133  B y so conceiving the relationship between power and discourses, Foucault could not help distrusting the law and the theories o f rights as emancipatory means. B u t it is Foucault's absolutely privileged emphasis on disciplinary power that necessitates such result. It seems that Foucault's analysis here leaves us with two types o f discourse and one type o f power. Power is conceived exclusively (or almost exclusively) in terms o f  132  133  See P. Johnson, supra note 125 at 14. See M. Foucault, "Two Lectures" in Kelly, ed., supra note 126 at 31-46.  68  disciplinary/normalising power. The discourses are, instead, the human sciences and the theory o f rights and sovereignity. What connects power with  both discourses is a deceitful  intent- that o f masking the true mechanisms o f power (of course this does not mean that anybody, or anything like a class, was actually out there deliberately orchestrating this whole plot). O n the one hand the theory o f rights and sovereignity, by taking as the express object o f its analysis power itself, keeps us in the false belief that there exists anything like juridical/repressive power, that that is the only type o f power, that we should be concerned about it, but only to a certain extent, as this power can be limited, and therefore rendered legitimate, through rights. O n the other hand, the human sciences (unlike a theory o f rights) do not take as their mandate an express justification o f power (juridical or disciplinary), but surreptitiously justify the application o f disciplinary power techniques by characterising them as something different from what they really are: for example, when psychoanalysis claims to reveal the truth about the homosexual, it is i n reality creating that category to subject a certain number o f people to regulative mechanisms. Both discourses, then, tend to mask the operation o f disciplinary power: the law and the theory o f rights by making us believe that power is different from disciplinary power, and the human sciences by convincing us that what in truth is nothing else but disciplinary power is something different from power. Now,  this  account  may  well  reflect  the  relationship  between  disciplinary/normalising power on the one hand and the discourses o f the human sciences and that o f rights on the other. Yet, I believe that, besides disciplinary technologies, there still  are  relevant  mechanisms  o f power  that  can  be  read  according  to  the  juridical/repressive model o f operation. Davina Cooper holds that "[pjower ... is an explanatory or normative device that highlights  and articulates  some  social relations, decentring others;  69  for  instance,  Foucault's ... framework downplays the 'power' o f the modern sovereign or state. Where conceptual boundaries are therefore drawn is a political issue."  134  I take it, to name only the example most relevant to the subject matter o f this thesis, that the legal treatment i n Western democracies o f people engaging i n what are perceived as same-sex activities or relationships suffices to justify the claim that we have not yet gotten rid o f juridical/repressive power.  135  D. Cooper, Power in Struggle (Buckingham: Open University Press, 1995) at 17-8. A few examples can be provided to illustrate what I mean. Five states in the United States (Kansas, Arkansas, Texas, Missouri, Oklahoma) have criminal provisions that apply only to same-sex sodomy. While it is true Vermont has recently passed a law (the 2000 "Civil Unions Act") that provides for same sex 'civil unions' the same benefits granted to married heterosexual couples under Vermont law, thirtythree states of the Union prohibit same-sex marriages, and federal legislation (the 1996 "Defense of Marriage Act") denies homosexual couples federal benefits granted to opposite-sex married couples. While the Supreme Court of Canada recognised, in Egan v Canada [1995] S.C.J. No.43, that sexual orientation, although not expressly mentioned in the equality clause (s. 15) of the Canadian Charter of Rights and Freedoms, is a prohibited ground for discrimination, Canadian lesbians and gay men do not benefit from all the rights that heterosexuals enjoy. In Australia, New South Wales is endowed with comprehensive legislation prohibiting discrimination and vilification on the basis of homosexuality (s. 49ZF-49ZTA of the Anti-discrimination Act 1977), as distinguished from sexual orientation, but the law sets the age of consent for male homosexuals at 18, contrary to heterosexual intercourse that is lawful when the partners are 16 (respectively sect. 78K and 66C of the Crimes Act 1900). Western Australia, on its part, not only sets the age of consent for male homosexual intercourse at 21, while it is 16 for heterosexuals (s. 322A and 3221 respectively of the Criminal Code Act Compilation Act 1913- Schedule 1); it has also no antidiscrimination provisions to protect lesbians and gay men; and, quite obsessively, it excludes that encouragement or promotion of homosexuality can legitimately constitute a public purpose, public policy, or part of primary or secondary education curricula (art. 23 of the Law Reform (Decriminalization of Sodomy) Act 1989). In Western Europe, there may be states like the Netherlands, that allow their citizens (both homosexual and heterosexual) to establish registered partnerships that have legal consequences similar to those associated with marriage; besides, article 1 of the Dutch Constitution is understood as extending the principle of non-discrimination to lesbians and gay men, and the General Equal Treatment Act 1994, among other things, prohibits discrimination on the basis of heterosexual or homosexual orientation in housing, employment, access to goods and services, etc. At the same time, however, other Western European countries have less flattering legal provisions. In the U.K., s. 143 of the Criminal Justice and Public Order Act 1994 discriminates between male homosexual and heterosexual intercourse, fixing the age of consent at 18 for the former and 16 for the latter; s. 28 of the Local Government Act 1988 is still forbidding local authorities from promoting homosexuality or educational institutions from teaching its "acceptance ... as a pretended family relationship;" and there is no anti-discrimination legislation in favour of lesbians and gay men. Austria has an infamous provision (art. 209 of the Criminal Code) that discriminates as far as age of consent are concerned, and under which young gay men are imprisoned yearly. In Italy, it is true, homosexuality was no offence even during the fascist period; the age of consent (14, or 13 if the partner is under 16 years of age: art.609 quarter of the Criminal Code) is the same irrespective of sexual orientation, and the law does not mention homosexuality in order to single out lesbians and gay men for harsher treatment (nor it seems to have done it in the past). The law does not mention homosexuality (or sexual orientation) at all, for that matter. In practice this means, inter alia, that in the equality clause of the Constitution (art. 3), sexual orientation is not a prohibited ground for discrimination; and that homosexual unions are not recognised under the law. See: The International 134  135  Lesbian and Gay Association World Legal Survey, online: ILGA  <www.ilga.org/Information/Legal survey/ilga world legal survey%20introduction.htm>  70  The subject o f rights, in Foucault's analysis, is part o f those rhetorical devices used to mask the technologies o f power that are actually at work. Therefore it is an empty category that tends to be colonised by the subject produced by disciplinary technologies under the false objectivity o f the sciences o f men. In fact, i f the technologies o f power behind the discourse o f rights turn out to be disciplinary ones, it is reasonable to think that the subject o f rights must be the same as the subject that justify the oppressive practices o f classification and normalisation o f the human sciences. Still, as I mentioned above, I believe that i n Western democracies there still exist, in addition to disciplinary/normalising power, mechanisms o f power that can be described within the framework o f the juridical/repressive model (i.e that o f the Sovereign that says "no")- namely the power o f majorities expressed through their elected t  representatives. The power  behind theories o f sovereignity and rights, i n other words,  may well be disciplinary; but that does not mean that the juridical/repressive power  that  these and related theories take as their (admittedly, almost without exception, exclusive) object of analysis is a fiction. Claiming  that  contractarian  theories  (i.e. modern  theories  o f rights and  sovereignty) take as the object o f their analysis a really existent form o f power (i.e. juridical power) should not be intended to mean that by so doing they tell a truth that is  outside power relations. O n the contrary, they as well constitute complex regimes o f power/knowledge, and as such produce their own power-laden truths, rather than discover a truth beyond power. Therefore, the subject o f rights that contractarian theories presuppose to justify their narratives, far from being an ontological  a-priori, is most  likely to be a truth effect o f these theories, i.e. is produced by these theories, and by the law that grants (or recognises the inalienability of) this subject's rights. The relationship o f this construct with the juridical power that constitutes the object o f contractarian theories is, I would argue, ambivalent. O n the one hand the subject o f rights surreptitiously serves the perpetuation o f juridical power by being presented as an ontology prior to that power, that  founds  Status of U.S. Sodomy Laws, online: A C L U - Lesbian and Gay Rights <http://www.aclu.org/issues/eay/sodomy.htinl>, and Equality for Lesbians and Gay Men: A Relevant Issue  71  juridical power itself by an act o f consent (the social contract). In this sense the relationship o f the autonomous subject o f rights with juridical power is similar to that o f the subject o f the human sciences with disciplinary power (for the subject/object o f the sciences o f men surreptitiously justifies the hold o f disciplinary technologies). In this perspective,  behind the discourse o f soverignity/rights o f contractarian theories lies not  only disciplinary power (see above), but also (at least) juridical power itself. O n the other hand, as a consequence o f the explicit justificatory task that such theories undertake with regard to juridical power (less cynically: pursuant to the prescriptive result that -at least some of- such theories aim to effect by spelling out for the actors o f juridical power the  sine-qua-non conditions o f legitimate juridical power), that  same subject o f rights presupposed by contractarian theories emerges -i.e. is produced- as a limit to that power. If, in terms o f its actual emancipatory potential, the credentials o f the subject o f rights are doubtful when the 'surreptitious,' as I have called it above, justification o f juridical (and disciplinary) power is at issue, they recover a degree o f trustworthiness when the subject o f rights is produced as the ground on which contractarian theories purport to build the limits o f an acceptable exercise of juridical power. The desirability o f living i n a society organised under juridical power, as well as which limitations make this form o f power acceptable (both o f which questions contractarian theories pretend to provide an objective answer to) are definitely disputable, but the meaning o f the subject of rights as a  limit to juridical power (as opposed to its being a mere justificatory  construct for its hold), in the sense o f its ability to conceptually justify restraints to repressive power's action, seems less so. The production o f the subject o f rights then, taking place in the context o f a peculiar power/knowledge regime, is relatively autonomous from the one o f the knowable man o f the human sciences; which is the same as saying that the subject o f rights and that of the sciences o f man are not one and the same, and the former, as just suggested, can be  in the Civil and Social Dialogue (1998), online: ILGA-Europe <www.steff.suite.dk/report.htni>. 72  expected to have (under given circumstances) actual liberatory potentialities against juridical/repressive power.  136  Despite its potential for constituting a point around which to articulate strategies o f resistance, and its (relative) autonomy from the (oppressiveness o f the) subject produced b y the human sciences and disciplinary technologies, the subject o f rights produced by contractarian theories and by the law might well be burdened with its own share o f 'internal' oppressiveness. That is to say, the very discourses that produce the subject o f rights, especially considering their ambivalence, can be thought to attach to it some oppressive traits. The problem here lies with the sort o f individuality that the rights model, and the intellectual tradition within which it developed, are thought to promote. The subject o f rights, specifically, appears to be too masculine and too western. Schematically, its very identity as  subject necessarily opposes it to an object, to which the subject relates in the  guise o f a master; thus identities that do not recognise themselves i n this specific relational model (the feminine and/or the non-Western other, depending on the accounts) end up being denied the privileges attached to subjectivity itself. Besides, the subject's being  universal, and therefore abstract, opposes it to what is perceived as specific and  embodied; and since i n the phallocentric economy o f dominant discourse the body is woman, women do not have a place as subject, but only as the subject's other.  137  These critiques play a vital role in sensitising progressive social movements to the oppressive consequences that an uncritical appropriation o f the rights discourse can bring about by reinforcing exclusionary notions o f subjecivity. But, to the extent that some o f them may draw the conclusion that the subject o f rights is inherently flawed and destitute of emancipatory possibilities, they, it seems to me, may foreclose precisely the actualisation o f such possibilities while affirming that such foreclosure is effected by the subject o f rights itself as a category.  This seems to have been accepted by the late Foucault himself: see J. Sawicki, Disciplining Foucault (New York: Routledge, 1991) at 100-1 and at 124, endnote 11. Instances of this position are reported in P. Johnson, supra note 125 at 5-7, 16-18, and J.P. Butler, 136  137  Gender Trouble, supra note 38 at 19-20.  73  A subject bent on, like the liberal subject o f rights, autonomy and "authentic selfrealisation"  138  needn't assume, i n order to constitute an effective limit to repressive power,  imperialist, sexist and exclusionary meanings. Just as the various rights themselves are categories whose meanings constitute an ongoing negotiation, the subject o f rights and the values associated with it are sites o f struggle worth engaging w i t h :  139  there is nothing  in them, it seems to me, that is discursively foreclosed to the valorisation o f nonhegemonic experiences and knowledges.  From this perspective, then, the problem, for progressive social movements, appears to be (rather than one o f shrinking from the rights discourse altogether) that o f trying to avoid employing the rights discourse: a) i n such a way that ties the subject o f rights to the subject(s) o f the sciences o f man: that is i n such a way that ties one to one's own identity, or, i n other words, that promotes the reinforcement o f those oppressive categories and groupings that the knowable man produced by the human sciences is by these discourses thought susceptible to be assigned to from time to time  (e.g., the category of'the homosexual'); and  b) i n such a way as to reproduce and reinstall those hierarchies explicitly or implicitly contained i n most contractarian and related theories, and i n the law itself -i.e, with synthetic expression, i n the liberal discourse o f rights (e.g. the notion, authoritatively disqualifying other knowledges and experiences, o f the Euro-centric/masculine 'life, liberty and the pursuit-ofhappiness-as-property' triad being the official version o f the "authentic self-realisation" value).  This term runs throughout P. Johnson, supra note 125. See also J. Sawicki, supra note 136 at 100-1.  74  2. Application to the Case-Study.  Can rights-employing strategies used by lesbians and gay men with reference to the issues o f homosexual pornography translate the course o f action suggested above into practice? In cases such as the one debated i n Little Sisters, the state, irrespective o f its declared intentions, is acting according to the repressive model o f power: that is, it is saying ' n o ' to gay men and lesbians who are willing to exercise their freedom o f expression as far as obscene material is concerned. In this case, that is, homosexuals find themselves precisely i n one o f those situations i n which they are occupying the position o f the subject constituted by the discourse o f rights: a subject that responds with its rights against the state's injunctions, posing itself and its rights as a limit to juridical power. If the exercise o f state power is negatively evaluated under the circumstances o f the specific case (as is i n the present discussion, pursuant to the observations made i n chapter one), then the subject o f rights can be thought to promise liberatory possibilities from an unjust exercise o f authority. Still, for the subject not to be the bearer o f unwanted oppressive consequences,  it seems  that,  i n making its claims, the subject  disciplinary  should  avoid  conceptualising itself by making use o f categories that, i n our case, reinstall the naturalness o f the binary opposition homosexual/heterosexual, which a) is today a constitutive element o f the binary economy o f sex and gender, heavily implicated i n sex/gender/sexual orientation discrimination,  140  and b) relies on subjective identities (the  homosexual as opposed to the heterosexual) whose doubtful value is suggested by their own genealogy.  141  In a queer/poststructuralist perspective, that is, we might suggest that i f  the right claim could be advanced without drawing rigid distinctions between homosexual and heterosexual, then we might contribute to the deconstruction o f these constraining identities.  0  See J.P. Butler, Gender Trouble, supra note 38 at 1-34.  1  See note 35 and accompanying text.  75  Canada's present state o f obscenity laws is, on its face, sexual orientation neutral. It does not draw distinctions between heterosexual and homosexual pornography. Still, the legislation is not neutral i n terms o f its impact: as the British Columbia Supreme Court recognised i n  Little Sisters, gay and lesbian material is disproportionately  scrutinised. Actually, the B C Supreme Court affirmed that the discriminatory impact was a consequence o f the  administration o f customs legislation, rather than o f the legislation  itself, and that appropriate training provided to customs officials would eliminate any shortcomings o f the present administrative system.  142  The plaintiffs, as well as the  interveners E G A L E and L E A F , contended instead, by appealing the decision to the Court of Appeal for B . C . and subsequently to the Supreme Court i f Canada, that it is the legislation itself that is flawed, and that inevitably produces a discriminatory impact.  143  A t any rate, the fact remains that the opposition 'homosexuality/heterosexuality' is reinforced as an effect o f the law even though the law does not mention it expressly. Customs legislation provides thus an opportunity  for reinstalling the matrix o f  compulsory heterosexuality. This is true in two senses. First, in the sense o f the law's substantially allowing officers' discretion to bestow a differential treatment on gay porn, pursuant to its having formally enabled at all state agencies to scrutinise pornographic material (of every type).  144  Second, i n the sense that i f homosexual pornography has the potential for disrupting the naturalness o f gender roles through its parodic redeployment o f straight  142  See supra note 94-7 and accompanying text.  143  See the Appellants' Factum, supra note 101; LEAF Factum, supra note 47; and E G A L E Factum, supra  note 100. See also EGALE Factum, supra note 100: "[§ 26:] The impugned legislation's differential treatment of lesbians, gays, and bisexuals has a discriminatory impact on our communities. The systematic detention and seizure of homo-erotic imagery and text stigmatizes our sexualities as "obscene" per se. This constitutes an affront to our dignity. It perpetuates and promotes the unfair societal characterization of lesbians, gays, and bisexuals as oversexed individuals, whose sexual practices are degrading and dehumanizing. Thus the Customs Legislation discriminates against us in a substantive sense, contrary to the purposes of s. 15 of the Charter (which include promoting respect for human dignity and eliminating such social ills as stereotyping and prejudice)." 144  76  themes, restrictions (in addition, disproportionate restrictions) to its availability facilitate the hegemony o f the binarism o f sex/gender/desire.  145  For lesbians and gay men, one solution to the problem o f state censorship with regard to their pornographic material would be to ask for a 'double standard,' which would exempt their sexually explicit expression from the operation o f obscenity law. In the  Little Sisters trial, one o f the remedies requested by the plaintiffs did  precisely this: the Supreme Court was requested to read down Customs legislation in so far as it applied to gay and lesbian obscene materials. The motives for this request were either the discriminatory impact o f customs legislation (that practically allows officials to disproportionately limit lesbian and gay free speech rights), or the adduced lack o f a pressing  and  substantial  harmlessness/value  legislative  objective  (premised  on  the  supposed  o f gay and lesbian pornographic material). In this perspective,  Butler's community standards test for evaluating whether the dominant characteristic o f the material is the undue exploitation o f sex would go on working only for heterosexual porn, that could still be seized at the border. The desirability o f this strategy, however, is questionable. It is true that it would arguably meet the second among the conditions (listed at the end o f the previous section) that it might be appropriate to think progressive social movements' critical engagement with the discourse o f rights should meet. In fact, the reinforcement o f those hegemonic cultural values typically associated with the subject o f rights would not appear to follow in a linear fashion from this way o f employing the right discourse, to the extent that the autonomy and 'authentic self-realisation' that lesbians and gay men pursue by affirming their right to equality and freedom o f pornographic expression is not only different from, but has also the potential for questioning the naturalness o f the traditionally masculine version o f those values. But would this strategy  meet the requirement  o f not contributing to  the  normalisation o f the individual effected by tying her to her own identity (here, as  See, for an analogous argument, LEAF Factum, supra note 47: "[§ 24:] LGBT materials ...may challenge sexism, compulsory heterosexuality and the dominant, heterosexist sexual representations which often portray "normal" heterosexuality as men dominating women and women enjoying pain and degradation." ,4S  77  explained, homosexuality)? If the Court granted the remedy requested, a positive effect would result by allowing the circulation o f material challenging the heterosexual matrix; but the remedy would itself help sustain that matrix in one o f two ways. First, where the Court accepted the argument o f the harmlessness o f lesbian and gay porn, it would end up drawing an a-priori, rigid distinction between all heterosexual pornography and all homosexual sexually explicit representation.  I have  already  underscored in chapter one the essentialism o f those positions that thus categorise sex speech. This essentialism, i f translated into law by a pronouncement o f the Supreme Court i n the  Little Sisters case, would end up naturalising and radicalising the  distinctiveness o f homosexuality. Second, where the Court accepted instead the argument that customs legislation unjustifiably impacts on gays and lesbians' rights in a disproportionate way (i.e the legislation is discriminatory), the Law's subjecting homosexual and  heterosexual  pornography to different standards (even i f this choice were not necessarily motivated by essentialist notions about the value o f different types o f pornography) would to some extent, by virtue o f its drawing the distinction homo/hetero, still discursively contribute to reinstalling the otherness o f homosexuality. The legal strategy  o f asking for a differential treatment for homosexual  pornography would, i n neither case, meet the requirement, above posed, o f deploying the rights discourse so as to avoid the subject o f rights being re-inscribed i n those identities that are part o f the system o f that subject's oppression (even when they are re-elaborated). There is an alternative, however. For the reasons I have laid down in chapter one, I believe that systems regulating obscenity on grounds as those espoused in  Butler are undesirable. The L a w , in singling  out what would otherwise be Radical Feminism's  valuable contribution to the complex  discourse about sex discrimination, creates an official truth about pornography, while suppressing sex expression itself, i n a manner that falls hardly short o f a presumption o f infallibility. The public is thus deprived o f the material  whose merit a democratic system  would require the public itself to asses. Sex essentialism and sexual correctness are reinforced as a consequence o f the L a w ' s censorial move. Besides, as we have seen,  78  homosexual pornography,  although  different  from  straight  sex  representation,  is  complicated enough to make it undesirable to officially sanction its 'innocence' and harmlessness by exempting it from regulation while maintaining censorship o f straight porn (which in turn is not simple enough to make it desirable that its harmfulness be officially sanctioned through criminalisation). This means that queer actors, when trying, as in the  Little Sisters trial, to advance  their right to produce and enjoy pornography, might find it preferable to ask the Court to remove the piece o f obscenity legislation at issue altogether (thus affecting the circulation of straight porn as well). A remedy granted pursuant this critical deployment o f court litigation would be one o f 'first best' in terms o f its arguably avoiding reinstalling the oppressive dichotomy 'homo/hetero' in a threefold sense: a) we would do away with the discriminatory practices o f state officers (and judges); b) we would do away with the backfiring strategy o f the double standard; c) we would contribute to the disruption o f the hegemony o f presumptive heterosexuality and gender binarism by lifting the shackles from the subversive recodification o f sexual identities and gender roles effected by lesbian/gay porn.  In the  Little Sisters trial, the plaintiffs' aforementioned request that the law should  be read down was a remedy sought only i n addition or alternatively to the  striking down  of the impugned regime. This latter remedy, i f granted by the Court, would be more desirable in that it is likely to contribute, unlike the former, to the destabilisation o f 'hetero-normativeness' in all the three senses listed above (a+b+c). A s regards the reasons submitted by the plaintiffs in order to obtain this remedy, their choice to argue also that "the Customs Legislation is ... unconstitutional insofar as gay and lesbian . . . material is concerned given the extreme imbalance between the deleterious effect o f the Customs Legislation on such material and the Customs  79  Legislation's negligible, i f any, salutary effect"  146  can be considered more hazardous than  one that had focused exclusively on the argument that "there is a sufficient nexus between the Customs Legislation and the detention and prohibition o f non-obscene expression."  147  In fact, i n raising the issue o f the differences between homosexuality and heterosexuality, this choice provides the L a w with an occasion to discursively reinstall the suite o f oppressive features associated with the former category, (re)producing an authoritative, essentialising truth about lesbians and gay men.  148  Ill: The Entitlement Model.  1. General Discussion. Another critique moved against the rights discourse (tightly connected and overlapping, although not utterly identifiable, with the just discussed problem o f the  subject o f rights) is the one that objects to it for its Western biases i n being centred around an entitlement model directly derived from the notion o f private ownership o f goods. For example, M a r y E . Turpel argues that, according to John Locke, people enter into " c i v i l society" for the central, and negatively conceived, purpose o f protecting their interest or claim to private property against random attack from other persons. The idea o f the absolute right to property, as an exclusive zone o f ownership, capable o f being transmitted through the family ... is arguably the cornerstone o f the idea o f rights in Anglo-American law. Rights are  146  147  Appellants' Factum, supra, note 101 at § 156. Ibid.  Consider, for example, the following statements of the trial judge, especially in connection to each other: "The Little Sisters store carries a wide variety of materials, mostly catering to homosexual tastes," and "The defining characteristic of homosexuals -the element that distinguishes them from everyone else in society- is their sexuality. Naturally, their art and literature are extensively concerned with this central characteristic of their humanity. As attested by several of the plaintiffs' witnesses, erotica produced for heterosexual audiences performs largely an entertainment function, but homosexual erotica is far more important to homosexuals. ... [S]exual test and imagery produced for homosexuals serves as an affirmation of their sexuality and as a socializing force ... Because sexual practices are so integral to homosexual 148  culture, any law proscribing representations of sexual practices will necessarily affect homosexuals to a greater extent than it will other groups in society, to whom representations of sexual practices are much  less significant and for whom such representations play a relatively marginal role in art and literature:" (emphasis added) Little Sisters, supra note 18 respectively at 514 and 522.  80  seen as a special zone o f exclusion where the individual is protected against harm from others. Obviously, this is a highly individualistic and negative concept o f social life based on the fear o f attack on one's "private" sphere. It provides something o f a basis, however, for all ideas about rights - the idea that there is a zone o f absolute individual rights where the individual can do what she chooses ... [and, a]s Roberto Unger has suggested[,] ... avoid any tangle to claims to mutual responsibility. 149  While Turpel is making these statements in the context o f an article underscoring the ways i n which Canada's legal system disqualifies the knowledges/experiences o f Aboriginal peoples, her position seems to be paradigmatic o f a stance that takes issues with the entitlement model at a more general level.'  50  M y attitude towards this strain o f criticism is similar to the one I assumed with regard to the objections to the subject o f rights. I believe critiques o f the entitlement model are valuable as anti-hegemonic strategies, i.e. for the purpose o f de-centring the western legal experience and allowing us to realise "that there are more secrets, more possible freedoms, humanism.'"  51  and more inventions in our future  than we can imagine in  But I have some problems when the baby o f human rights is thrown away  with the bath water o f cultural hegemony. Neither the historical origins nor the logic o f the discourse o f rights precludes, in my opinion, an openness o f the entitlement model to progressive deployments by social movements. Turpel is correct i n saying that Locke's theory is that human beings associate in order to preserve their property. She fails to specify, however, that 'property,' in Locke's terminology, encompasses "life, liberty and estate,"  152  and specifically that Locke made  "life, liberty, health, and indolency o f body" precede "the possession o f outward things" in the list o f the " c i v i l interests" that men seek to advance when they constitute what he  M.E. Turpel, "Aboriginal Peoples and the Canadian Charter" in R.F. Devlin, ed., Canadian Perspectives on Legal Theory (Toronto: Edmond Montgomery Publications, 1991) 503 at 509. For example, Locke's "highly individualistic and negative concept of social life" appears generally opposed to a more appealing model of "mutual responsibilities" (emphasis added): ibid. M. Foucault, quoted in J. Sawicki, supra note 136 at 124, endnote 11. Quotation originally contained in "Truth, Power, Self: An interview with Michel Foucault" in L.H. Martin, H. Gutman and P. Hutton, eds., Technologies of the Self (Amherst: University of Massachussets Press, 1988) at 15. See J. Locke, Second Treatise of Government, s. 87, online: Columbia University <www.ilt.columbia.edu/academic/digitexts/locke/second/locke2nd.txt> (available in paper format, new ed. corr. and rev. (London: Blackwell, 1956)). 149  150  151  152  81  calls the "Commonwealth."  153  This, as well as the failure to refer to the context  (seventeenth century England) in which Locke's entitlement model originated practically obscures the ability o f that model to provide effective protection from  abuses ofpower on  the part ofpublic authorities.^ This is not to suggest that the whole o f Locke's theory o f rights is flawless, or that it is i n keep with the more egalitarian sensitivity o f our day and age, or that it constitutes an appropriate model to deal with all o f today's, or even seventeenth century's, social needs (it could be argued, for example, that the subject o f rights, as envisaged by Locke, appears at stages to suffer precisely from that serious complex o f 'westernness' and masculinity mentioned i n the previous section). I am simply taking issues with those positions that discredit the entitlement model by referring back to what are believed to be its origins (which I would argue are testimony at least as much to the merits o f the entitlement model as to the flaws o f L o c k e ' s version o f it), seemingly suggesting that this model is not open to possible progressive redeployments or that it is inherently inapt to satisfy a number o f human needs that go beyond the mere enjoyment o f one's private property or autonomous w i l l . In fact, some thought should be put to the opposition 'responsibilities model v. entitlements/rights model' in the first place. The binarism is misconceived to the extent that it erases the inter-subjective dimension o f any exercise o f rights. Thus, the rights/entitlement model is seen as one in which individuals are somewhat surrounded by a sphere i n which their autonomy can do, wholly undisturbed, what it pleases, while the responsibility model is presented as one in which individuals always regulate their actions on the basis o f the consequences that may ensue on the community.  1 5 3  155  Still, the  J. Locke, A Letter Concerning Toleration, supra note 16.  In A Letter Concerning Toleration, for example, Locke discusses his theory of rights with reference to the issue of freedom of religion, disrespect for which had caused bloodshed in England and elsewhere in Europe since the previous century; similarly, Locke's model, in so far as it applied to such interests as life and liberty, provided strong grounds for limiting public authorities' arbitrary and oppressive practices, the solid reality of which, in seventeenth century Britain, is arguably proven by the need felt by Parliament to enact, precisely in that period, such laws as the Habeas Corpus Act 1679. In these circumstances, it appears likely that Locke's (and subsequent) appeals to the recognisance of individual civil interests against state interference had somewhat more noble motivations than the mere egotistical desire to be free from mutual responsibilities. "From nearly every non-Western culture comes the argument that its members do not define themselves in the first place as autonomous individuals, but instead experience themselves as having an "ascribed status" as members of a larger group or community, such as family, tribe, class, nation, or other group ... 154  155  82  idea, proper o f the entitlement model, o f a sphere i n which "[e]very man [sic] ... has the supreme and absolute authority o f judging for himself," does not make the individual free from claims to mutual responsibilities, as this idea is perpetually troubled by what we can call the 'harm principle', i.e. the condition that "nobody else ... can receive any prejudice from his conduct."  156  O f course "prejudice", and "conduct" and even "nobody else" are  terms open to multiple interpretations and constitute sites o f definitional struggles: but then the same is true for 'responsibility,' so it is disputable that the entitlement model and the responsibility model are truly radically alternative discursive options.  157  I w o u l d contend that the responsibility model points to something different from the entitlement model only i n those contexts where the meaning o f responsibility is relatively uncontested. In a comparatively small community, with a closely knit social order, where people all tend to share the very same values, where there is a finite number o f types o f social roles to be assumed and activities to engage i n , and where, as it were, The concept of rights itself is argued to be characteristic of a society that thinks in terms of atomized individuals and abstract ideas. Many non-Westerners are wary of the adversarialism inherent in rights talk. Rather than rights, they stress obligations and reciprocal responsibilities:" E. Brems, "Enemies or Allies? Feminism and Cultural Relativism as Dissident Voices in Human Rights Discourse" (1997) 19.1 H R Q 136 at 145-6. Locke J., A Letter Concerning Toleration, supra note 16. In this sense I would contend that it cannot be assumed that the rights model, even in Locke's formulation, is based on anything like an unqualified 'supremacy' of the autonomous individual (where 'supremacy' stands for "the state of being supreme [i.e. highest] in authority, power, rank or importance:" D. Thompson, ed., The Oxford Modern English Dictionary (Oxford: Oxford University Press, 1996)). Also, consider how it is common to talk of entitlements and responsibilities as complementary notions. See e.g. S.A. Scheingold, The Politics of Rights: Lawyers, Public Policy and Political Change (New Haven: Yale University Press, 1974) at 17: "The . . . rule of law system . . . encourages us to break down social problems in the responsibilities and entitlements established under law." See also G. Binion "Human Rights: A Feminist Perspective" (1995) 17.3 H R Q 509. At 524-5 Binion argues: "One of the most interesting aspects of the debates within feminist jurisprudence is the question of whether rights analysis, domestically or internationally, is useful. Gilligan first highlighted this question effectively in her findings that (US) women were more prone to see themselves within a web of community to which they had responsibilities, rather than in contradistinction to a society against which they had rights; the latter was a more characteristic male model... If this approach of "responsibility" were applied to the human rights arena, it might be significant in allowing a broader and more open range of action with respect to human rights issues. Key elements of such an approach would be a concern with impact rather than intent by powerful social actors, governmental and otherwise. It would similarly reconceptualize human rights as human needs and would measure the acceptability of the status quo by the extent to which human needs are being met." However, at 525 she pojnts out as well that "[fjhese ideas are not entirely new; if one scans international "human rights" documents of the past half century there is much language that speaks to "rights" in the kind of positivistic and material language that not only transcends the politically procedural, but also transcends the nation state in addressing human needs." This seems to 156  157  83  every element falls into place, a focus on responsibilities may be apt to make the system work according to relatively invariable rules o f conduct that determine the behaviour o f the community's members i n every conceivable situation. This, however, does not seem to be the situation characterising contemporary western societies, nor was the case in Locke's own time and place. It is probably the longing for a Utopian state in which their own notion o f responsibility were universally recognised as the only official version o f society's morals that, in the West, makes the responsibility model generally very appealing also to custodians o f traditional morality.  2. Application to the Case Study.  In situations analogous to the one o f my case study, recourse to an alternative responsibility model might be o f little help, i f not ultimately undesirable. This is arguably shown by the role played respectively by right claims (the entitlement model) and responsibility arguments in the  Butler decision.  A n emphasis on wide notions o f responsibility, conceived, in the sense just described, in opposition to a model o f rights/entitlements, seems to suit arguments supporting pornography regulation on the basis o f conservative morality. Consider, for example, the following statements made by a captain o f the Salvation A r m y o f Canada, and apply them to the idea o f the right to produce/enjoy pornography: "I don't like the word "rights" because it implies that I can take something away from you. I prefer privileges and responsibilities ... When we put it in the context o f rights, we start to get into a battle between you and me about what I can do, and what you can do, as opposed to what the society we live in permits us to d o . "  158  Here the responsibilities that should inform everybody's action would be those codified i n moral rules o f conduct on which a supposed societal consensus pre-exists. In this view these moral rules, arguably, should become indistinguishable from legal rules. suggest that opposing the rights framework and the responsibility framework in the guise of alternative models begs some questions.  84  However, the Court in  Butler was working within a discourse o f rights -  specifically those guaranteed in the Charter- and not one that prioritised responsibilities at the exclusion o f rights. I suggested in the previous section that within the (modern) discourse o f rights, notions o f responsibility are still relevant, and they take the form o f the harm principle, which reflects the inter-subjective dimension o f any exercise o f rights. Still, responsibilities, in the framework o f the liberal discourse o f rights, rather than merely codifying pre-existent social relations, become, ideally, open to negotiation (although, admittedly, i n practice that may not always be the case). The harm principle, then becomes a contested site for interpretation. There is some general understanding, however, that not absolutely anything may become  'harm'  for the purposes  of  establishing legal responsibilities. This stems from the recognition that rights and the harm principle constitute a useful organising discourse in societies where people are likely to subscribe to a variety o f different values. This circumstance (namely, diversity o f values) involves both the necessity that responsibilities be open to renegotiation and, at the same time, that there must be some shared experience on the basis o f which harm can receive a meaning. Consequently, such harms as physical harm -universally experienced as painful- can easily translate into legal rules imposing reciprocal responsibilities. Other kinds o f harms, more contested (or for remedying which there are no  agreed-upon  responsibilities) become a basis to impose legal responsibilities only when  some  discourse becomes prevalent (as happens when with a different political force taking up the government o f the country a shift in economic or environmental or sexual policy occurs). Other harms still tend to circulate into society unrestricted by the law but checked by other, more circumscribed, social discourses. This tends to happen probably when the harms are  highly contested; or when their circulation is tolerated by the law to  the extent that recognising such harm would entail the imposition o f a responsibility that would not merely limit, but eliminate another person's or group o f persons' rights; or when circulation may be tolerated because the harm is not generally perceived as serious enough when compared to the competing interest upon which recognisance o f the harm at issue would impact. 158  Statement reported in D. Herman,  supra  note 123 at 58.  85  While -as shown by the statements, reported above, o f the Salvation A r m y captain- the responsibility model lends itself to justifying pornography regulation on the ground o f conservative morality, dealing with the discourse o f rights made it less easy for the Court in Butler to accept the regulation o f pornography on such a basis. This is because the Court must have felt that considerations about obscenity regulation for the protection o f public morality/sexual propriety can ultimately be reduced to the protection of offended sensitivities:  but, as we have seen in the introduction, legal liberalism,  159  which is reflected in the  Charter discourse o f rights, makes it difficult (although,  conceivably not impossible) to accept that offended sensibilities amount to 'harm' for the purpose o f limiting freedom o f expression. in  160  In this sense the discourse o f rights worked,  Butler, so as to limit imposition o f responsibilities not to offend the prudish, as the  Court felt it would have been very laborious to justify such responsibilities within the framework o f that discourse. Still, the  Charter discourse o f rights lent itself to valorise responsibilities exactly  to the extent that they could be squarely cast in the form o f the harm principle. Radical feminism offered precisely a way to speak o f the consequences  o f pornography  production/consumption i n terms o f harm rather than offended sensibilities. Thus radical feminist rhetoric was appropriated by the L a w , interested i n exploiting the regulative possibilities o f the former. W e already know, however, that appropriation o f radical feminism was not an easy operation at all stages: even i f dominance feminism describes certain consequences of pornography that -as opposed to offended sensitivities- can be easily called harmful, it This is obvious for the Miller standard of American obscenity laws (see supra note 73 and accompanying text), but it seems true also for the British test for obscenity, established in R. v. Hicklin (1868), L.R. 3 Q.B. 360 (Q.B.), and formerly adopted by Canadian courts as well. Under Hicklin restrictions on obscenity were justified because pornography was believed to have a tendency to deprave and corrupt those in whose hand it might happen to fall. This standard has to do with notions of moral 'degeneration' that once might conceivably have been perceived as connected with the disintegration of society. In this day and age, however, saying that we want to protect the consumers of pornogaphy from moral depravation sounds like a quick way to signify that we want to protect the persons concerned with the moral corruption of their weak fellow beings from being offended by what they perceive, precisely, as moral degeneration. Judith Butler underlines that "it appears that there is no language specific to the problem of lingusitc injury, which is, as it were, forced to draw its vocabulary from physical injury:" J.P. Butler, Excitable 159  160  86  was far from settled that pornography should bring about those consequences at all. In other words, it appeared difficult to negotiate rules o f conduct, able to conform to the harm principle, regarding the citizens' relationship to pornography, as the presence o f harm in the first place was, to many, counterintuitive, and, furthermore, the authority o f the discourse o f the Social Sciences could not be directly exploited by the L a w because o f the former inconclusiveness in relation to the harms produced by pornography.  161  Still, the Court must have thought that pornography needed regulation, i n one way or another. So what did the judicial discourse in Burfer do? . The Court justified the rules o f conduct codified in  Butier by using, as we have  seen i n chapter one, principles o f constitutional adjudication that worked in such a way as to legitimise the legislature's apprehension o f harm- namely, the implication according to which 'low value speech' + 'controversial issues' -* 'deference to Parliament.' This operation could be seen as still consistent with the discourse o f rights, as it may suggest that the rules o f conduct set out in s.163 are those codifying responsibilities whose meaning has been accordance  negotiated by the representatives o f the people (Parliament) in  with the harm principle (entitlements/rights  model), rather than those  translating into law a supposed pre-existing societal consensus about pornography (responsibilities model). But is this really the case? The Court was supposed to use the entitlement model and the hann principle, in so far as it was working within a framework, and by virtue, o f a discourse o f rights. Still I would suggest that the Court's reasoning, in regarding deference to Parliament as decisive for settling the problem it was dealing with, relied heavily on having previously compounded the rights model with the logic o f the responsibility model. When the Court, at a previous stage, had emphasised the relevance o f the community standards test,  162  it  was suggesting that the criminalization o f obscene material was possible precisely thanks to identifiable standards o f  the community as a whole capable o f deciding what sexually  explicit expression exploits sex unduly. In doing so, the judicial discourse had Actively  Speech (New York: Routledge, 1997) at 4. This might suggest that discourse is unable to convincingly sustain that emotional/psychological offence is, unambiguously, 'harm.' See Butler, supra note 1 at 502. See Butler, supra note 1 at 483-5. 161  162  87  presented the community as sharing an understanding, a consensus about pornography, that was truly only limited to its radical feminist elements.  163  O f course, the Law's telling  the community that the community itself believed pornography to be harmful, was (and it still is) i n actuality the imposition o f a norm (after all isn't that what the law is supposed to do?), in particular one enjoining the community that they  should believe that  pornography is harmful. Still, it is arguably by relying on this previously constructed fiction o f a societal consensus about the harmfulness o f pornography that the argument o f deference to Parliament can be taken as decisive. In fact, that argument, alone, would have still left open the question o f the basis on which Parliament had a reasonable  apprehension o f harm, as only such an  apprehension would have allowed the legislature to negotiate rules o f responsibility governing individual conduct relating to harmful pornographic material (s.163). B u t the argument o f adopting a deferential attitude towards legislative choices was able to become conclusive to the extent that it benefited from the echo o f a previously expounded notion o f a pre-existing societal consensus about the harms o f pornography (and therefore about which conduct it is responsible to take in relation to it). I f such consensus was fictively introduced, it was possible to see the legislature, i n its position o f representative of the people, as translating the shared understandings o f the community into law, and to do that un-problematically (for, the consensus fictively being presented as one o f the community as a whole, there was no minority view to take into account). This operation, through which the Court practically injects the logic o f the responsibility model into the entitlement model, is yet another o f those rhetorical devices/universalising gestures that allow the judicial discourse o f  Butler to successfully  exploit the regulative possibilities o f radical feminism. If this account makes sense, models centred on responsibility would, at least in the context o f western societies, appear peculiarly apt to help the L a w reach precisely those results that lesbians and gay men, when they engage with court litigation i n cases such as  Little Sisters, are interested in challenging.  See supra note 111 and accompanying text.  88  IV: The Flexibility of Rights.  Rights are also considered problematic i n that there can be clashes o f different rights (which means the 'right' right w i l l not always w i n over the wrong one), and there can be rights appropriated by the powerful.  164  However, the flexibility o f rights, in terms o f their comparative openness to successful deployments by different actors, needn't be seen as a negative feature. In the case study I am dealing with, there is substantial disagreement on the question o f whether,  and the extent to which, pornography  should be regulated.  Considering the divisions existing among and within progressive social movements over what can be called a progressive achievement, i f it is true that different, possibly competing, claims can be voiced employing the discourse o f rights, rights talk provides us  with  an opportunity  to debate,  both  i n and outside  the courtroom,  the  protection/privileging o f any given interest. W h i l e the discourse o f rights, i n Butler, provided an opportunity to transfuse into law  the egalitarian concerns o f radical feminists (as well as the interests  o f the  aficionados o f conservative sexual morality, who had reason to approve the substantial results brought about, i f not the motivations of, the decision), different  Little Sisters tells a  story. W i t h the various perspectives taken by the plaintiffs and by the  interveners L E A F and E G A L E ,  Little Sisters shows how rights claims on an issue related  to that decided i n Butler can potentially support perceptions o f the social good that differ. considerably from orthodox radical feminist views. Courtrooms, on their part, may offer a forum for debating such perceptions. The owners o f the 'Little Sisters Book and A r t Emporium' and the B C C L A espoused the view that [§ 156:] the Court should simply strike down the impugned provisions o f the Customs Legislation ... [pursuant to the] submission that there is a sufficient nexus between the Customs Legislation and the detention and prohibition o f non-obscene expression. Such infringements have no possible justification under section 1 o f the Charter. "Reading down" is not 164  See C. Smart, supra note 33 at 145-6, 153-9; and J. Bakan, supra note 52 at 87-100.  89  necessary i n this case, although the Customs Legislation is, a fortiori, unconstitutional insofar as gay and lesbian and textual material is concerned given the extreme imbalance between the deleterious effect o f the Customs Legislation on such material and the Customs Legislation's negligible, i f any, salutary effect. The alternative remedy o f "reading down", however, w i l l need to be considered i f the Court concludes that the infringement o f non-obscene expression is not, i n any way, caused by the Customs Legislation. However i n that case, the objective o f the Legislation would still not be pressing and compelling especially where gay and lesbian material and/or textual material is at issue. The Customs Legislation, having failed the first branch o f the Oakes test (and indeed other branches as well) must therefore be read down so as not to apply to gay and lesbian and/or textual material. Likewise the Customs Legislation should, at a minimum, be read down i f it is ruled to violate section 15 o f the Charter. 165  E G A L E ' s main points seem to have been that [§ 11:] the Customs Legislation fails to take account o f our disadvantaged position as lesbians, gays, and bisexuals i n a heterosexist society. It consequently has the following disparate and adverse effects on our communities: (i) its deleterious effects are more severe for us than for the majority heterosexual population; (ii) it results i n the detention and seizure of a disproportionately large quantity o f homo-erotic imagery and text; and (iii) it has a greater "chill" effect on freedom o f expression i n our communities than i n society at large ... [§ 40:] The Butler analysis o f the harmful effects o f mainstream pornography is so embedded i n a heterosexual context that it does nothing to elucidate the effects o f lesbian, gay, and bisexual pornography. There is no sound basis to assume that the harm perceived to be caused by mainstream pornography is also caused by lesbian, gay, and bisexual pornography. 166  L E A F submitted, among other things, that [§ 28:] while the harms-based equality approach to obscenity law articulated by this Court i n Butler must remain the cornerstone o f obscenity law, a more constitutionally sensitive analysis o f obscenity law is now required ... [§ 31: Materials which appear to eroticize exploitation or subordination or which appear to entrench discriminatory stereotypes based upon, for example, sex, sexual orientation, race, disability or age are much more likely to be harmful. However, it is only upon a critical and thorough examination o f the impugned materials i n light o f the evidence Appellants' Factum, supra note 101.  EGALE Factum, supra note 100.  90  presented on harm that the principles i n Butler can be applied i n a constitutionally sensitive and appropriate manner ... [§ 2: T]he Customs Tariff... denies the constitutional equality and expression rights o f lesbians and other disadvantaged groups. This regime is unconstitutional because it fails to provide mechanisms to guard against misuses o f the censoring power and it is wholly unsuited to making the factual and legal determinations, including the constitutional equality analysis, which should be required before any materials are found to be "obscene" and, as such, prohibited. 167  The contentions o f L E A P seem also to point towards an enhanced intra and intergroup dialogue within Canada's feminist movement. The absolute valorisation o f an orthodox radical feminist position that characterised L E A F ' S stance in Butler seems to have given way, i n Little Sisters, to a more nuanced perspective that attempts to take into account, and compound, a wider range o f feminist views. In particular, it seems that the potential that the rights discourse presented for re-negotiating, i n the Little Sisters trial, the operativeness o f s. 163(8) as it had been defined i n Butler offered an opportunity to heighten feminists' sensitivity to the problem o f the marginalisation o f many lesbian voices. In this sense, i f the  Little Sisters trial is in any way instructive, then that seems to  be i n the sense that the flexibility o f rights can be potentially beneficial to lesbians and gay men fighting for equality o f concern and for their freedom not to be silenced by the state  either  or private actors, in and outside the courtroom, inside and outside the  formations o f the c i v i l society.  A s regards specifically conservative forces' appropriation o f the rights discourse, a few brief observations may suffice. Davina Cooper speaks, from a post-Foucauldian perspective, o f four dimensions of power: ideology, force, discipline, and resources. She defines the fourth mode o f power as one which "works through its ability to create a material advantage that can be both acquired and deployed, for instance, legal rights."  167  168  LEAF Factum, supra note 47. D. Cooper, supra note 134 at 22.  91  168  Once rights are thus understood as resources, the fact that they can be appropriated for different ends, and even to serve conservative agendas, appears less scandalous, much more so that it is not clear how frameworks that can be conceived as alternative to the rights model could eschew being used by regressive movements. It can be argued that the responsibility model, above discussed, proves precisely this. In the previous section I have contended that the only way to conceptualise the responsibilities model i n such a way as to make it a true alternative to the rights discourse is to conceive the former as one that takes pre-existing obligations (i.e. responsibilities) as given and binding: for where obligations become open to debate and re-negotiation the responsibilities model is indistinguishable from the entitlements/rights model, that focuses precisely on the continuous re-definition o f the limits to exercising rights. In the context o f Western societies, as we have seen, emphasis  on a thus conceived  responsibility model proves particularly serviceable to conservative ends when obscene expression is at stake, as this model can easily justify the enactment o f laws restricting pornography on the basis o f public morality/sexual propriety considerations. From this perspective, although rights can be appropriated for regressive ends, it seems clear that in western societies lesbians and gay men's recourse to the entitlement model is not necessarily the least promising strategy to support their claims to self- and sex expression.  V: The Rigidity of Rights: the Constraints of Liberal Ideology.  I. Atomism.  From a Marxist perspective, rights have also been the object o f a critique not so much because o f their being a purely discursive projection o f liberal capitalism and as such inherently flawed, but rather because o f the constraints that liberal ideology puts on the discourse o f rights, which, i n itself, would otherwise be well amenable to actually progressive re-configurations and deployments.  92  Joel Bakan, i f I understand him correctly, argues that constitutional litigation in Canada is ideologically shaped by the liberal tenets o f anti-statism and atomism,  169  which  impede the actualisation o f the emancipatory (non-liberal) potentialities o f the discourse of rights.  170  Bakan holds that the greatest ideological constraint is atomism,  171  which  would prevent truly progressive advancements even i f we could possibly overcome the obstacle o f anti-statism.  172  Atomism, as he defines it, conceptualises life's complex realities in rightsbearer/duty-holder relationships. A s a consequence, "[p]ower relations and social conditions beyond the rights/duty dyad are irrelevant; disputes are considered and resolved by adjusting the relationship between the two disputants."  173  This means that, in  particular, "[ejquality rights claims are thus unable to get at the causes o f inequality and other social ills; they deal only with discrete symptoms leaving underlying social structures untouched."  174  In sum, rights could hypothetically be used to promote actual progressive change; but in actuality they can do little to advance progressive social movements' agendas because they are colonised by liberal ideology, especially through atomism, that limits the concerns o f rights to the symptoms rather than the causes o f injustice. Should this analysis dishearten gay men and lesbians seeking to achieve greater expressive freedom and avoid discriminatory treatment? I think it should not, in so far as, it seems to me, the argument that rights are atomistic, in that they deal with discrete symptoms rather than underlying causes, cannot be un-problematically applied outside a framework that draws distinctions that are roughly analogous to the Marxist notion o f 'infrastructure/superstructure',  where 'infrastructure'  = cause  and 'superstructure'  s  'symptom'. Cause/symptom arguments can be valuable to the extent that they alert us against the risk o f taking change for granted just because we have scored a victory in the courts.  169  See J. Bakan, supra note 52 at 47 ff.  1 7 0  See ibid, at 60. Set ibid, at 51.  171  172  See ibid, at 48, 51,54.  173  Ibid, at 47.  174  Ibid, at 51.  93  Still, they can also be seen as somewhat too suggestive o f "the "theory" o f the weakest link: a local attack is supposed to have a sense and legitimacy only when directed towards the element which, when broken, w i l l permit the total rupture o f the chain: local action then, but which by the choice o f its emplacement w i l l act radically on the whole."  175  Applied to litigation, i n order to deny its potential for contributing to bring about progressive change, this theory at best underestimates the empowering effects that may follow from a successful rights claim, and at worst seems to downplay the meaning o f over-determination. A s Cooper highlights: "[I]f there is no primary determinant, i f social life is overdetermined by the constant articulation and rearticulation o f different elements, the effects o f political strategy are both . . . complex and uncertain."  176  This seems to suggest that we should be heedful o f the caveat not to let down our guard (after the successful outcome o f a case) not so much because o f the idea that in the courts we can deal only with symptoms, but rather because we recognise that inequality, as the product o f social and discursive practices, is structured on a number o f intersecting and mutually conditioning levels; that, moreover, it is often difficult, i f not impossible, precisely to isolate the  determining causes, as opposed to the determined symptoms, o f  inequality; and that therefore a strategy that recognises the need to work on several levels is probably the most promising.  177  M. Foucault, "Power and Strategies: an Interview with Michel Foucault conducted by the Revokes Logiques Collective" (J.B Borreil, G. Fraisse, J. Ranciere, P. Saint-Germain, M. Souletie, P. Vauday, P. Vermeren) in M. Morris and P. Patton, eds., Michel Foucault: Power, Truth, Strategy (Sydney: Feral, 1979) at 57. D. Cooper, supra note 134 at 132. Even accepting the distinction cause/symptom, besides, the characterisation of atomism as a constraint of liberal ideology that makes the rights framework end up dealing only with symptoms fails to convince me. Let me consider an example. Let us suppose, counterfactually, that anti-statism/anti-collectivism were no longer a problem in Canadian society, and courts could therefore impose duties directly on private actors. We would be left with atomism, i.e. a framework according to which social relations are read when the rights discourse is employed to amend those relations. Would this framework alone be sufficient to prevent the changing, for example, of the economic infrastructure based on private ownership of the means of production? Couldn't we say: "All the members of Canadian society are entitled to the right of economic equality, and therefore all those who possess the means of production have a duty to transfer their ownership to the state"? Surely this atomistic framework of rights-bearers/duty-holders does not look like a hindrance to, but rather like the means to conceptualise, a change that, far from dealing merely with symptoms, would affect the actual background relations of class domination (granted, I might be missing something here, but if I am, I am not sure what that is). This makes me wonder whether it is not the case that atomism is not a constraint imposed by liberal ideology on an otherwise more flexible rights discourse, but rather a pretty neutral -and, actually, occasionally enabling- structural element of the rights discourse. 175  176  177  94  These observations seem to fit the case o f lesbians and gay men's legal battles to affirm their freedom o f sexually explicit expression and their right to equal treatment peculiarly well. From the point o f view o f freedom o f expression, one o f the causes limiting i n Canada the availability o f existing lesbian and gay pornography is the very existence o f the customs legislation. This does not mean, obviously, that there are no other causes for gay men's and/or lesbians' less than full enjoyment o f freedom o f speech, whether sexually explicit or not (e.g., social prejudice that silences homosexuals or drives much o f their expression 'underground,' and lack o f pay equity for women that makes lesbians whether single or not- disproportionately likely to lack the resources to engage i n meaningful freedom o f expression activities). It means, however, that striking or reading down the customs legislation would effectively remove one o f the obstacles to lesbians' and gay men's freedom o f speech. Besides, even accepting that discriminatory obscenity laws as the customs legislation are the legal projection, and therefore a symptom, o f an unjust (heterosexist) order that, i f rectified at a more profound level, would bring about the disappearance o f such unjust laws, that does not exclude that repeal (or modification) o f those laws can be precisely one o f the causes o f the rectification o f that system, i n at least three senses. First, as we have seen, an enhanced circulation o f gay and lesbian material can contribute to the displacement o f both sex binarism and the matrix o f compulsory heterosexuality. Second, i f it is true that law as a discourse has a powerful potential for disqualifying other knowledges,  178  the general appreciation o f some sort o f courts'  sensitivity for the rights o f lesbians and gay men may be thought to contribute, however to a small extent, to change for the best attitudes towards the homosexual 'other.'  179  Third, pornography can be 'bracing' for the sense o f agency o f lesbians and gay men, which is crucial in their struggle for equality: [§ 6:]Sexually explicit lesbian, gay, and bisexual materials not only render homo- and bi-sexual desire visible (in a society i n which heterosexual 178  179  See C. Smart, supra note 33 at 4-20. See also D. Herman, supra note 123 at 4, 19.  95  desire is omnipresent and overwhelming), they also enable us to claim and exercise agency over how our sexualities get constructed, defined, depicted, described, and represented. This is particularly important for lesbians and bisexual women, whose sexualities are often appropriated, distorted, and packaged for heterosexual male consumption in mainstream pornography ... [§ 9:] A l l forms o f sexual representation are part o f an inherently political discourse about such fundamental issues as identity,humanity, passion, power, control, vulnerability, trust, respect, intimacy, and, o f course, sexuality. Lesbian, gay, and bisexual materials make an important contribution to that discourse. They thereby operate as a socializing force, provoking informed discussion among lesbians, gays, and bisexuals, through which we create networks, forge social and political ties, and develop vibrant communities. 180  The complex way i n which equality and freedom intersect in the case o f lesbians' and gay men's pornographic expression seems to suggest that there is no single/simple cause for injustice, that a rigid  distinction between  determined  symptoms and  determining causes is somewhat misconceived, and that the statement that rights are fit to deal merely with the symptoms, rather than the causes o f injustice, might be reformulated to the effect that rights strategies and court litigation, i f deployed i n isolation and outside a set o f integrated strategies, are likely to yield only partial results.  2. Antistatism.  Anti-statism is the lack o f trust i n public authorities, which makes the Canadian  Charter a means to check their, rather than private actors,' action (although, e.g., i n discrimination cases, private actors' acts can be reached indirectly by subjecting to Charter review human rights legislation that regards them). Besides, anti-statism prevents the courts from imposing positive duties on the government to redress social inequalities (although, when the government has chosen on its own initiative to provide a benefit, the courts can oblige it not to do it i n a discriminatory fashion).  0  1  EGALE Factum, supra note 100. See J. Bakan, supra note 52 at 47-48.  96  181  Bakan characterises anti-statism as ideological in that it is "anchored in historical forces "and institutions."  182  This would seem to imply the corollary o f its inevitability until  the capitalist infrastructure is itself subjected to a radical change. What does this analysis o f antistatism as a tenet o f liberal ideology investing the rights discourse tell us about the likelihood o f success and the significance o f gays and lesbians' litigation i n freedom o f expression cases involving obscenity, and particularly, lesbian and gay pornography?  2(a). Antistatism and Judges  It would seem that a consistent antistatist ideology influencing adjudicators in obscenity cases should favour the cause o f lesbians' and gay men's freedom o f sexually explicit expression and equality, at least in the sense o f allowing them to achieve the short term result o f having such laws as the customs legislation removed (with the aforementioned  connected beneficial consequences  potentially ensuing from  such  removal). There are two reasons that account for the fact that anti-statism here needn't be seen as detrimental to progressive achievements (as is instead generally the case in Bakan's analysis). First, as I have tried to show in the previous and present chapter, an anti-censorship position regarding obscenity has at the very least no less reasonable a claim to be called 'progressive' than a pro-censorship, radical feminist one. Second, an 'antistatist' decision here, given the controversial nature o f the type o f expression at issue, would be likely to mean simply that the judge endorsed the view that "[cjivil rights and liberties are essential components o f a just society, and with the increasing influence of conservative ideas in mainstream politics, we should not take for granted protection from arbitrary, capricious, and discriminatory state action".  183  The problem, o f course, is that nothing like an anti-statist ideology seems to have played a major role i n neither  182 183  Butler nor the Little Sisters case.  See ibid, at 60.  Ibid, at 56.  97  The only bit o f  Butler that, i n an otherwise overwhelmingly pro-'state action'  decision, seems to express antistatist concerns is the point at which Sopinka J. reminds us that private consumption o f obscenity is not actionable under s.163 Court does that to justify state censorship). A s to  184  (and even there, the  Little Sisters, the trial judge's view that  it behoved himself -at the same time as censoring the arbitrary, biased application o f the legislation- to specify that customs public servants  (i.e. state) officers are "intelligent, conscientious  endeavouring to perform a complex and difficult task in adverse  circumstances" (emphasis added)  185  reflects the loyalty o f an insider to its organisation  which, i n the circumstances o f the case, is all but insulting. H o w come antistatism, as an ideological constraint supposed -by virtue o f its being ideological- to almost necessarily close in upon the rights discourse, fails to inform this discourse when obscenity is at stake? This peculiar relationship between antistatism and obscenity still fits Bakan's analysis, as at some other junctures he underscores the fact that dominant ideology is not a uniform whole, and can therefore positions"  186  give birth to "competing, even contradictory  (elsewhere he highlights the appeal o f social-democratic values to Canadian  political culture ever since W o r l War II).  187  Some elaboration on Bakan's understandings o f ideology might suggest that when he seems to refer to an ultimately unchangeable (as long as the infrastructure is left intact) anti-statist dominant ideology he has chiefly in mind, considering the centrality o f the institution o f private property in his reflection, precisely that form o f anti-statism that finds substance in positions decrying publicly driven economies and the abolition o f private property. When, on the other hand, he is speaking o f dominant ideology as possibly contradictory, he is allowing forjudges hatching either some sort of'anti-statism' that is not necessarily undesirable (considered that the risk o f arbitrary state action is a  Butler, supra note 1 at 507. Little Sisters, supra note 18 at 554. J. Bakan, supra note 52 at 113. See ibid, at 98-9.  98  reality) or one that is not unambiguous, to the point even o f anti-statism giving way to quite an opposite feeling.  188  Taking thus notice o f the non-responsiveness  o f Canadian courts to anti-state  ideologies i n obscenity provisions suggests that, at least i n the foreseeable future, there is little likelihood that  Butler w i l l  be reversed. A s regards specifically the  Little Sisters  case,  the Supreme Court pro-'state regulation' stance makes it conceivably difficult for it to accept arguments that underline the harmlessness o f gay and lesbian pornography, and therefore imply the suggestion o f deregulating it for absence o f pressing and substantial legislative objective. O n the other hand, it is not unconceivable for the Court to strike or read down the legislation on the basis o f its unjustifiably disproportionate impact on gay and lesbian pornography, or on the basis o f the legislation's potential for reaching nonobscene expression. But the Court's sympathy for state regulation o f obscenity suggests that the justices would thus strike or read down the customs legislation only to the extent that they were reassured that the legislature would be ready to re-enact some other  In fact, it may be (rue that ideologies are given birth in connection with given social relations that they are supposed to, and help, serve: but this does not mean that dominant discourse leaves no space for opposition within its own terms. By this I do not mean that the system allows a certain degree of opposition to be effected through the system's language only because the system is ready to reabsorb the antihegemonic episode at the same time as leaving the self-serving and false impression that opposition and change through the system's language are a reality- as if a certain degree of opposition to the system is already organic to, in that it is organised within and by, the system. My contention is in fact the stronger claim that the system, organised along axes of class, gender, and race inequality, is far from being a perfect machine, a homogeneous whole that contrives to make relations of domination always, in the last resort, be affirmed through its own language. As the case of antistatism shows, dominant ideologies are not unproblematically self-consistent and crystallised. Ideologies are rather self-contradictory, and they intersect with one another, and while constraining the strategic choices of progressive social movements they also enable them. Besides, not only is it the case that the complexity of the system is reflected in ambiguities and contradictions in the system language, (see J. Bakan, supra note 52 at 113) -i.e. dominant ideologybut also it is sensible to believe that appropriation of the system language by oppositional forces does not leave the language itself intact and unchanged. Surely, as Herman affirms, "[fjhere is ... no reason why progressive social movements necessarily rearticulate rights in such a way as to challenge status-quo social relations," (D. Herman, supra note 123 at 65) but then neither the reverse can be assumed (nor does she assume it, for that matter). Stressing that the liberal framework of the discourse of rights is not subject -as the very polysemic nature of the term "liberal" suggets- to an inescapable liberal, in the sense of nonprogressive, ideology -like a consistent anti-statism, or, in the field of anti-discrimination laws, the minority paradigm (for which see infra in the text of this chapter, section V(3))- is meant to support the contention that, even in our present time and place, rights, if employed critically and especially in conjunction with other strategies for change, need not be seen as incapable of achieving (admittedly: in some contexts more than in others: see D. Herman, ibid, at 51) valuable results for social movements, that can go beyond their utility merely as mobilising tools (for the notion of rights as tools for political mobilisation, see S.A. Scheingold, supra note 157 at 131 ff; and D. Herman, ibid, at 48-9). 188  99  customs obscenity laws not reproducing the shortcomings o f the impugned regime; or, at a minimum, that there still are obscenity provisions in the criminal code which can be used by the state to control obscene material that, in the absence o f any customs legislation, would end up crossing the border undisturbed.  2(b). Antistatism and Anti-Censorship Claims.  In specifically discussing the negative effects o f antistatist ideology on litigation about freedom o f expression issues, Bakan affirms that the social constraints on people's capacity to communicate effectively . . . are obscured by the emphasis on censorship i n freedom-of-expression discourse. People are wrongly presumed to have freedom o f expression in the absence o f censorship, or at least that seems to be the implication o f anti-censorship positions. 189  To illustrate his point, he refers explicitly to the  Little Sisters case, contending that  this case can only very minimally enhance the communicative power o f lesbians and gays. It focuses narrowly on a discrete set o f governmental restrictions on expression and does not touch the institutionalized exclusion o f lesbian and gay knowledge ... N o r does it contemplate the power o f homophobia to restrict, though discrimination and violence, the expression o f lesbian and gay identity ... While I fully support the Little Sisters Bookstore . . . the intense focus o f the anti-censorship movement on discrete state restrictions on freedom o f expression effectively masks, or at least de-emphasizes wider repressive processes. 190  In many cases, therefore, the problem with anti-statism may be less that o f one's being sceptical about the wisdom o f public authorities than that o f one's loosing sight o f the oppressive relations among privates.  191  In m y view, the sort o f anti-statism which supposedly animates gay and lesbian anti-censorship claims is not o f any truly dangerous type: there is little likelihood that lesbian and gay anti-censorship activists, whose life experience contemplates a fair share J. Bakan, supra note 52 at 70-1. Ibid, at 71.  100  of homophobic social intercourse, and who have to put up daily with presumptions o f heterosexuality, w i l l overlook the oppressive relations that characterise their everyday life in c i v i l society and ascribe to the state the source o f their evils. A t the same time, some o f them w i l l nurture anti-state feelings (in the form o f misgivings about the wisdom o f state officers) that are probably healthy and justified to the extent that they derive from experiencing discrimination at the end o f public authorities. Besides, while I suggest, for the reasons already expounded in the previous section, that the positive effects (for gays and lesbians expression/equality) following a constitutional challenge against obscenity legislation needn't be seen as limited to the removal o f the repressive state action, I also note that the plaintiffs' and the interveners' factums i n the  Little Sisters trial did not fail to bring to the fore precisely the  marginalisation o f lesbian and gay voices i n society at large (and the extent to which state censorship contributes to it): [§ 4:]To the extent that our sexualities are acknowledged i n mainstream advertising, literature, visual art, or other media, the representations are usually inaccurate and/or pejorative. The dominant cultural discourse on sexuality privileges certain (heterocentric) conceptions, descriptions, and depictions o f sexual identity and reality, while marginalizing others. The unequivocal message conveyed by mainstream cultural representations is that heterosexuality is the (almost universal) norm, and our lesbian, gay, and bisexual sexualities are unnatural, deviant, and perverse ... [§ 10:] Since all forms o f lesbian, gay, and bisexual literature are essential to the health and vibrancy o f our communities, and since much o f that literature is not readily available in mainstream bookstores and libraries, the bookstores that specialize in publications produced by and for lesbians, gays, and bisexuals effectively operate as indispensable community resource centres and gathering places. In addition to selling periodicals and books, they display and circulate free literature, post notices and disseminate information about community organizations and meetings, and host and distribute tickets for social and cultural events. Unfortunately, there are only a handful o f such bookstores in Canada. They are all small independent businesses with limited financial resources. 192  191  See ibid, at 47, 71.  192  EGALE Factum, supra note 100.  101  It could be argued, admittedly, that the actors in the  Little Sisters trial might have  gone further, demanding direct state intervention to promote marginalised queer views, rather than limiting themselves to asking for the removal o f state limitations on the expression o f those views. It is not clear, however, whether failing to ask for positive state action was here the consequence o f suspicion o f state power on the part o f appellants and interveners rather than, perhaps, a strategic choice o f theirs motivated by the consideration that, e.g., the time was premature, or the circumstances o f the case were inadequate, to sustain such a request.  3. Equality Claims and the Minority Paradigm.  D i d i Herman states: "Legal liberalism ... assumes a series o f truths: society is pluralistic, there are majorities and minorities, true democracy necessitates the protection o f minorities from the tyranny o f majorities and true minorities share characteristics that differentiate them from the majority n o r m . "  193  The presently hegemonic "minority paradigm" is said to be part o f this ideology.  194  According to it, individuals are encoded in categories defined by a shared  characteristic o f the members o f the group, -e.g.: sexual orientation- that makes them stand out as 'others' against the assumed, and therefore unquestioned, background norm e.g.: straightness, itself a category relying on such taken for granted truths as the dichotomous nature o f sex and the continuity between sex and desire.  195  In discussing equality clauses proscribing discrimination o f minorities, Herman highlights how the minority paradigm can be unsatisfactory or counterproductive. In particular, equality rights for lesbians and gay men granted on the basis o f their belonging to a sexual minority conceived as  other than an assumed heterosexual norm at best leave  untouched, at worst contribute to depoliticising, and therefore reproduce, the problem o f 193  194  D. Herman, supra note 123 at 38. Ibid, at 38, 43.  102  gender roles and compulsory heterosexuality-  i.e. the very underlying causes o f  discrimination against queers. Discrimination, then, turns out to be dealt with only in a limiting, hardly effective, and even counter-productive w a y .  196  For the sake o f clarity, it can be noted right now that it is possible to conceive equality claims framed in a way that avoids reproducing the problematic notions lying at the heart o f the equality paradigm. In particular, lesbians and gay men can attempt to communicate that their right not to be discriminated against does not stem from their being human beings just as worthy as heterosexuals, but by explicitly raising the issue that the distinction homo/hetero and the opposition male/female are, for a variety o f purposes, misconceived i n the first place (this w i l l require, in certain cases, not merely asking for the extension o f a 'heterosexual' right to lesbians and gay men, but rather for a restructuring o f the right itself, that in some cases, for example, might have been framed around the model o f the nuclear heterosexual family). Towards the end o f this section I w i l l get back to the issue o f raising equality claims that do not depend on the minority paradigm, mentioning how one such claim was made precisely i n the  Little Sisters trial. N o w I wish to deal with other ways in which the  risks posed by the minority paradigm can be eschewed in deploying rights.  It seems fair to say that equality considerations are a major reason motivating lesbians and gay men when they engage with constitutional litigation to challenge an action that affects them in their capacity as gays, lesbians, homosexuals, women and/or men engaging i n same-sex relationship or sexual activities, etc. The  Little Sisters trial, as  we know, is no exception, nor would any other instance o f gays and lesbians' litigation relating to obscenity laws be likely to be destitute o f an equality component. A s we have seen above, according to Herman's analysis, the minority paradigm is an element o f liberal ideology, and as such hegemonic. This should mean that every time an equality issue is raised by lesbians and/or gay men, the problems associated with the paradigm are disproportionately likely to be involved.  195  196  See ibid, at 38, 44. See ibid, at 32-53.  103  Yet, the minority paradigm -and its problems- needn't become relevant every time gays and lesbians engage with constitutional litigation relating to obscenity laws, however much an equality issue may be actually implicated in the constitutional challenge. In particular, the risks created by the paradigm needn't have been directly involved in the  Little Sisters trial.  Where possible, lesbians and gay men can in fact make a claim that, while still capable o f achieving the desired result, avoids raising the equality issue altogether, so that, in being denied an occasion to make use o f the paradigm, the L a w is not provided with an occasion to reinstall the naturalness o f heterosexuality and sex/gender binarism. In the  Little Sisters trial, for example, the appellants might have chosen to  challenge the Customs Legislation  only on the ground that it constituted a system o f prior  restraints, that non-obscene expression was inevitably caught into its net, etc. It would appear that here the problem is very much like the one analysed i n the section about the subject o f rights, in which it was suggested that it might be desirable to avoid entrusting the L a w with a chance to 'elaborate' on homosexuality at all. I would suggest, i n fact, that the problem is the same. This observation is important, in that, by contradicting (as I w i l l immediately try to explain) the statement that the minority paradigm is an element o f the liberal discourse o f rights, explains in which sense the paradigm is hegemonic (rather than quasinecessarily implicated) when rights talk is undertaken by social actors. Clarification on this point is important in turn because it may highlight the extent to which, when gays and lesbians raise an equality claim (in general or) to counter the effects o f obscenity laws (as they did in Little Sisters), their critical use o f the rights discourse may fail to backfire under the respect o f the L a w ' s discursively reinstalling the otherness o f homosexuality. I would contend that the minority paradigm, rather than being an element o f the legal liberalism o f the discourse o f rights, is produced at the intersection between different discourses. A s far as lesbians and gay men are concerned, I would argue that the discourse with which liberal legalism intersects is precisely that o f the human sciences,  Herman does not ignore -in fact deals extensively with- the relationships between the legal discourse and the one of the sciences of man in court cases involving lesbian and gay equality issues, (see ibid, at 197  104  197  that is mainly responsible for intervening to define the 'homosexual minority,' i.e. to construct it precisely as a minority, and producing reasons to explain and justify its minority status. In this sense, the minority paradigm is better conceived as  composite justificatory  a discursively  framework that today tends to underlie Law's granting o f equality  rights to certain social groups. This conception o f the minority paradigm would seem to better fit a nonessentialising notion o f liberal theory, that, it seems to me, is very ambiguous as regards the way i n which differences should be tolerated,  198  to the point o f making it scarcely  possible for one to find a hegemonic liberal position that privileges the understandings codified i n the minority paradigm. This means that i f there is a specific way i n w h i c h equality/toleration tends to be promoted within the liberal discourse o f rights, - n a m e l y the idea, consistent with the equality paradigm, that the (e.g. homosexual) 'other' should be tolerated precisely as other (than the unquestioned  (e.g.heterosexual) norm)- that  should be ascribed to the relative indeterminacy o f liberal theories, that has been making possible the L a w ' s appropriation, while operating within the framework  o f liberal  128-44) but she does not extend her analysis of such relationships to the issue of the construction of the minority paradigm itself. A great deal of liberal rhetoric about rights and minorities, in effect, is precisely about the value of diversity, not only (a) for its own sake -which is already, I would argue, a step beyond the unproblematic acceptance of the 'normality' of the general norm- but also (b) for its role, in a utilitarian perspective, in facilitating progress and better forms of social life to take hold on society. As to (a), see e.g. S.H. Shiffrin, The First Amendment, Democracy, and Romance (Cambridge, Mass.: Harvard University Press, 1990) where the meaning of the author's wish for a 'whitmanesque' America that celebrates dissent is probably best illustrated by the words of the very poet he alludes to: "Piety and conformity to them that like, / Peace, obesity, allegiance, to them that like, /1 am he who tauntingly compels men, women, nations, / Crying, Leap from your seats and contend for your lives! /1 am he who walks the States with a barb'd tongue, 198  questioning every one I meet, / Who are you that wanted only to be told what you knew before? / Who are you that wanted only a book to join you in your nonsense?" (emphasis added): W. Whitman, By Blue Ontario's Shore, vv. 32-8 (1881) Leaves of Grass. As regards (b) see e.g. J.S. Mill, On Liberty with The  Subjection of Women and Chapters on Socialism (Cambridge: Cambridge University Press, 1989): "Why ...should tolerance, as far as the pubic sentiment is concerned, extend only to tastes and modes of life which extort acquiescence by the multitude of their adherents? ... [T]he man, and still more the woman, who can be accused either of doing 'what nobody does', or of not doing 'what everybody does', is the subject of as much depreciatory remark as if he or she had committed some grave moral delinquency" (68). "[Fjorgetting that the unlikeness of one person to another is generally the first thing which draws the attention of either to the imperfection of his own type, and the superiority of another, or the possibility, by combining the avantages of both, of producing something better than either" (71). Consider, for another example, the rhetoric of the "melting pot."  105  legalism, o f identity notions produced, for instance, by the discourses and practices o f the sciences o f man.'  99  I have suggested that i n the  Little Sisters trial the appellants might have chosen  not to raise the equality issue so as to avoid the Court's likely utilisation o f the minority paradigm. But (besides there being cases, obviously, in which, i n order to achieve their ends, social movements cannot help raising the question o f equality), there can be strategic reasons that militate in favour o f pursuing an end involving an equality issue precisely by raising that issue, even where it would have been hypothetically possible to achieve the end avoiding making the equality claim. In the  Little Sisters trial the choice o f gay and lesbian legal actors to raise equality  arguments i n order to accomplish an end hypothetically achievable by making merely freedom o f expression claims may suggest the plaintiffs and the interveners' believing such equality arguments to be more appealing than free speech ones to the Supreme Court o f Canada; alternatively, raising both free speech and equality issues might have been meant as an extra safe-guard, in case the Court should reject general freedom o f expression arguments. Even the idea that the Court's recognition o f an equality claim would send out a message against sexual orientation discrimination, and therefore the wish to exploit the L a w ' s power to disqualify other knowledges, may have played a role. It is, however, precisely reliance on this o f L a w ' s powers that is hazardous for lesbians and gay men raising an equality claim, as the discursive authority o f the L a w would, to some extent, reinstall oppression where it recognised (or rejected) the equality claim on the basis o f the questionable assumptions o f the minority paradigm. Lesbians and gay men who make equality arguments (either because they have no choice or because they decide to do so) face the difficult situation o f either casting the  The Law may also be thought to draw on itself, on its precedents, in a sense to cite itself, when it makes use of the minority paradigm as described by Herman, in so far as the Law has been contributing to the construction of homosexuality after appropriating this category as it was created in the context of the sciences of men (no need to underline that here the Law cannot be reduced to the discourse of rights, to the extent that it combines liberal theories /ideologies about rights with other knowledges). 199  106  clam i n the form o f the minority paradigm, or taking their chances in terms o f making it look less intelligible or less appealing to those before whom the claim is raised.  200  Still, lesbians and gay men who want to convey oppositional meanings about themselves do not face this difficulty only when they employ the discourse o f rights, i.e. inside the courtrooms, precisely because the problems associated with the minority paradigm do not stem from the discourse o f rights, but rather, as we have seen, from how homosexuality has been discursively constructed in society after the sciences o f men firstly created 'the homosexual.' To the extent that homosexuality,, thus understood, is part o f dominant ideology, every strategy for change that runs counter this common sense notions w i l l be resisted, and the more oppositional (queer) the meaning, the harder the struggle. I f dominant ideology is pervasive, each and every effort o f social movement to install a new regime o f truth is bound to be met with resistance at some (most?) stages.  201  It should be underlined, however, that it is precisely to the extent that the minority paradigm is conceptualised as non-integral to the liberal discourse o f rights itself (or to some hegemonic version o f liberal ideology necessarily investing it), that it is possible to prefigure deployments o f the right to equality that are not doomed to bring about quasi necessarily the utilisation o f the paradigm itself. In the  Little Sisters case,  202  L E A F ' S attempt to convey non-common sense meanings  that challenge the matrix o f compulsory heterosexuality is exceedingly noteworthy: [§ 24:] The equality rights o f heterosexual women are also affected by the targeting o f L G B T materials. These materials benefit heterosexual women because they may challenge sexism, compulsory heterosexuality and the dominant, heterosexist sexual representations which often portray "normal" heterosexuality as men dominating women and women enjoying pain and degradation (emphasis added). 203  Precisely with reference to a case involving equality for lesbians and gay men, i.e. the passing of the sexual orientation amendment to Ontario's Human Rights Code, Herman laments that gay and lesbian groups advocating enactment of the amendment were induced to employ a dubiously useful "low-key argumentation." See D. Herman, supra note 123 at 32-53; quotation at 35. For a convincing account, see J. Bakan, supra note 52 at 68-70. In analysing how to use rights, it is important to highlight the disciplinary dimension of power and the discursive constructions that seem to pertain to it. By doing so we will be less likely to overlook both the emancipatory possibilities of the specifically liberal discourse of rights, and how disciplinary power may be supposed to intervene to limit the liberatory potential of the discourse of rights as well as that of conceivable alternative discourses/sites. LEAF Factum, supra note 47. 200  201  202  203  107  B y making this submission, L E A F  is working to undermine the minority  paradigm that tends to sustain recognisance o f equality claims for homosexuals, introducing i n the courtroom notions capable to redefine the meaning o f those claims.  108  C H A P T E R  III  I: Premise .'Pornography and Hate Speech.  A s we have seen i n the introduction, since the powerful insight provided by radical feminist discourse about sexually explicit representation,  there has been a  tendency to assimilate obscene to hateful speech among commentators adopting either the hate/sex speech regulation position or the pro-free speech stance. The former have highlighted the way in which pornography can be considered, a sub-category o f hate speech because o f the sexist messages it conveys; the latter have stated that precisely the political character -however obnoxious- o f both hate speech and pornography should make them immune from regulation. Chapter one and two considered the relationship between equality-centred antipornography legislation and lesbians' and gay men's concerns for their own sexually explicit representation. In this chapter I turn to the issue o f hate speech, again -after some more general considerations- with an eye to the homosexual context, and specifically the case o f hate speech directed at lesbians and gay men. Some jurisdictions are already endowed with anti-vilification laws, or hate propaganda laws that forbid dissemination o f hatred and bigotry also in cases where this is motivated by sexual orientation (or specifically  homosexuality).  204  These hate  For example, the Canadian Human Rights Act S.C. 1976-77, c. 33, si3(1) provides: "It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination," and among such grounds there is sexual orientation. In New South Wales, it is unlawful to publicly incite "hatred towards, serious contempt for, severe ridicule of, a person or a group of persons on the ground of the homosexuality of the person or members of the group, and it is a criminal offence to do it by means which include threats (or incitement to threats) of physical harm towards the person or group at issue or their property (Anti-Discrimination Act 1977 (NSW) s. 49ZT and 49ZTA): see D. Marr, supra note 10 at 15-16. In the Netherlands, it is a criminal offence to publicly express discriminatory remarks, encourage discrimination, or incite to hatred, discrimination, violence against a group of persons, on the basis of sexual orientation (art.l37c-f of the 2 0 4  Dutch Penal Code): see The International Lesbian And Gay Association World Legal Survey- Country:  Netherlands, online: ILGA <www.ilga.org/Infomiation/legal survey/Europe/Netherlands.htm>.  109  propaganda laws present different features, to the extent that they can provide for criminal or civil remedies; also, i n so far as they are differently worded, it seems that the speech activities covered by the relevant provisions might differ from country to country. They all raise similar issues, however, to the extent that they pose a limit to freedom o f expression which is generally understood as falling short o f the clear and present danger test. These general issues w i l l constitute the object o f m y analysis, while a detailed analysis o f particular national legislations regarding hate propaganda against lesbians and gay men is beyond the scope o f this chapter.  I want to argue at the outset that there is a fundamental difference between hate speech and pornography, that, in a sense, may be seen as making the former a more problematic phenomenon to deal with than the latter for people who think o f themselves and their commitments as progressive. A s we know, in the case o f pornography there is, among and within progressive social movements, a lack o f agreement about the meaning and merits o f the pornographic genre itself. If, i n particular, we take notice o f the range o f opinions that not only dissociate pornography from discrimination and inequality, but also directly link pornography to equality,  205  a pro-censorship stance as regards obscene material in order to  promote equality values loses much o f its credit. A s to hate speech, this may be thought to have, so to speak, an indirect value, to the extent that protecting it should establish a precedent that could be used, at a future stage, to protect the political dissent o f disadvantaged/unpopular minorities that the mainstream would be w i l l i n g to silence. Besides, to the extent that the line between political dissent and hateful speech can sometimes be thin, (depending, arguably, on how widely hate speech is defined) protection o f hate speech would avoid creating a so-called chilling effect on the legitimate and valuable (in terms o f democratic commitments) expression o f such dissent. Finally, hate speech may contribute to the vitality o f opinions emphasising egalitarianism, in so far as such opinions are cogently re-affirmed pursuant  110  to the challenge levelled at them by hateful speech. It can also be argued (albeit, perhaps, less persuasively) that expression o f hate speech may serve as a safety valve for enraged bigots whose frustration may otherwise lead them to commit acts o f violence. However, when, rather than the indirect value o f the expression o f hatred, we consider the meaning and the inherent merits o f hate speech, there seems to be no dispute about either the hideousness o f the former or the unredeemed character o f the latter. This seems to be the case not only in constitutional discourse and public authorities' official positions but also at the level o f progressive social movements' invariable evaluation, and even society's  general perception, o f hate speech. This univocal, strong condemnation  seems often to constrain the problem o f how to react legally to the dissemination o f hate within the boundaries o f the inescapable opposition 'freedom o f expression v. equality.' For people who are strongly committed to both values the problem may become almost intractable. Surely, as we know from the introduction, when freedom. o f expression is involved, there may be reasonable grounds to hold,  as a point of departure, a position  that is prejudiced i n favour o f uninhibited public debate. A bias towards freedom o f expression makes a lot o f sense owing to the 'special status' that is thought to pertain to the value o f freedom o f expression in democratic societies. This special status appears to have been formally recognised both by the Supreme Court o f Canada (in its intentionally  wide and liberal interpretation o f the freedom o f expression guarantee, whose limitations are justified 'belatedly' under the "Guarantee o f Rights and Freedoms" clause)  206  and i n  For various interpretations of pornographic material that view it as not inimical to the idea of women's equality and may actually think of sexually explicit representation as a genre validating gender equality, see also the account given in N. Strossen, supra note 15 at 141-78. In Canada the constitutional guarantee of freedom of expression ensures everybody's "freedom of thought, belief, opinion and expression, including freedom of the press and other media of 2 0 5  2 0 6  communication:" Canadian Charter of Rights and Freedoms, s. 2(b), supra note 55; while the "Guarantee  of Rights and Freedoms" clause states that "[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society:" Canadian Charter of Rights and Freedoms, s. 1, ibid. S. 2(b) is interpreted in such a way as to ensure constitutional protection to speech irrespective of the content of the communication, while s. 1 is used to consider constitutionally admissible what under s. 2(b) may have been qualified as an infringement of freedom of expression. S.S. Anand, "Beyond Keegstra: The Constitutionality of the Wilful Promotion of Hatred Revisited" (1998) 9.2 N.J.C.L. 117 at 120-2, to the contention that the Supreme Court's almost absolute interpretation of s. 2(b) betrays the Court's own previous adoption of the so-called 'purposive approach' in determining the scope of a Charter's right,  111  American First Amendment jurisprudence (that is very radical i n its adopting an approach that takes free speech limits as a finite, low number o f exceptions to the general rule o f unfettered freedom o f expression). Although starting from the same proposition that a strong freedom o f speech principle is essential to democracy, Canada and the United States, as we know from the introduction, were able to reach, as regards the regulation o f hate speech, diverging conclusions. If we consider this circumstance, it is arguable that, in debating hate speech regulation, assuming a position that is mindful o f the need not to encroach upon free speech more than necessary is a somewhat safe starting point. It is true that when odious speech acts such as the dissemination o f hate are at issue, emphasising the foremost importance o f freedom o f expression can be too easily mistaken for, and I believe can actually lead to, downplaying the value o f equality. This happens when, in order to oppose those positions upholding hate speech regulation, classic civil libertarian arguments (however valid) are made at the same time as avoiding joining issue on the contention that hate speech and discrimination are  related  phenomena. Hate speech thus ends up being treated as any other kind o f unpopular expression, without paying attention to the context o f racism, (hetero)sexism and other forms o f bigotry.  207  Nevertheless, the fact remains that freedom o f expression is generally o f utmost relevance, and it is scarcely witty for advocates o f hate speech regulation to discount this relevance. I want to begin m y discussion about hate speech precisely by reminding, selectively, a few general free speech rationales and traditional free speech theory categories, which should convey a sense o f what freedom o f expression is all about. I choose to do this i n the somewhat unconventional way o f considering those arguments  replies that in the case of freedom of expression the purposive approach, far from calling for a balancing of freedom of speech with other Charter values, requires precisely that all content be covered by s. 2(b), "because the purpose of the entrenchment of the freedom of expression was to ensure that everyone could express themselves no matter how unpopular and distasteful such expression seemed" (122). For what I read as an example of this sort of approach see F. Haiman, "Nazis in Skokie: Anatomy of the Heckler's Veto" in T.L. Tedford, J.J. Makay, and D.L. Jamison, eds., Perspectives on Freedom of Speech207  Selected Essays from the Journals of the Speech Communication Association (Carbondale: Southern  Illinois University Press, 1987) at 216-225.  112  that attempt to justify hate speech restrictions by rejecting too easily, or ignoring rather uncritically, even the  general validity o f free speech rationales and categories.  In other words, in what follows I w i l l engage in a critique o f arguments that seem to me to unsuccessfully make little o f freedom o f expression i n order to justify hate speech regulation. This is intended as a way to defend general free speech principles rather than discrediting a priori hate speech regulation itself for, as I w i l l explain i n section III, there are indeed more convincing ways to argue i n favour o f restricting the hateful expression o f prejudice.  II: Supporting Hate Speech Regulation by Attempting to Discredit General Free Speech Principles.  The strain o f arguments that I criticise affirms, for example, that the argument that a commitment to the democratic system o f government requires an unqualified and preeminent commitment to free speech is simply false ... It relies on the proposition . . . that governments, once in possession o f power, ... w i l l revert back to the autocratic powers o f their eighteenth-century predecessors ... The reality is that speech issues raised by hate propaganda today are entirely different than [sic] speech issues that faced fledgling democracies i n the seventeenth and eighteenth centuries. In the context o f western democracies in the twentieth century, this argument is overplayed (emphasis added). 208  A criticism framed in this way seems to deny the continuing validity o f the free speech rationale known as the 'argument from democracy'. The validity o f the rationale is presented as highly contextual: the argument from democracy was appropriate in the eighteenth century, but this is no longer the case in the twentieth and twenty-first centuries and the changed circumstances o f western democracies. I would argue that such an account seems at least to run counter historical reality. The legitimacy o f alive and kicking  seventeenth and eighteenth century seditious  libel laws (proscribing the expression o f criticism o f the government) was little disputed in that period: a government's prerogative to censor political dissent, per se, did not seem  113  to offend many sensitivities.  209  In fact American free speech jurisprudence (i.e. the one  that is maybe the most notable i n developing a theory protective o f  political  speech,  w h i c h is seen as vital to democratic self-government) as well as the correlative increased appreciation o f the function o f the free speech guarantee as largely the democratic one o f protecting political dissent are mainly a precisely as a response to  twentieth century  twentieth century's  phenomenon that started  governmental suppression o f what by any  standard should be considered political (in particular communist) speech. Denying protection to hate speech by indirectly questioning  210  today's practical  relevance o f a general free speech rationale as the argument from democracy " does not 2  K. Mahoney, supra note 11 at 796. For example Locke -the champion of individual rights in the seventeenth century- contended that "[fjhose who are seditious ... ought to be punished:" Locke, A Letter Concerning Toleration, supra note 16; Blackstone -the ultimate authority in English legal scholarship- in the eighteenth century explained that, as long as prior restraints on freedom of expression were not imposed, it was legitimate to punish, after the speech had been uttered, "blasphemous, immoral, treasonable, schismatical, seditious or scandalous libel," where, for the speech to be seditious, a finding that it had a "bad tendency of lowering the public esteem of the Government or disturbing the peace" was sufficient: Blackstone, Commentaries in the Law of England quoted in L.W. Levy, "Liberty and the First Amendment: 1790-1800" in K.L. Hall, ed., Civil Liberties in American History, vol. I (New York: Garland, 1987) 593 at 594 in footnote 6; finally the Sedition Act enacted by the American Congress in 1798 (although short lived) seems to have raised controversy under the respect of its violating the First Amendment more in terms of its transgressing the limits posed by this constitutional principle to the competence of the Federal Legislature (as opposed to the national Parliaments) rather than in the substantial sense of this principle's prescribing an (almost) absolute protection of (political) speech: see W. Berns, "Freedom of the Press and the Alien and Sedition Laws: a Reappraisal" in K.L.Hall, ed., ibid. 104. The clear and present danger test was first formulated in Schenck v. United States, 249 U.S. 211 (1919), and it does not seem to have been originally conceived as a particularly protective standard: the conviction of Schenck that the test then allowed would not have been justified by an application of the test as later 'reinterpreted' by Justice Holmes in his dissent in Abrams v. United States 250 U.S. 616(1919), where for the first time the clear and present danger standard assumed a civil libertarian meaning. See also H.L. Gates Jr., "Critical Race Theory and the First Amendment" in H.L. Gates Jr. et al., supra note 15, 17 at 21: "Indeed, the notion that the First Amendment has been a historical mainstay of American liberty is a paradigm instance of invented tradition. To begin with, the First Amendment was not conceived as protecting the free speech of citizens until 1931. Before then, the Court took the amendment at its word: "Congress shall make no law..." Congress couldn't; but states and municipalities could do what they liked. Given this background, it shouldn't surprise us that even once the Supreme Court recognized freedom of expression as a right held by citizens, the interpretation of its scope remained quite narrow ... until after World War II, when the Warren Court gradually ushered in a more generous vision of civil liberties. So the expansive First Amendment, that people either celebrate or bemoan is really only a few decades old." 2 0 8  2 0 9  2 1 0  To show the continuing validity of the argument from democracy, as far as the U.S.A. are concerned, we can also think of how such an argument is in the way of the always lively attempts to introduce flagburning statutory offences, or, more recently, a constitutional amendment to the same effect. Martha Minow found "disturbing [the] historical junction at which some of us urged greater response to hate incidents on college campuses, to pornography, to depictions of violence, and to experiences of harassment that some would defend as speech, just at the same time that others urged amending the Constitution to ban 211  114  appear, thus, a very promising strategy to convince ourselves o f the soundness o f a prohate speech laws position.  212  Neither, i n m y view, does a critique o f the validity o f the 'argument from truth,' where one shows to have an issue with this free speech rationale not merely as regards the specific problem o f hate speech, but more i n general to show the theoretical inadequacy of the argument itself, o f which the weakness i n hate speech cases appears as merely one manifestation.  In order to discredit the argument from truth i n this way, it seems  necessary to give a seventeenth version o f it that nobody, nowadays, advances anymore. W h e n this free speech rationale is conceived as "[t]he view that the truth w i l l always w i n out i n a marketplace o f ideas," it seems easy to conclude that the argument "is, at best, naive, and at worst, dangerous,"  213  both i n hate speech cases and generally  speaking. For the sake o f making an argument against the freedom to disseminate hate, the argument from truth is presented, i n oversimplified and almost caricatural terms, as one that conceives truth as some fixed entity waiting out there for us to reveal it, and the process that is directed to such a discovery as one temporarily limited, i.e. one with a beginning and an end, the end coinciding with the necessary act o f discovery. This  flag burning and restricting public funding for the arts if they offend. The brutal repression of the Chinese student protests at Tienanmen Square accentuated the difficulties of attacking first Amendment analysis of American college campuses:" M. Minow, (1990) 11 "Speaking and Writing against Hate" Cardozo Law Review 1393 at 1403. However, an extremely narrow (to the point of its appearing, to put it mildly, arbitrary) definition of political speech, which would substantially leave unprotected such speech as the one at issue in Abrams, might possibly accommodate a contention that the need to protect political dissent is no more felt in this day and age. This may be the way in which Mahoney's contentions should be interpreted. If political speech is reduced to "discussion of public issues and free elections" alone -where the latter is taken to give an example of what only can be legitimately conceived as a 'public issue'- which would leave out, among other things, "even ineffectual talk about violent overthrow of democratic institutions" (K. Mahoney, supra note 11 at 796) then it might be that a free speech principle meant to protect political speech would be of little practical relevance today, as it is true that political speech advocating suppression of universal franchise nowadays probably is either non-existent or passes utterly unnoticed. Of course such a narrowly defined notion of political speech would leave unprotected, to name just one, the works of Karl Marx. Ibid, at 799. It should be noted that the author begins by affirming that "the general proposition that open discussion advances the pursuit of truth cannot be questioned," {ibid, at 798), although this statement is immediately qualified, and practically made empty, by the Professor's subsequent remarks (e.g.: " If one looks at other areas of social life where the primary objective is the pursuit of truth, the marketplace of ideas is not the model used:" ibid, at 799). 212  213  115  caricaturised account ignores the contemporary meaning o f the argument from truth, which has a lot to do with the construction o f truth to which the polity democratically participates i n an ongoing process, and little to do with the idea o f ultimate, unchangeable truths that after a limited period o f time magically come to the fore i n conditions o f unfettered public debate. For our purposes, a more appropriate criticism o f the rationale i n question would sensibly concentrate on trying to target the viability o f the just illustrated notion o f the argument from truth i n hate speech cases, rather than launching wide-ranging attacks against a scare-crow version o f the argument itself.  214  Another general criticism to free speech theory raised with a view to making, indirectly, a more specific argument against the freedom to disseminate hate regards the notion o f the so-called marketplace o f ideas: "[T]he free market analogy remains flawed because it assumes equal, unhindered access . . . ; modern methods o f mass media have altered drastically the concept o f equal communication. "  2 1 5  In what looks like an attempt to demonstrate the non-episodical inadequacy of the argument from truth, Mahoney refers to two other cases: pornography and criminal procedure. The Professor's discussion of the case of pornographic expression, however, suffers from several of the weaknesses typical of radical feminist treatments of the issue: pornography is reduced to a homogeneous body, this body is further found liable to a single univocal interpretation, alternative readings of the complexity of pornography's message are discounted, -or rather erased- and a linear, causal relationship is arbitrarily established between pornography and real life violence, which can be premised only in simplistic notions of the sameness of fantasy and action and on debatable notions of false consciousness ("the messages in pornography ... is [sic] replicated in real life statistics which also are increasing [sic] at a very rapid rate" (emphasis added): ibid.). All this for the sake of concluding, in terms that impress me as a whit too pessimistic, that "[t]he competing idea, that women as human beings are equal to men and children must be protected and treated with dignity and respect, is not emerging from the marketplace of ideas in any significant way" (emphasis added): ibid. The case of the criminal procedure rules that allow the exclusion of "speech that is inflammatory or highly emotive" is presented as another piece of evidence that shows how in "areas of social life where the primary objective is the pursuit of truth, the marketplace of ideas is not the model used" because free "speech can undermine the truth:" ibid. Leaving aside other considerations, the point is unconvincing in that the criminal procedure rules referred to seem very akin to the clear and present danger test, which no advocate of the 'free market of ideas' dreams of dispensing with. Highly emotive and inflammatory statements will, if likely to affect the views of the adjudicator, by definition translate into violent action: for being forcibly deprived of one's liberty or one's money is an act of force and is the inevitable consequence of a guilty verdict, and that verdict (or an enhanced penalty) can easily be delivered as a consequence of the adjudicator's being unfairly influenced by inflammatory and highly emotive speech. Ibid, at 800-1. 2 1 4  2 , 5  116  Although general considerations about the problem o f access to the free market o f ideas seem to me ingenious where they are meant to highlight the necessity to maximise the opportunities o f subjugated voices to be heard, and where they advocate measures against concentration o f media corporate power, also i n this case the strategy o f relying on general critiques o f free speech theory to support hate speech regulation seem to yield little persuasive success. Fortunately, comparatively few opportunities seem to be open in mass media such as television and cinema for hate-mongers to wilfully promote hate. This is not to say that sexism, racism, and heterosexism do not subtly pervade movies and T V programs. B u t such expressions o f bigotry as those that can be proscribed under hate speech laws would seem to have little airing in these media anyway. O n the contrary, it has been documented that the formidable communicative opportunities provided by the Internet, substantially  allow  that  the employment o f new effective, inexpensive, far-reaching  communication techniques by individuals and groups with lesser access to traditional media, pose a threat precisely i n terms o f facilitating the dissemination o f hate.  216  The rather disconcerting conclusion is that unequal access to the (traditional) media seems to stand, i n a certain sense, i n hate propaganda's way, while the progressive result o f enhanced access to a new means o f communication (the Internet) seems to be i n its service. It could be argued that hate speech i n the media is not prevalent precisely because hate speech laws exist to prohibit its broadcasting. I believe, however, that the insignificant presence o f hate speech, as well as the diffusion o f more subtly biased speech, in the traditional media has a lot to do with the fact that such media tend to be the voice o f mainstream society- a voice that, albeit generally opposed to the dissemination o f hate, is still prejudiced i n a number o f less conspicuous ways. The Internet, instead, is an inexpensive means o f communication, and does not present problems i n terms o f so called 'scarcity' (viz. the limited number o f frequencies): as such, it can be used by virtually anybody who has access to a computer connected to it. In this sense the Internet  See e.g. C. Fogo-Schensul, "More than a River in Egypt: Holocaust Denial, the Internet and International Freedom of Expression Norms" (1997/1998) 33 Gonzaga Law Review 241. 216  117  appears a more democratic means o f communication, where unpopular views are more easily transmitted, accessed and, possibly, advertised. The fact that among these unpopular views there are also the horrific ones o f hatemongers poses peculiar and very complex problems regarding the regulation o f speech in the specific context o f the Internet (that cannot be explored in this work); on the other hand, it seems to suggest that while critiques about the role o f mass-media i n the marketplace  o f ideas  are valuable when speaking about the need to effectively  democratise such market i n principle, by themselves they do not provide simple answers to the problem o f how and why we can stop hate speech from poisoning our society. It seems that critiques to the notion o f the free market o f ideas can be appropriately invoked when, instead, they consider precisely how hate speech affects the functioning o f such market, as is the case with arguments about the silencing effect that hate speech has on its victims. Section III-WII o f this chapter, in elaborating on the notion o f the harmfulness o f hate speech, w i l l deal precisely with the way i n which hate speech can be said to subordinate, and with the extent to which this subordination translates specifically in an impaired exercise o f democratic rights on the part o f minorities- first o f all, that o f freedom o f expression.  The clear and present danger test, another typical element o f free speech theory where advocacy o f illegal action or o f the use o f violence is concerned, has also come under attack. The most consistently civil libertarian formulation o f the test is the one delivered in the United States by the Warren Court, in 1969: "[T]he constitutional guarantees o f free speech and free press do not permit a state to forbid or proscribe advocacy o f the use o f force or o f law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such a c t i o n . "  217  In the mind o f its critics, the idea seems to be that i f this test is discredited as inadequate or its use as inconsistent, then we might want to dispense with it altogether and therefore with its application in hate speech cases. For this purpose, a comparison is  118  drawn between such instances o f illegal conduct as, for example, the criminal offence o f threat on the one hand and the clear and present danger test on the other. The fact that legal provisions against the former are considered a legitimate form o f state regulation irrespective o f their inconsistency with the latter is then taken as evidence that the rationale underlying the clear and present danger test is arbitrary.  218  To perform this operation, however, the clear and present danger test has to be recast i n the new form o f (or misunderstood as) a requirement that words be never punished,  unless  consequence;  219  perhaps  when  action has actually followed  illegal  as their  furthermore, the differences between the act o f threatening and that o f  advocating must be erased (or overlooked);  220  lastly, a blind eye must be turned to (or blur  one's appreciation of) the kindred spirit o f the clear and present danger test and current notions o f threats consistent with freedom o f speech theory.  221  Once again, it seems that one's conviction that hate propaganda should be outlawed had better rest on grounds which are different from the supposedly flawed character o f freedom o f expression doctrine in general.  Similarly doomed appear some authors' attempts to legitimise hate speech regulation b y countering such free speech theory tenets as the one that freedom o f expression is an invaluable friend o f minorities. Such a strategy is self-defeating, to the extent that the arguments made to bring the desired result into effect, ironically, prove precisely what they are meant to deny:  217  Brandenburg v. Ohio, supra note 23 at 447.  See K. Mahoney, supra note 11 at 802. "In the hate propaganda context, ... [the clear and present danger test] assumes that words are only a prelude to action and cannot be prohibited because they are not "acts:"" ibid, at 801. 220 "j-'p-jhe joes not explain why other laws which limit speech, such as laws prohibiting bribery, treason, blackmail, conspiracy, forms of verbal harassment, threatening, and price-fixing, are not questioned:" ibid, at 801-2. A 'true' threat should be, the U.S. Court of Appeals for the Second Circuit affirmed in United States v. Kelner, 534 F.2d 1020, at 1027, "on its face and in the circumstances in which it is made ... so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution." It is hard work to speculate on how the concept of threat could be defined in terms which were more consistent with the rationale (and even the formulation) of the clear and present danger test. 2 1 8  2 1 9  t e s t  2 2 1  119  Martin Luther K i n g , Jr., and others did use speeches and other symbolic acts to kindle America's conscience. But as often as not, they found the First Amendment (as then understood) did not protect them from arrest and conviction. Their speech was seen as too forceful, too disruptive. T o be sure, their convictions would sometimes be reversed on appeal, many years later. But the First Amendment, as then understood, served more as an obstacle than a friend. W h y does this happen? ... When new stories deviate too drastically from those that form our current understanding, we denounce them as false and dangerous (emphasis added). 222  Seldom have I read more cogent reasons to support  current (as distinguished from  older) First Amendment doctrine: the principle that non content-neutral speech regulation needs to meet the strictest standard o f review; the rule that only when speech creates a clear and present danger (in the terms defined i n Brandenburg v. Ohio) o f violence can apprehension o f disruption interfere with freedom o f expression; the idea that any other standard is likely to be selectively applied by adjudicators; the view, finally, that  current  First Amendment theory is the progressive result o f a struggle fought over time, and that we should not be too hasty to dismiss its value for minorities.  Ill: Matsuda's Approach to Racist Hate Speech.  I have suggested before that there is another order o f arguments that can, i n m y view, be better invoked to rationalise one's sense that hate speech is not deserving o f the protection o f free speech guarantees. A s the. best example o f this level o f argumentation I w i l l take the perspective adopted by M a r i J. Matsuda i n her milestone article "Public Response to Racist Speech: Considering the V i c t i m ' s Story."  223  This position avoids discounting the value o f free speech theory: actually, it takes freedom o f expression principles very seriously, but then looks for reasons to exempt hate speech from the general operation o f those principles. Accordingly, the more contextual the approach o f such a position, the better arguments it w i l l be able to make for  R. Delgado & J. Stefancic, supra note 11 at 102. See supra note 11.  120  overcoming the scepticism o f a perspective biased towards freedom o f speech.  224  That is  probably w h y Matsuda concentrates her analysis on the problem o f racist speech rather than hate speech more generally. Adopting the victim's perspective, Matsuda highlights the peculiar pervasiveness o f racism, its  structural  presence as a  practice of subordination  effected through  the  implementation o f several techniques, one o f which is precisely racist speech. Racist speech,  put into a context of historical racial subordination,  negatively affects minority  members' ability to enjoy equality by undermining both their own sense, and dominant group members' perception, o f their equal worth.  225  Matsuda holds that it is the teachings o f our own  historical experience  that should  make us see the difference between hate speech promoting racial hatred as a means o f subordinating minorities, and other forms o f speech that are controversial (like M a r x i s m ) , or offensive and demeaning, but not connected to hierarchical conditions o f subordination (we could think, e.g., o f racist speech against dominant groups or blasphemous speech attacking Christianity). In Matsuda's words: What is argued here ... is that we accept certain principles as the shared historical legacy o f the world community. Racial supremacy is one o f the ideas we have collectively and internationally considered and rejected. A s  It should be noted that, besides those positions that seemingly heavily discount the value of free speech doctrine, and those that take it seriously, there are positions that seem to be in between. These positions, while holding that general free speech theory arguments do not work (or mean much) in the specific case of hate(/sex) speech, appear to have an ambivalent relationship with freedom of expression orthodoxy more in general: see e.g. R. Delgado & J. Stefancic, supra note 11. These authors, for example, may be deemed to hold views not altogether condemnatory of free speech principles: "First Amendment theory will need revision to deal with issues lying at its farthest reaches. ... Conventional First Amendment doctrine is most helpful in connection with small, clearly bounded disputes. ... Speech is less able, however, to deal with systemic social ills:" ibid, at 70-1. A qualified, rather than 'strong,' rejection of general free speech principles might possibly be reflected also in their proposal to remedy the harms brought about by hate speech by relying on principles of content- and viewpoint-neutrality, and which seek for the most to be couched in familiar terms that exploit (disputed and problematic, some of them doubtfully constitutional, but still traditional rather than new, breakthrough) American exceptions to freedom of expression (that is: intentional infliction of emotional distress, group libel, harassment and fighting words). On the other hand, at other junctures they affirm that freedom of expression legitimises the status quo -ibid at 43- and that "the history of the First Amendment, as well as the current landscape of judicial exceptions, shows that it is far more valuable to the majority than to the minority, more useful for confining change than propelling it:" ibid, at 103. This can be characterised as a strong (rather than qualified) claim against freedom of expression theory, and I have already dealt with it in the text. M.J. Matsuda, supra note 11 at 2326-41. 2 2 4  2 2 5  121  an idea connected to continuing racism and degradation o f minority groups, it causes real harms to its victims. 226  The particular relevance o f this position to the way in which I have chosen to deal with the problem o f hate speech in this chapter is that, it seems to me, its main focus is on the competing values o f freedom o f expression and equality. Let me explain in which sense I believe this is so. This approach takes, as we have just seen, freedom o f speech very seriously. This seems to entail a faith i n general utilitarian arguments about the desirability o f the adoption o f the free speech principle in a democratic society: argument from truth, individual self-realisation, and democracy. It seems to me that accepting the validity o f all these three arguments involves assuming a pragmatic stance that rejects the primacy o f what I see as a static view o f society and politics that places (the government above the citizens and) a privileged emphasis on social harmony/public order considerations. Discussions  about  hate speech  laws may revolve precisely about  this  sort  of  considerations. Free speech doctrine is not indifferent to these values; but it places them in perspective by accepting a dynamic view o f society negotiating its own self- definition. A commitment to the principles o f democratic self-government and the related one o f a polity's (and its members') self-definition through the construction o f truth constitutes not only the very basis o f the adoption o f the free expression principle, but also, necessarily, o f the definition o f a limited and clearly bounded scope for legitimate state enforcement o f order and social harmony. This is why free speech doctrine incorporates principles, such as the clear and present danger test, that are already meant to deal  (among  other  things)  with  the  issue  o f speech  related  with  inter-group  violent/unlawful action. In this perspective, the government intervenes to censor speech and ensure order only where the dynamics o f group interaction are likely to degenerate from the level o f (even heated, disrespectful) discussion to that o f force. To say, instead, in general terms, that the proper role o f government, when freedom o f expression is at issue, is "to maintain social harmony in the society" by  Ibid, at 2361.  122  "marking [in situations o f group conflict] where one set o f claims legitimately begins and the other fades away" the  political  227  debate,  seems to me a way o f legitimising government's pre-emption o f i n such  a way that  contradicts  the  principles  of  self-  go vernment/defmition: the state becomes entitled to decide not only what can or cannot be granted (i.e. what claim can be legitimately satisfied) but also what can or cannot be claimed at all (i.e. what claim can be legitimately made) because such a decision is thought to promote good relations among different groups (social harmony per se becomes, thus, the ultimate aim)!  228  Taking seriously the soundness o f a robust free speech principle -free expression commitments  being  seen  as  coextensive  with  a  democratic  system  of  self-  government/definition- seems to require, instead, that public order/social harmony concerns be resolved within a framework that allows freedom o f expression exigencies to prevail unless i n those situations where  serious disruption is directly at stake. Free speech  doctrine cannot, on the contrary, be compatible with stronger social harmony/order claims that are capable o f being used precisely i n such a way as to stop or seriously impair the ongoing process by which a society governs itself through negotiating its selfdefinition. M a k i n g an argument against hate speech at the same time as strongly professing one's commitment to freedom o f expression, therefore, seems to me to shift the emphasis away from ambiguous public order/social harmony (re-)considerations,  229  towards more  K. Mahoney, supra note 11 at 797. Notions of 'social harmony' seem to me also to connect a little too easily with ideas of suppression of merely offensive -as opposed to harmful- speech and conduct. 1 speak of re-considerations because, as illustrated in the text, I believe that a balance between freedom of expression and those limited notions of social harmony the consideration of which is compatible with and indeed integral part of- the principle of self-government/definition have already taken place, appropriately, under the clear and present danger test. I talk of these re-consideration as ambiguous because, when freedom of expression is concerned, limiting it for the sake of guaranteeing social harmony means, every time this is thought to be appropriately done by applying standards that fall short of the clear and present danger test, that we are actually empowering the government of the day with the highly delicate choice of deciding which categories of expression are inimical to social harmony by, among other ways, 'discovering' (with the aid of the human sciences, which more than other disciplines have been shown to produce their own power-laden truths: see e.g. H.L. Dreyfus and P. Rabinow, supra note 128 at 126-83) dubious causal connections between certain types of speech and (from non-ideal to) violent forms of social interaction. 227  2 2 8  2 2 9  123  desirable substantive equality concerns.  230  We have seen, in fact, that i n Prof. Matsuda's  perspective racist hate speech should be outlawed because it is a technique to maintain a state o f historical subordination. Surely, this does not mean that the problem o f violence is absent from Matsuda's analysis: "Racist speech is best treated as a  sui generis category, presenting an idea so  historically untenable, so dangerous, and so tied to perpetuation  o f violence and  degradation o f the very classes o f human beings who are least equipped to respond that it is properly treated as outside the realm o f protected discourse."  231  However, the above passage, once considered in correlation with Matsuda's exempting racial minorities' hate speech from regulation, seems to suggest that violence is not the centre o f her analysis. I am not suggesting that i f race-motivated violence had been  Matsuda's  substantial focus, she would have extended regulation o f hate speech also to minorities' racist utterances on the basis o f the reasoning that i f hate speech and violence are related, violence against dominant group members shows that minorities' hate speech is in need o f regulation, too. O n the contrary, I believe that in Matsuda's analysis violence o f subordinated groups against dominant ones is not related to the hate speech o f minorities in such a way as is arguably the case when at issue are dominant groups' violence and hate speech against minorities. This is precisely because both racist speech and racist violence against minorities are conceived by Matsuda as a technique o f subordination. Thus, my contention that Matsuda's choice to proscribe only dominant groups' hate speech shows that she is not concerned so much with violence per se as with the wider problem o f subordination stems from the observation that, even when connections between speech and violence become relevant in her analysis, that is always from the perspective o f both o f them ultimately being functional to subordination/inequality, that remains the centre o f her theory.  This way of proceeding, therefore, is also more consonant with the angle under which I have chosen to see the problem of hate speech, that I have introduced as posing a dilemma in terms of the values of freedom of expression and equality (rather than social harmony). M.J. Matsuda, supra note 11 at 2357.  2 3 0  231  124  The difference between this position and the 'social harmony' approach can be illustrated i n the following way. According to the former position, intergroup speech not creating a clear and present danger o f violent/illegal action could not be suppressed where the groups involved were both 'dominant;' while, i f one o f the groups were subordinated, the dominant group's speech could be suppressed even in the absence o f a clear and present danger o f unlawful action. According to the latter approach, instead, inter-group speech involving every type o f groups could be limited every time the speech -even in the absence o f a clear and present danger- could be thought, by the government o f the day, to be inimical to 'social harmony.' I would argue that Matsuda's substantive equality-centred approach -besides being preferable, as just seen, to the 'social harmony' one- is also more in accord with the choice o f taking seriously free speech doctrine than are hate speech provisions drafted in neutral terms (i.e. that do not differentiate between hate propaganda directed against historically oppressed groups and hate speech against dominant groups).  232  The choice to  proscribe all hate speech (as opposed to outlawing only its sub-category that targets minorities) is i n fact more suspect under the aspect o f the harm principle. Proscription o f hateful speech acts directed against dominant groups are meant to address either too remote a harm (i.e. inter-group violence, in the perspective o f public order/social harmony concerns, already appropriately considered under the clear and present danger test, see above) or no harm at all: feelings o f diminution experienced by members o f dominant groups may be deemed to be short lived and relatively easily reabsorbable with the aid o f the reassuring messages o f dominant discourses, so that dominant groups' equal ability to function in the process o f democratic self-government  Neutrality here could be intended as v/ewpo/n^-neutrality. It is worth emphasising, besides, that Matsuda's approach is, to start with, not content-neutral either. In fact, as already mentioned in the text, she singles out racist speech among other forms of hate speech and conceives it as a category unworthy of First Amendment protection, arguing that "[t]he alternative to recognizing racist speech as qualitatively different because of its content is to continue to stretch existing first amendment exceptions, such as the "fighting words" doctrine .... This stretching ultimately weakens the first amendment fabric, creating neutral holes that remove protection for many forms of speech. Setting aside the worst forms of racist speech for special treatment is a non-neutral, value laden approach that will better preserve free speech:" ibid at 2357. One can extend this reasoning also to Matsuda's choice of dispensing with viewpoint-neutrality as well (i.e. her choice not to proscribe all forms of racist speech, but only that directed against minorities). 2 3 2  125  and  self-definition is not compromised;  233  there not existing structural discrimination  against members o f dominant groups, it can even be argued that such feelings o f diminution could have no relevance at a l l , under the aspect o f contributing to discrimination.  234  A s suggested above, on the contrary, a perspective on hate speech that conceives it as a technique o f subordination/discrimination -i.e. that focuses on substantial equality concerns and (therefore) on speech targeting racial  minorities- appears, prima facie, more  compatible with otherwise strongly held civil libertarian views about freedom o f expression. This is because, from such a perspective, hate speech regulation attempts to avoid some kind o f harm that might be seen as consistent with free speech doctrine. I w i l l expand on this point, trying to explore the conditions under which hate speech can become harmful i n this very specific sense.  Having chosen as my point o f departure Matsuda's contextual approach, for the first part o f the following analysis I w i l l juxtapose a consideration o f racist hate speech to the treatment o f my specific case study-namely, homophobic hate speech. In particular, having taken the view that Matsuda's approach makes, to date, the most compelling case for hate speech regulation, I w i l l examine the extent to which homophobic hate speech might be characterised as producing a sort o f harm that justifies legal regulation. Although my analysis o f homophobic hate speech stems from a consideration o f  In other words, the silencing effect of hate speech does not seem to be an issue when hate speech is directed towards dominant groups. However, for a critique of 'silencing effect' arguments in general, (i.e. even in the context of hate speech targeting minorities) see T. Heinrichs, "Censorship as Free Speech! Free Expression values and the Logic of Silencing in R. v. Keegstra" (1998) 36 Alberta Law Review 835. In this perspective, the fact that countries endowed with hate speech laws tend, like Canada, Britain or Italy, to have neutrally drafted provisions might be deemed to point towards a somewhat debile commitment to free speech principles: a category of speech (i.e. all hateful speech no matter whether connected to discrimination or not) is denied protection, rather than because of its being actually harmful, owing to its offensiveness. As civil libertarians point out, neutrally drafted hate speech laws seem to lend themselves to be enforced in ways that can hardly be defined 'progressive,' to the point of stifling legitimate political protest: see e.g. N. Strossen, "Regulating Racist Speech on Campus" in H.L. Gates Jr. et al., supra note 15, 181 at 225-7. The enactment of non viewpoint-neutral hate speech provisions might be deemed to constitute an effective response to those objections to hate speech regulation that rest on the argument of public officials' arbitrary enforcement of hate propaganda laws (although an important problem arises in turn, which is that of deciding who is and who is not a dominant group). 233  234  126  Matsuda's arguments, I do not purport to, and w i l l not, make any recommendation with regard to racist hate speech. What I w i l l do is  elaborate  on Matsuda's contentions, having no pretence that she  should endorse mine.  I V : Hate Speech as IIlocution.  1. Locution, Illocution, Per locution.  To  say that speech causes harm is to say that speech has an ability to do  something.  This ability "to do things with words" can be investigated  framework  o f analysis  developed  i n speech  act  theory,  235  where  the  under  the  concept  of  performativity o f speech was developed, intended as the ability o f "a word not only to name, but also ... to perform what it names."  236  When a hate-monger issues a hateful speech act regarding a racial minority, or a racial minority member, it is not only the case that we understand meaning o f what he says. is  237  It is also the case that normally the  the locutionary  illocutionary "uptake"  238  secured, the 'force' o f the utterance being understood, and, by virtue o f being  See J.L. Austin, How to Do Things with Words (London: Oxford University Press, 1962). Judith P. Butler, in Excitable Speech, supra note 160, creatively applies, among other things, speech act theory notions to the case of hate speech; at page 18 she reads specifically Matsuda's work in the light of Austin's concepts. My analysis is largely independent of this book, as I had not read Excitable Speech before or while writing the main points I make in this chapter- although I had read in another book -namely, A. Parker and E. Kosofski Sedgwick, eds., Performativity and Performance (New York: Routledge, 1995)the essay taking up page 42-69 of Excitable Speech, i.e. "Burning Acts- Injurious Speech." J.P. Butler, "Burning Acts- Injurious Speech" in A. Parker and E. Kosofski Sedgwick, eds., supra note 235, 197 at 197. Understanding the locutionary meaning of a hate speech act means that, e.g., if a hate-monger says:'— (offensive expression for an identifiable racial group) are beasts,' we understand that by '—' he refers to that identifiable racial group, by 'beasts' he means brutes as opposed to human beings, and that the predicate 'are' is used to equate '—' with 'beasts.' As far as illocutionary results (see infra) are concerned, it is precisely -and obviously- what is said that allows (among other things) the result to take place: "An effect must be achieved on the audience if the illocutionary act is to be carried out. ... Generally the effect amounts to bringing about the understanding of the meaning and of the force of the locution:" J.L. Austin, supra note 235 at 115-6 See J.L. Austin, supra note 235 at 116. 2 3 5  2 3 6  2 3 7  238  127  understood, established, even i f the hearer does not think that what the speaker uttered about that racial group is true or right. The illocutionary force o f an utterance is such that it allows, i n Judith Butler's words, "the name [to] perform ...  itself, and i n the course o f that performing become ... a  thing done," as opposed to the perlocutionary way o f doing things with words, where words and things  (i.e. perlocutionary effects) remain distinct (see infra)?  39  Every speech act, besides being a 'locutionary act' (i.e. a doing i n the intuitive and obvious sense in which saying something is a specific type o f action just as, e.g., eating or sleeping are)  240  is also always an illocutionary act, because the illocutionary aspect o f a  speech act is, in a simple sense, the way in which that utterance is used;  241  however, we  can better understand the force o f the illocutionary component o f an utterance by making specific reference to a  performative speech act. This is because when the utterance is  performative or, i n Habermas's preferable terminology, "regulative," much as possible to the illocutionary force o f the utterance,"  243  "we attend as  or, i n Habermas's words,  "we thematize the relations into which speaker and hearer enter." Let us consider a passage from Austin's  242  244  How to do Things with Words, and the  example o f performative utterance contained therein:  LP. Butler, "Burning Acts- Injurious Speech" in A. Parker and E. Kosofski Sedgwick, eds., supra note 235, 197 at 197-8. 240 "[j-Jo say something is in the full and normal sense to do something- which includes the utterance of certain noises, the utterance of certain words in a certain construction, and the utterance of them ... with a certain sense and with a certain reference:" J.L. Austin, supra note 235 at 94. The illocutionary dimension of a locutionary act "determine[s] in what way we are using the locution. ... It makes a great difference whether we are advising, or merely suggesting, or actually ordering .... [T]he performance of an act in this new and second sense ... [is] the performance of an 'illocutionary' act, i.e. the performance of an act in saying something as opposed to performance of an act o/saying something:" J.L. Austin, supra note 235 at 98-9. 1 consider this terminology preferable because it makes clear that not only regulative but all types of speech acts have an illocutionary component, and as such a performative function, intended as the ability to do things with words precisely in the sense in which illocutionary acts can do that. J.L. Austin, supra note 235 at 145. See J. Habermas, Communication and the Evolution of Society (Boston: Beacon Press, 1979) at 53. Habermas's way to put it emphasises how defining the illocutionary aspect of an utterance (be it regulative or not) as the way in which the utterance is used (e.g. to state, advise, warn, confess) points precisely to the relationship that a given way of using the utterance establishes between speaker and hearer (see also J. Habermas ibid, at 40-4). 2 3 9  241  2 4 2  2 4 3  2 4 4  128  The illocutionary act 'takes effect' in certain ways, as distinguished from producing consequences in the sense o f bringing about state o f affairs in the 'normal' way, i.e. changes i n the natural course o f events. Thus 'I name this ship the Queen Elizabeth' has the effect o f naming or christening the ship; then certain subsequent acts such as referring to it as the Generalissimo Stalin w i l l be out o f order. 245  Provided certain conditions obtain, (so-called conditions for the happiness or felicity o f performatives: that there exist a procedure for the act, that the procedure be performed completely and correctly, etc.)  246  in uttering the formula that mentions the  name o f the ship, that name becomes the ship's name. It is important to distinguish illocutionary from perlocutionary results, i.e. "consequential effects upon the feelings, thoughts or actions o f the audience"  247  (in this  sense, that is in producing perlocutionary effects, a speech act becomes the performance of a deed i n a way that is easily understandable as 'productive'). If the conditions for the felicity o f the performative are met, the illocutionary result w i l l take place quite independently o f the perlocutionary effects that may or may  not follow from a speech act. In the example provided above, it does not really matter that all the hearers present at the ship's christening are,  despite the fact that they understood  the meaning and the force of the locution, * unpersuaded and w i l l refer to the ship in the 24  future as the  Generalissimo Stalin: the ship's name w i l l still be the Queen Elizabeth.  J.L. Austin, supra note 235 at 116. See ibid, at 12-52. Ibid, at 101. "Saying something will often, or even normally, produce certain consequential effects upon the feelings, thoughts or actions of the audience, or of the speaker, or of other persons: and it may be done with the design, intention or purpose of producing them; and we may then say, thinking of this, that the speaker has performed an act in the nomenclature of which reference is made either (C. a), only obliquely, or even (C. b), not at all, to the performance of the locutionary ... act. We shall call the performance of an act of this kind the performance of a perlocutionary act or perlocution. ... (E[xample] 1) Act (A) or Locution He said to me 'Shoot her!' meaning by 'shoot' shoot and referring by 'her' to her. ... Act (C. a) or Perlocution He persuaded me to shoot her. Act(C. b) He got me to (or made me, &c.) shoot her:" ibid. 2 4 5  2 4 6  247  2 4 8  See ibid, at 116.  129  2. Illocutionary Force (Institutionally Bound and Institutionally Unbound Speech Acts).  Habermas distinguishes between institutionally unbound and institutionally bound speech acts (such as the one in the example o f the ship, provided above), "where specific institutions are always involved."  249  The latter are said to "draw their power to coordinate  interactions", i.e. their illocutionary success, "directly from the social force .... o f norms,"  250  while the former acquire such an authority thanks to the implicit offer made by  the speaker to vindicate (or redeem, i.e. provide grounds for) the validity claims that are, again implicitly, raised at the moment when the speech is uttered. These validity claims are the claim to the truth o f the propositional content o f the speech act, the claim to the truthfulness (sincerity) o f what the speaker expresses with her speech act, and the claim to the rightfulness interpersonal  o f the norms that the speaker  relationship  established  between  illocutionary component o f the speech act.  251  implicitly invokes to justify the speaker  and hearer  through the  These three different validity claims are  implicitly raised, according to Habermas, i n  every speech act directed to reaching  understanding, but they are differently thematized depending on the nature o f the speech act at issue. When a regulative speech act is performed, in particular, the speaker emphasises, although implicitly, the claim to the rightfulness o f the norms underlying the speakerhearer relationship that she intends to bring about with the illocutionary component o f her utterance, i.e., for example, with using her words to warn rather than to confess or promise any thing. Regulative speech acts, indeed, are precisely those where the illocutionary component o f an utterance is highlighted.  252  Institutionally bound speech acts, e.g. naming a ship, are instances o f regulative utterances. This is arguably shown, among other things, by their deriving from norms the authority to bring about the result o f enacting what they name (for what are norms i f not  2 4 9  J. Habermas, Communication and the Evolution of Society, supra note 244 at 38.  2 5 0  J. Habermas, The Theory of Communicative Action, vol. 1 (Boston: Beacon Press, 1984) at 296. See supra note 244.  251  2 5 2  See J. Habermas, The Theory of Communicative Action, vol. J, supra note 250 at 295-309.  130  devices to justify given interpersonal relations?). W e might think that i n the case o f institutionally bound speech acts this (implicit or explicit) pointing to norms is sufficient to secure the illocutionary result (provided no infelicity makes the act unhappy): as long as the norm is not repealed or otherwise deprived o f its legitimate force it w i l l provide the authority for performing what the utterance names. Thus, in the utterance 'I proclaim the name o f this ship to be the Queen Elizabeth,' the norm that underlies the 'I proclaim' formula and that gives the speaker the authority to name the ship while subjecting the hearers to that authority does not need, in order to bring about the illocutionary result o f the ship's name being  Queen Elizabeth, o f nothing else besides the felicity o f the  performance (the first condition o f felicity is precisely that "[tjhere must exist an accepted conventional procedure having a certain conventional effect:"  253  which is the same as  saying that there must exist a norm authorizing, among other things, the speaker to perform the utterance and, in doing so, achieve the illocutionary result). Regulative speech acts that are institutionally unbound, on the contrary, point to interpersonal norms that do not have the force that the link with specific institutions would lend them. Therefore, for the illocutionary result to take place, the interpersonal relation described i n the illocutionary component o f a regulative speech act must be justified by norms (implicitly invoked)  whose rightfulness the speaker implicitly offers to  provide a ground for. The implicit validity claim thus raised allows institutionally unbound, regulative speech acts to perform their illocutionary result.  254  In both cases it is  the reference to norms that makes the illocutionary result take place in a conventional  (i. e.  normal, regulated, stylised) way at the same time as the locution is uttered.  J.L. Austin, supra note 235 at 14. This result can be described precisely as the enactment of that interpersonal relationship described in the illocutionary formula of the utterance; similarly, in the case of institutionally bound speech acts, the illocutionary result that a ship's name is Queen Elizabeth can also be described, emphasising the interpersonal relation between speaker and hearers, as the fact of hearers' being bound to calling the ship  2 5 3  2 5 4  Queen Elizabeth owing to their being subject to the legitimate authority of the speaker who christened the  ship.  131  2(a). The Illocutionary Force of Racist Hate Speech Acts.  The problem i n describing how racist hate speech acts can secure an illocutionary result, i.e. how they can enact what they name, is that they hardly fit into this framework. O n the one hand, they are not (at least recognisably and legitimately) bound to anything like an institution, and therefore cannot derive the authority to perform what they name by referring to norms whose force is guaranteed by their being tied to such an institution. O n the other hand, although a racial slur, for example, seems to often share the outward characteristics o f an institutionally unbounded, regulative speech act, it is hardly describable as an  utterance oriented to reaching understanding  2 5 5  (only for. which  Habermas developed his doctrine, exposed above, about the universal validity claims); much more so that the racist speaker, with any likelihood, w i l l subjectively desire the realisation o f given perlocutionary effects (e.g. changes in beliefs, thoughts, feelings o f the audience), and any perlocutionary aim, in Habermas's view, makes the utterance an act o f "linguistically mediated strategic action," reaching understanding.  256  as opposed to an act oriented towards  257  It is possible, however, to further complicate the composite account I have just given o f speech act theory by incorporating in it some poststructuralist insight. Even i f they are not bound to any specific institution, it is arguable that racist (and other) speech acts can, like institutionally bound speech acts, draw the authority to secure illocutionary results -i.e. to enact what they name- from the social force o f norms and conventions. In other words, there is no need for the speaker to implicitly offer grounds to  A regulative speech act oriented to reaching understanding is an utterance acceptable on the basis of a rationally testable validity claim, raised implicitly by the speaker, about the rightfulness of the norms implicitly invoked to justify the enactment of the interpersonal relationship that is the illocutionary aim of the utterance. J. Habermas, The Theory of Communicative Action, vol. I, supra note 250 at 295. Those racist speech acts that might be possibly considered immune from perlocutionary aims (in which, in other words, a serious offer to vindicate the validity claims raised in the utterance is recognisable) would not be criminalised by Matsuda. I agree that "[fjhe case of the dead wrong social scientist," as she appropriately calls it, (see M.J. Matsuda, supra note 11 at 2364-5) might be thought to reasonably escape regulation: in fact, when the speech act is directed to reaching understanding, it is possible to make the validity claims raised with the utterance become the object of serious theoretical argumentation -see J. Habermas, Communication and the Evolution of Society, supra note 244 at 63-4. 2 5 5  2 5 6  257  132  redeem the validity claim which only a speech act o f hers directed to reaching understanding would thematize. In fact,  couldn't it be possible to dislodge the  dichotomy institutionally  bound/institutionally unbound speech acts by referring to the Foucauldian notion o f power/knowledge regimes? Suggesting, as Foucault does, power not being only (and, according to him, not even mainly) juridical allows one to bear in mind a more fluid notion o f power. Severing power from its juridical dimension can be seen as loosening up its ties with juridical and quasi juridical norms, i.e. norms connected to some sort o f official institution. It is the peculiar character o f these (institutionally bound) norms, as we have seen, that they have a force which does not depend on the fact that person who invokes them make implicitly an offer to redeem their rightfulness. But i f the dimensions o f power are not exhausted i n the juridical one, i f power is relational and not concentrated in (or possessed by) any particular institution,  258  couldn't we think o f norms that have a de facto  force (i.e. a force that need not rely on the implicit offer to redeem their rightfulness) even i f they are not bound to any juridical or quasi-juridical institution, and, indeed, to any institution at all? Considering that power, i n a poststructuralist perspective, can be seen as 'acting' through discourse, and that through discourse truth effects are installed, isn't it the case, since the truths thus produced are power-laden, that these 'truths' can be considered 'normative', rather than objective? A n d isn't it the case, furthermore, that normative truths have the status o f 'true' norms, that is, o f norms that, to be binding, do not need the speaker who is implicitly invoking them to make an implicit offer to vindicate the rightfulness o f these norms? If this is so, the following question is: do appropriate 'true' norms, i.e. norms with a special social force, exist that secure the illocutionary result o f enacting what racist hate speech acts (institutionally unbound utterances not directed to reaching understanding) name?  See e.g. M. Foucault, "The Subject and Power" in H.L. Dreyfus and P. Rabinow, supra note 128 at 208226 (see especially p. 219-226).  2 5 8  133  'True' norms, as we have just suggested, are produced -in the form ,of normative (authoritative, rather than objective) truths- by discourse, as discourse is coextensive with power.  Does  a recognisable,  conspicuous  discourse  about  Blackness,  Indianness,  Asianness, etc. exist? The answer seems to be affirmative,  259  and it is a discourse not localised in any  particular institution, but that crosses transversally a number o f sites, disciplines and institutions.  260  The structural presence o f racism, i n this sense, can be intended as the  discursively produced normative truths about minorities. The double structure o f these nonnative truths, or true norms, allows them to be invoked to ensure the illocutionary success o f a racist hate speech act both when this assumes the character o f a regulative utterance and when it appears as a  constative speech  act.  The following passage from Habermas's essay "What is Universal Pragmatics" clarifies the distinction between constative and regulative speech acts:  See e.g. R. Delgado & J. Stefancic, supra note 11 at 72-82. See e.g. M.J. Matsuda, supra note 11 at 2331-5. The fact that this discourse will be found in connection with certain institutions does not mean that the speech acts pointing to the 'true' norms produced by such a discourse become institutionally bound: for the 'true' norms towards which hateful speech acts point and that give these acts their illocutionary force will nowadays not themselves be, generally, the correct outcome of the regulated process through which a legitimate institution produces its official norms (although historically they have often been- see e.g. LB. McKenna, "Canada's Hate Propaganda Laws- A Critique" (1994) 26 Ottawa Law Review 159, especially at 163-7; for a present exception think, e.g., of the constitutional provision about Canadian bilingualism, s. 16 of the Charter, that indirectly but officially devalues Aboriginal People's languages). For example, if we consider a judicial body, the discourse about Blackness that will be found in connection with this institution will often not tally with legal norms and judge made law, but will be found in obiter dicta, cursory remarks, specific use of language, and at most find an inexplicit, ambiguous expression in the official (as opposed to the discursive, 'true') norms produced by the judicial institution (for an analysis of how the decision in R.A. V. v City of St. Paul adds in this way to the discourse about American Blackness, see J.P. Butler, "Burning Acts- Injurious Speech" in A. Parker and E. Kosofski Sedgwick, eds., supra note 235, 197 at 212-14; for the way in which Indiannes is discursively constructed by judicial institutions see M. Kline, "The Colour of Law: Ideological Representations of First Nations in Legal Discourse" (1994) 3 Social and Legal Studies 451). Of course this does not mean that the 'true' norms produced by the discourse about Blackness issued by a judicial body will not take on an aura of 'legitimacy,' i.e. acquire their special force, precisely through exploiting the power of judicial institutions to disqualify non-legal knowledges. It is debatable whether hateful speech acts themselves add to the discourse about racial minorities that in turn produces the 'true' norms indirectly referred to by the racist hateful utterances to secure their illocutionary result. Apart from the logical problems of circularity that an affirmative answer would yield, I am inclined to believe that the power that hate-mongers succeed in exercising is relatively inconspicuous, so that their speech acts do not have the authority of being self-referential and precisely for that reason need rely on norms produced by a superior order of discourse. 2 5 9  2 6 0  134  In the cognitive use o f language, with the help o f constative speech acts, we thematize the propositional content o f an utterance; i n the interactive use o f language, with the help o f regulative speech acts, we thematize the kind o f interpersonal relation established. The difference i n thematization results from stressing one o f the validity claims universally inhabiting speech, [i.e., as we have already seen, the claim to the truth o f what is said, the claim to the truthfulness o f what the speaker expresses with the speech act, and the claim to the rightfulness o f the norms implicitly invoked with the illocutionary component o f the utterance] that is, from the fact that in the cognitive use o f language we raise truth claims for propositions and in the interactive use o f language we claim ... the validity o f a normative context for interpersonal relations [the ones established, in particular, with the way in which we use our utterance, i.e. to warn, to promise, to bet, to proclaim, etc.)] . 261  This distinction is drawn by Habermas i n the context o f speech acts directed to reaching understanding. W e have already seen that hateful utterances are scarcely amenable to be defined as speech acts oriented to reaching understanding, and therefore their illocutionary success to bring about what they name must rest on something else than the implicit offer to provide grounds for the validity claims invoked at the same time as the utterance is issued. W e have also seen that in the case o f institutionally bound (regulative) speech acts their illocutionary force is secured by pointing to norms whose force is, so to speak, de facto (i.e. whose rightfulness the speaker does not have to implicitly offer to vindicate, the link with the institution being enough to make the norm binding). I have further suggested that there are other norms that have a similar de facto force, which they do not derive from the juridical (or gwosj'-juridicai) power o f institutions, but rather from the power o f social discourses. I have argued that such a powerful and 'normo-genic' discourse exists precisely about racial minorities. I have concluded that it is precisely by referring to such  norms that regulative racist hate speech acts (which are institutionally  unbounded) can secure illocutionary success. I now contend that  constative racist hate speech acts (that, to the extent that they  are racist and hateful, are not oriented to reaching understanding, and thus cannot be  J. Habermas, Communication and the Evolution of Society, supra note 244 at 55.  135  illocutionarily effective by implicitly offering to provide rational grounds for the validity claim to truth they raise) can likewise draw their illocutionary force by pointing to truths whose authority is (not rationally based but) de facto. These truths are the same norms that regulative speech acts rely on to ensure illocutionary effectiveness. I have i n fact above referred to the effects o f the productivity o f (power through) discourse as to truths that, being power-laden, become normative (rather than objective) truths; and that, by virtue o f their being normative truths, are, at the same time, 'true' norms. In their capacity as (true) norms, such discursive effects are implicitly invoked by  regulative racist hate speech acts; under their aspect o f (normative) truths, they are implicitly called for in order to authorise constative racist hate speech acts.  2(a)(1). Racist Hate Speech Acts Addressing Victimised Hearers.  When a racial slur is uttered, it can assume the form o f a regulative speech act. Made fully explicit, such a speech utterance would have the meaning o f  'I name you a — (racial slur),' or, even more clearly,  'I hereby proclaim that you are a — (racial slur).' This use o f language thematizes the relationship (here one o f subordination) between speaker and hearer. The illocutionary effect i n this case is precisely the enactment o f such a relationship. The speaker's aim to bring about such a relationship o f subordination is made clear i n the formula 'I hereby proclaim,' (i.e. the illocutionary component o f the utterance, although the aim would be perfectly clear even i n the absence o f an explicit performative verb) that emphasises the position o f authority that the speaker assumes. This authority o f the speaker to degrade the addressee derives from the de facto, common sense, irrational force o f those (implicitly invoked) norms produced by discourses about racial minorities  136  that codify the appropriateness o f hierarchical relationships between races considered o f different worth.  262  Besides constituting the propositional content o f a regulative speech act, the same racial slur could be used in a constative speech act, which, in its fully explicit form, would look like:  'Istate that you are a — (racial slur).' The propositional (rather than the illocutionary) component o f the utterance is here brought to the fore, so that the focus is on the truth o f what is stated (rather than on the relationship between interlocutors). The illocutionary force o f the utterance (the ability o f the speech act to perform what it names) does not result here from the fact that the propositional content o f the statement (another person's inferior worth because o f her racial group membership) contains, as happens with utterances oriented to reaching understanding, an implicit offer undertaken by the speaker to provide grounds for the truth claim raised in it. Rather such a force is secured by the fact that the truth o f the message o f inferiority conveyed is derived from its consonance with the 'truths' produced by discourses about racial minorities, that construct a social subject o f inferior worth on the basis o f its group membership. In practice, a racial slur is likely to have at the same time a regulative as well as a constative dimension. It follows that the final illocutionary result w i l l be both the establishment (or rather re-installation) o f a relationship o f subordination in which the speaker has the authority to degrade the addressee (: illocutionary success o f the regulative dimension o f the utterance), and the enactment o f the propositional content o f the utterance, i.e. the addressee being tied to a social identity o f inferior worth (: illocutionary success o f the constative dimension o f the utterance). That is why a racial slur pronounced by a member of the same minority group would never have the same illocutionary effect as one in which the speaker and the addressee met the normative requirement of belonging, respectively, to a dominant and a subordinated group (in Austin's terms this intra-group utterance of a racial epithet would not allow the illocutionary result of subordination to take place because a 'misapplication,' i.e. a particular type of infelicity, would have occurred: see J.L. Austin, supra note 235 at 14-8. "[T]he particular persons ... must be appropriate for the invocation of the particular procedure invoked:" ibid, at 15). In this sense it is possible to argue that racial epithets used in an intra-group context have the potential, rather, for troubling the norm of inter-group hierarchies. 2 6 2  137  The latter result, i n particular, w i l l ensue even i f that social identity is not a 'valid' one for the addressee or in the estimation o f a non-racist spectator, so that the speaker's perlocutionary aim o f convincing the addressee and the spectator o f the addressee's inferior worth is not achieved. But how could the victim o f the speech act, i f the hearers reject the speaker's message, be said to be tied to a social identity o f inferior worth? Familiarity o f both the addressee and the spectator with the 'truths' produced by discourses about racial minority groups would, in such a case, work like the hearers' knowledge o f the existence o f the rules allowing the officer to name the ship the  'Queen  Elizabeth' i n our previous example. The hearers might decide, for political reasons, that those rules are not legitimate (i.e. that they are not valid) because, for example, they are the expression o f western w i l l to power. They might, therefore, subsequently refer to the ship as the be the  Generalissimo Stalin. The ship's name however, in a certain sense, would still  Queen Elizabeth, precisely because those norms that the officer followed in  christening the ship  do exist and have a certain force, o f which the hearers, furthermore,  are aware.  2(a)(2). Racist Hate Speech Acts Addressing non-Victimised Hearers.  It should be underlined that the illocutionary success w i l l generally be secured also when the hearers o f the speech act are dominant group members, i.e., not, at the same time, also the victims o f the racist utterance. A couple o f examples w i l l be helpful to illustrate this. Let us take the case o f a hate speech act in the form o f a  warn (regulative  utterance) against the dangers supposedly created by a racial minority group. A n audience of white people would obviously understand the meaning o f the words employed by the speaker (locutionary aspect o f the utterance). The utterance, however, would take effect also at the illocutionary level: even i f the whites listening to the warn made their mind to reject it as unfounded, even i f they were not alerted by the warn, i.e. even i f the perlocutionary aim o f the speaker failed, the audience would still have no problems in understanding the speech act as a warn. The 'force' o f the locution, the way in which it  138  was meant to be used, would still not be incommensurable with the  discourses  constituting the subjects in the audience. The (illocutionary) force o f the locution could not possibly be lost, or misunderstood, because the regulative utterance, (in the form o f a warn) and, therefore, the (this time, arguably, not hierarchical) interpersonal relationship established through it between speaker and hearer (in which the former appears to have a 'right' to warn the audience) would implicitly point to, and find justification in, those norms o f intra-group solidarity that are, when a dominant group o f whites is the addressee, the other side o f those same norms o f inter-group hostility and subordination produced by discourses about the racialised other. Likewise, hateful  statements (i.e. constative speech acts) blaming on a minority  group, say, certain historical plights would, even i f an audience were unpersuaded by the arguments made, (i.e. even i f the perlocutionary aim o f the speaker went amiss) still be illocutionarily successful (provided the conditions o f felicity were met, o f course). That is, the audience would find a way to relate to the statement in a way that  goes beyond a  simple understanding of the locutionary meaning of the propositional content of the utterance. For example, a statement such as 'Jews love flowers' could secure an illocutionary uptake because, as an act directed to reaching understanding, it implicitly contains the speaker's offer to vindicate the claim to truth made with delivering the constative speech act. O n the contrary, despite its clear locutionary meaning, a statement affirming 'Jewish people have orange wings' would not secure any illocutionary uptake i n the hearer because its force would not be understood: there not being any recognisable implicit offer to provide grounds for the truth claim raised in the speech act, the hearers would fail to perceive the statement as such and would rather think o f it as something like raving. This recognisable implicit offer to redeem the truth claim made with the statement would arguably be lacking also i n a hateful utterance to the effect that an international Jewish conspiracy is responsible for global economic difficulties. Such an utterance, however, would 'click,' as a  statement, (irrespective o f the fact that the speaker does not  achieve its perlocutionary aim of convincing the audience) for the simple reason that the  139  audience is already conversant with the subtext o f discursively produced, normative racist 'truths' regarding the supposed relation o f Jews with money. Even here, it might be noted, the performativity o f the utterance at the illocutionary level is independent o f the realisation o f the perlocutionary aim o f the speaker: even i f the speaker fails to convince the audience, at the same time as the latter rejects the  validity o f the implicitly invoked norm (truth), its existence ends up being  acknowledged (and maybe indirectly affirmed). In this way a social identity o f inferior worth is attached to Jews even i f the audience rightly disallows its validity.  2(b). The Illocutionary Force of Homophobic Hate Speech.  In the article cited above Matsuda chose not to extend her analysis to "anti-gay and anti-lesbian hate speech ... because of... the different way in which sex operates as a locus o f oppression."  263  In the framework for analysis adopted here, there are indeed differences between the way i n which racist hate speech and hateful speech directed against gay men and lesbians operates. In particular, I would suggest that the illocutionary force o f hate speech acts directed against lesbians and gay men is only partly derived, as i n the case o f racist hate speech acts, from the true norms/normative truths that are discursively produced about sexuality, homosexuality, compulsory heterosexuality, and the continuity among sex, gender and desire. M u c h o f this force, on the contrary, comes from the L a w itself, as  an institutionally bound discourse. O n the one hand the L a w produces normative truths/true norms, for example through the elaborations effected by judicial discourse on homosexuality, as happens when the L a w extends equality rights to lesbians and gay men on the basis. o f the minority paradigm analysed i n the previous chapter. In these cases, the naturalness o f heterosexuality is discursively produced both as a (true) norm and as a (normative) truth by the L a w (alone and i n combination with a range o f other social discourses). These truths/norms, i n turn, sustain the illocutionary force o f homophobic speech acts, both  263  M.J. Matsuda, supra note 11 at 2320.  140  regulative and constative, both addressed to victimised and non-victimised hearers, i n much the same way as described above with reference to racist utterances. Just apply, for instance, what argued i n subsection 2(a)(1) and 2(a)(2) respectively to a homophobic insult and to a hateful warn/statement associating gay men with A I D S and disease. O n the other hand, unlike hateful utterances directed at racial minorities, homophobic hate speech acts are, in a certain sense, institutionally bound speech acts. This, possibly, makes homophobic hate speech acts even more successful at the illocutionary level. The L a w , i n its institutional dimension, produces legal norms (statutory and case law). These norms need not be produced as normative truths, as it is generally recognised that they should be valid i n their capacity as norms (provided, among other things, that their production follows formations).  a certain procedure  and emanates from  certain  social  264  Distinctions here are subtle, but can be retained at least in so far as they can be taken as an explanatory device to justify the claim that the L a w generally, that is not only when it is acting as institution (i.e.enacting legal norms) but also when it is operating 'only' as social discourse (i.e. producing normative truths/'true' norms), has, as it were, a privileged potential for disqualifying other knowledges. In this sense, I would suggest that normative truths produced by the L a w as a social discourse benefit from their contiguity with legal rules enacted by the L a w as an institution (or an institutionally bound discourse), and it is precisely this that allows the L a w to be peculiarly powerful among other social discourses. A t any rate, i n our societies legal rules, whether expressly or not, exclude lesbians and gay men from the enjoyment o f equal rights i n a range o f situations i n social l i f e .  265  Homophobic hateful utterances thus can derive their illocutionary force, and as such, their power to subordinate (both by attaching to their victims social identities o f inferior worth and by enacting asymmetrical interlocutory/interpersonal relationships), not only by The condition put in bracket seems to suggest that ultimately the force of legal norms depends less on institutions than on discourse: in democracies, legal norms do not borrow their force from a democratic institution, it is rather the democratic institution, as a discursive construct, that borrows force from discourse (about democracy, social contract theories, etc.) and lends it to legal rules.  2 6 4  141  seeking justification in true norms/normative truths that are produced by social discourses about homosexuality (of which the L a w , when not operating strictly as an institution, is one), but also by pointing to official,  institutional, legal norms that discriminate against  lesbians and gay men. Granted, legal norms tend not to invest expressly and formally specific citizens with the power to speak homophobic hate. They do this, however, by indirection, to the extent that in many countries the subject o f equal rights is heterosexual (although this is not true in the same degree everywhere: as regards North-America, for example, the role o f the L a w in thus contributing to the subordination o f lesbians and gay men can be thought to be, generally, much more marked in the United States than in Canada, whose laws provide considerable protection to gay men and lesbians). Thus, for instance, legal norms preventing lesbians and gay men from adopting provide the normative background against which the illocutionary success o f hate speech acts identifying homosexuals with child abusers can be secured.  V : Subordination as Harm.  I have above identified subordination/discrimination/inequality as the hate speechrelated harm concern for which may justify free speech restrictions. I have as well explained i n what way a special kind o f subordination is effected through hate speech acts (at the illocutionary level). The question is, is this kind o f subordination a type o f harm that may be taken to justify hate speech restrictions? Robert C . Post characterises the harm identified by Prof. Matsuda as a "harm to identifiable groups" that "locks i n the oppression o f already marginalized [minorities,]" rather than "harm to individuals" or "harm to the marketplace o f ideas."  266  This might  suggest that it is precisely the sort o f subordination effected by hateful utterances at the illocutionary level that is, in Matsuda's analysis, harmful to the extent o f justifying hate speech regulation.  See supra note 135. R.C. Post "Racist Speech, Democracy and the First Amendment" in H.L. Gates Jr. et al., supra note 15, 115 at 119.  2 6 5  266  142  Similarly, Judith Butler observes that [i]n M a r i Matsuda's formulation ... speech does not merely reflect a relation o f social domination; speech enacts domination, becoming the vehicle through which that social structure is reinstated. According to this illocutionary model, hate speech constitutes its addressee at the moment o f its utterance; it doesn't describe an injury or produce one as a consequence; it is, in the very speaking o f such speech, the performance o f the injury itself, where the injury is understood as social subordination. 267  It has to be admitted, however, that the kind o f subordination performed by homophobic (and racist) hate speech acts at the illocutionary level, as I have described it above, would be a somewhat tenuous basis on which to ground an exception to the principle o f freedom o f expression. If, according to Matsuda's illocutionary model, hate speech, as Butler puts it, constitutes the subject who is the target o f hate, it is also true that, as far as the construction o f the subject is concerned, that is not the end o f the matter. Powerful counter-discourses exist in society that can, in some way, undo what hate speech does: the constitution o f the (homosexual, gay, lesbian, queer) subject is never  completed  resignification.  268  at  a certain stage, as the  subject  is the  very possibility o f  A n y illocutionary effect secured by a hateful speech utterance should  not be seen, in this sense, as being permanent, inescapable, and un-problematically established. A l s o , it should be noted that the illocutionary way o f creating subordination as I have described it above is distinguished from a way o f producing subordination at the unconscious (as opposed to the rational) level.  Convincing an audience o f something,  either by way o f rational persuasion or unconscious influence, seems to be a consequence that rather falls within the category o f perlocutionary effects, introduced in section I V (1) o f this chapter. The illocutionary way o f subordinating is not an unconscious as opposed to rational manner o f convincing an audience, it is rather a mechanism according to which, when a hateful speech act is uttered, certain subjects (first o f all the interlocutors) end up inhabiting certain (hierarchical) social positions and/or recognising the existence o f certain social norms/'truths' because, and at the same time as, the speech act is 267  See J.P. Butler, Excitable Speech, supra note 160 at 18 (see the observation made in note 235).  143  understood as being used in the way in which it is used and as endowed with the meaning that is attached to it by the speaker. In other words, acknowledging that hateful speech acts ordinarily produce an illocutionary result is not the same as saying that they ordinarily operate so as to bring about subordination at an unconscious level. It follows that the argument that wants to exclude hate speech from the realm o f protected expression on the basis o f its operating at the level o f emotions/unconscious convictions and its failing to contribute to rational democratic discourse would not seem to be relevant here. Remember also that I have above explained that hateful speech acts are not acts directed to reaching rational understanding; that I have condemned both the meaning and disavowed any inherent merit o f such acts; and that I have already regarded as settled that the value o f hate speech is merely indirect in terms o f its contribution to rational democratic discourse. However, because o f the value attached to a robust principle o f freedom o f expression that tolerates the fewest possible exceptions, none o f these features o f hate speech have led me to argue that they are a sufficient reason to exclude i n principle such speech from the realm o f protected expression- although I accept that, should hate speech be considered worth o f restriction on some other basis (e.g. when it takes place in specific contexts) these features could be legitimately invoked to make the argument for regulation stronger. I have in this section suggested that the kind o f subordination produced by homophobic hate speech at the illocutionary level does not seem to justify, per se, regulation. O n the other hand, Matsuda does not stop her analysis at the stage o f the illocutionary model. In fact, she describes specific effects o f hate speech  269  that cannot be  understood by resorting to the illocutionary way o f enacting subordination. This requires an analysis that considers the relationships among the three hate speech-related harms mentioned above, namely: 1) the group-based harm of (illocutionary) subordination; 2) the harm to individuals (which, as we w i l l see, has a perlocutionary dimension); and 3) the harm to the marketplace o f ideas, that can be expanded to include, besides the silencing effect o f hate speech that impairs minorities' participation in the process o f self-  268  269  See supra note 108.  See also J.P. Butler, Excitable Speech, supra note 160 at 75. 144  govemment/defmition, established)  (to serve which the notion o f the marketplace  minorities' generally impaired enjoyment  o f ideas is  o f the equal privileges o f  democratic citizenship.  VI: Hate Speech as Perlocution.  Matsuda herself gives an account o f how the individual victims o f racist speech experience emotional distress, while even well-meaning dominant groups members end up, to some extent, internalising racist beliefs.  270  In the framework for analysis developed  by speech act theory, the effects, as described by Matsuda, produced by racist utterances  at the individual level, i n both the victims and other listeners o f such utterances, can be regarded as falling into the category o f so-called perlocutionary effects.  271  Change i n feelings, beliefs, thoughts, attitudes etc. are a normal consequence o f any speech act. The fact that perlocutionary effects o f some sort w i l l normally follow a speech act does not mean, however, that given perlocutionary consequences  will,  normally, predictably ensue pursuant to a given type o f locution (such as a sexual preference-based hateful utterance): "Into the description o f perlocutions ... there enter results that go beyond the meaning o f what is said and thus beyond what an addressee could directly understand." O f course  272  what is said w i l l generally be relevant to identify the specific  perlocutionary effects that ensue i n any given speech situation: but this is no more true o f  what is said than o f any other contextual factor that characterises the speech situation. This means that perlocutionary (as opposed to other- namely, illocutionary) "effects are not connected with speech acts only i n a conventional w a y . "  273  I have contended that the most convincing ground on which to proscribe hate speech is the harm done to the equality o f a class o f people. Hate speech, in this sense, becomes a legitimate target o f regulation to the extent that it appreciably contributes to 270  271  272  2 n  M.J. Matsuda, supra note 11 at 2335-41. ' See section IV (1) in this chapter. J. Habermas, The Theory of Communicative Action, vol. 1, supra note 250 at 290. Ibid, at 292.  145  group subordination, where subordination, however, must be something more than that effected at the illocutionary level, and specifically mean the impaired enjoyment o f minorities o f their rights o f democratic citizenship. It would appear that, since the decision at issue here is whether to proscribe an entire category o f speech merely on the basis o f what  is said, it should be established that  what is said produces subordination-related perlocutionary effects on a conventional (regular) basis. W e have just seen, however, that given the variability o f the contextual speech situation, the production o f specific perlocutionary effects (as opposed to the production o f perlocutionary effects o f some sort) is not a normal consequence o f a speech act. But isn't hate speech, in some way, 'peculiar'? Couldn't we say that when homophobic hate speech is at issue, the connection between the locutionary act  (i.e. what is said) and  the specific perlocutionary effects that allegedly make such utterances harmful is rendered i n some way almost 'conventional' (i.e. customary, stylised, so that i f those effects failed, in a particular case, to take place, such a case could be considered 'out o f order' ) by the pervasive context o f heterosexism within which the hateful speech act 274  takes place? I f structural homophobia and practices o f gender subordination are the most significant element that characterises the several possible settings where a heterosexist utterance can be performed when a heterosexist utterance is actually performed, (as Matsuda's account seems to suggest with regard to the case o f racism) plausible to speak o f homophobic hate speech as  275  then it might be  conventionally producing on its victims  some specific perlocutionary effects. In short, only i f the subtext o f discriminatory (hetero)sexist practices and discourses is considered to be, ordinarily, the most powerful contextual factor o f the speech situation, can a hateful homophobic utterance produce certain victim-specific perlocutionary effects in a quasi conventional way. The problem is that this way o f looking at homophobia as something which is almost  all-pervasive  and  endowed  with  a  seemingly  unrivalled  power  risks  1 borrow this expression from Austin (J.L. Austin, supra note 235 at 116) who uses it with reference to illocutionary effects, which, as we have seen, are indeed (as opposed to perlocutionary effects) always conventionally linked to what is said, provided the conditions for the felicity of the utterances are satisfied (see J. Habermas, The Theory of Communicative Action, vol. 1, supra note 250 at 291-2). 2 7 4  146  conceptualising it i n such a way as to make it look akin to, and therefore open to the criticism that can be levelled at, a radical feminist notion o f 'patriarchy' (meant as phenomenon! o f almost titanic dimensions and a-contextual, transversal validity). Still, what i f it were the very locutionary content  276  and the ordinarily occurring  illocutionary success o f a homophobic hate utterance that had the power to suddenly and graphically evoke, and highlight, (i.e. give special significance to) precisely that subtext of heterosexist discourses and practices that might, at other times, be only latently present in the site where the utterance i n question were issued? Once this subtext were thought to be 'activated' by the hateful speech act itself, (i.e. once the victim is reminded, through words that have a far too understandable  locutionary meaning and illocutionary force, that for more or less vast segments o f society her social identity is one o f inferior worth and how this translates i n a history o f inequality) it could be argued that this subtext o f heterosexism would, almost inevitably, bear on (i.e. become an important contextual element of) the speech situation, so as to ordinarily (i.e. quasi conventionally) produce on the victim some specific kind o f perlocutionary effects. In particular I would argue that hate speech, as a perlocution, may be thought to ordinarily bring about some degree  oi emotional distress in the victims.  But then this is probably well settled.  It is important to distinguish now between this perlocutionary effect produced on the  victim of the utterance and those that w i l l result on non-victimised hearers. O f course it would seem that discrimination is directly linked quite as much to  certain perlocutionary effects that hate speech has on those hearers that are at the same time the target o f its hideous attacks, as is to other perlocutionary effects that it may have on non-victimised hearers. But the way i n which also dominant group members, when they constitute the audience o f a hate speech act, perceive it as an act o f subordination, and the way i n which, therefore, the locutionary meaning and illocutionary success o f the  See M.J. Matsuda, supra note 11 at 2331-5. The locutionary content of a racist hate speech act will employ " language that is, and is intended as, persecutorial, hateful, and degrading" - ibid, at 2358- and will convey a message of racial inferiority directed against a historically oppressed group: see ibid, at 2356-9. 275  276  147  utterance throw, here as well, structural homophobia into the speech situation do not justify, i n this case, the conclusion that certain specific perlocutionary effects w i l l be produced quasi conventionally on the audience. It is obvious, in fact, that perceiving (at the illocutionary level) the speech act as an act o f subordination could precisely have the effect o f making a well-meaning audience feel indignant towards the hate-monger, and produce i n it feelings o f solidarity with the victims o f the speech.  277  When the audience o f a homophobic hate speech act is  not, at the same time, its victimised target, therefore, we cannot talk o f conventionality i n the production o f specific perlocutionary effects.  278  It follows that, to begin with,  arguments for the general, a-contextual proscription o f hate speech should not focus on the effects such speech has on non-victimised hearers. In fact, i f we cannot talk o f hate speech as ordinarily producing specific harmful (i.e. subordination-related) attitudinal changes i n non-victimised hearers, it would seem that there are no strong grounds to proscribe hate speech on the basis o f the possible production o f certain attitudinal changes on a subset o f non-victimised hearers, with the exception outlined below. It can be argued that, given that the harm to be avoided through the regulation o f speech is here the subordination o f a class o f people, the production o f perlocutionary effects on non-victimised hearers should take place, i n order for it to be  Matsuda affirms that however much we oppose the racist hate message, "the next time we sit next to one of "those people" the dirt message, the sex message, is triggered [because we have been presented with it over and over again]. We stifle it, reject it as wrong, but it is there, interfering with our perception and interaction with the person next to us:" ibid, at 2340. Accepting that also homophobic hate speech acts can conventionally influence non-victimised hearers at the perlocutionary level in this way (this is the only sort of perlocutionary effects that could be conventionally found both on bigoted and well-meaning dominant group members), it seems to me that this influence alone could not be said to ordinarily interfere (at least not significantly) with sexual minorities' enjoyment of their rights of equal citizenship. In a note relative to this passage, reporting one experience of hers Matsuda explains how, in a situation in which she was relating to a racial minority member, "[o]nly after setting aside the hate message could ... [she] move to ... [her] own thoughts:" ibid, at 2340. This, more optimistically, means that after setting aside the hate message she was able to move to her own thoughts, and suggests that perlocutionary effects can, in wellmeaning dominant group members, be undone at least to the extent of preventing these hearers of the hate message (whether racist or homophobic) to translate such effects into a practice of discrimination. Some legal consequences could immediately be drawn from this. For example, the appropriateness of a defence that allowed hate speech acts to escape criminalisation when they took place privately and the hearers were not, at the same time, the victimised targets of the hateful utterances. Section 319(2) of the Criminal Code of Canada (see supra note 7) provides for the punishment of "[e] very one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group" (emphasis added). 277  2 7 8  148  significantly related to group subordination, on something which is more than what could be deemed to be an episodical basis, and on a larger scale than one involving a numerically limited subset o f non-victimised hearers. Referring to the effects produced by hate speech on non-victimised hearers w i l l still make sense, however, in situations where, owing to the context i n which the speech act takes place, there is apprehension o f a clear and present danger that such hearers w i l l enact, as a consequence o f being the audience o f the speech act, that sort o f unlawful conduct that the law directly prohibits and that the speech act advocates. For our purposes, the unlawful conduct that would generally be relevant would be either violent or discriminatory. Every time the circumstances indicated, in a manner analogous to that outlined by the Warren Court in the aforementioned version o f the clear and present danger test, that certain speech acts would be related to violence and/or acts o f discrimination on the part o f a non-victimised audience o f the utterance, there would be no reason w h y such speech acts should escape proscription. While a clear and present danger o f violence w i l l perhaps be easier to establish when certain hateful words are uttered in certain circumstances to a certain audience, it cannot be excluded that on certain occasions certain hateful utterances w i l l produce a clear and present danger o f  discriminatory, as distinguished from violent, acts, and to this extent expression o f such utterances can be justifiably prohibited. What concluded in this section about hate speech and non-victimised hearers leaves the question o f the relation between subordination and the perlocutionary effects that can be deemed to be produced  ordinarily on the victims o f hate speech. I w i l l  concentrate on this question in section VIII.  VII: Intermediate Reflections: Pornography and Hate Speech.  The foregoing discussion highlights another difference between hate speech and pornography regulation: equality-oriented justifications for pornography regulation tend to focus precisely on the perlocutionary effects that this type o f expression has on the  149  non-victimised hearers o f the message,  (i.e. men, at one time the consumers o f  pornography and the perpetrators o f violence and discrimination against women). This argument, however, would not be decisive per se, in order to discredit equality-centred pornography regulation; i f anything, it would be an argument to support it. Arguably, the consumers o f pornography would not make use o f the material i f they thought it aversive: in other words, the audience o f pornographic messages can be distinguished from that o f hate speech acts because it ordinarily welcomes, and seeks what pornography has to tell. This suggests that, i f pornography could be equated to hate speech, its consumers would generally occupy the positions o f those non-victimised hearers o f the hate message on which specifically harmful perlocutionary effects are  ordinarily produced. This would mean, in turn, that the insight according to which arguments for hate speech regulation should, i f at all, focus on the harmful perlocutionary effects produced on the victims o f the speech rather than on the non-victimised hearers would have no bearing on pornography. Therefore it could be said that pornography regulation could be thought -contrary to hate speech- to appropriately focus on the harmful perlocutionary effects produced on non victimised-hearers, as i n the case o f pornography such effects could be believed to take place on a conventional basis. Another element, however, complicates the picture. What makes all the difference between pornography and hate speech is, as I already suggested, the uncertainty about what pornography has to say. I would argue that, as regards hate speech, it is relatively undisputed that the message that it conveys is one o f hatred. Surely this is not true i n absolute terms (it much depends on how widely hate speech is defined). It is true, however, i f we do not understand hate speech as coinciding with all prejudiced speech, but rather only with the most hideous bigoted expressions. This is precisely the approach I have taken where I chose to concentrate on Matsuda's model o f hate speech regulation that, taking freedom of expression seriously, aims at proscribing only the most serious expressions o f racial bigotry.  279  Admittedly, even i n Matsuda's approach (and similar ones, e.g. as regards the  realm o f homophobic hate speech) there w i l l still be hard cases, where it is not clear and  150  undisputed whether or not a certain speech act is hateful in the sense that justifies regulation. Even accepting this, however, it seems clear that there is, at the very least, a  greater degree o f controversy about whether the messages conveyed by pornography are actually about (hetero)sexist hate or not, and this is even truer when homosexual pornography is considered. This ambiguity and contradictoriness o f the pornographic message makes it a less suitable object for regulation, irrespective o f the surrounding context o f (hetero)sexism in which pornographic speech acts are spread. In fact, i f  conventional production o f arguably harmful perlocutionary effects is  (for the purposes o f analysing hate speech directed against subordinated groups) a function o f the illocutionary success o f an utterance, which is in turn a function o f the locution, it follows that, in order for it to be harmful like a subcategory o f hate speech, what pornography says should be unambiguously identifiable as conveying a univocally determinable meaning. A s we already know, that pornographic material is apt to convey one such meaning is precisely what radical feminists, consistently, argue; but it is also what a range o f other feminists strongly contest.  VII: The Harmfulness of Hate Speech. Remedies.  I w i l l now turn to the consideration o f what I indicated as the conventionally occurring perlocutionary consequence  o f hate speech,  i.e. the  experienced by the victimised hearers o f the utterance.  emotional  distress  Could we say that this  perlocutionary result, by itself, is harmful i n such a way as to justify speech regulation? Although undeniably injurious, emotional distress is not itself the harm that justifies  speech restriction. The harm that is capable o f doing so is rather the  compromised ability o f minorities to exercise their rights o f full democratic citizenship: in other words, the harm is subordination. This is what the perspective so far adopted entails: i f at issue were the protection o f hurt feelings and psychological/emotional 279  See supra note 276 and infra note 284. 151  distress per se, there would be no point i n limiting to minorities the protection from hateful utterances. A s Bakan underlines, "[t]he purpose o f these measures is not to protect groups from mere offence, and it is not limited to protecting individuals from being intentionally injured by speech. Rather, it includes the promotion o f values that lie at the core o f freedom o f expression itself."  280  L i k e violence, therefore, emotional distress becomes relevant as a reason to limit hate speech only to the extent that it is found to be linked with subordination. Intuitively it would seem that i f homophobic hate speech impacts on lesbians' and gay men's exercise o f their rights, it can do that precisely by passing through these perlocutionary effects (emotional distress) that take place at the individual level on a regular (quasi conventional) basis when the hearers o f the utterance are the victims o f homophobic speech. I f we accept this, the problem would be that o f conceptualising how such perlocutionary effects incapacitate generally speaking the members o f that group from being full citizens, and, i n particular, from exercising their free speech rights (socalled silencing effect o f hate speech). Alternatively, other perlocutionary effects that are directly harmful should be shown to take place on a quasi conventional basis on the victims o f the hateful utterance following a hate speech act: such effects would be precisely those attitudinal changes that induce gay men and lesbians not to exercise their rights as equals.  J. Bakan, supra note 52 at 74 (Bakan is making these comments with specific reference to university codes that are generally viewed as serving, in the context of campuses, a function analogous to the one that hate speech laws are understood as having in society at large; for the peculiar problem of bigoted speech on campus, see e.g. "Forum: Freedom of Speech in the University Context" (1995) 44 U.N.B.L.J. 47; for the even more peculiar problem of insensitive speech in the classroom, see P.J. Williams, The Alchemy of Race and Rights (Cambridge, Mass.: Harvard University Press, 1991) at 80-97). Taking the emotional injuries produced by hate speech alone as a sufficient reason for speech suppression is unacceptable because (of the still valid classic civil libertarian observation that) this would allow sweeping censorship measures to interfere with free expression every time anybody experienced offence as a consequence of being the hearer of a speech act. Contra, iX could be argued that only emotionally harmful speech directed against certain (namely, disadvantaged/subordinated) groups should be prohibited. But then, which reasons could be advanced, to defend such a position, that would not, at the same time, make the stance that takes subordination itself as the harm to avoid appear more consistent? Thinking of the harm produced by hate speech in the terms I have explained in the text is thus an attempt to justify hate speech regulation on the basis of an acceptable rationale- one compatible with taking free expression doctrine seriously. 2 8 0  152  However, thus establishing, in either o f these two ways, an unproblematic connection between homophobic speech that is specifically hateful and the impaired ability o f lesbians and gay men to exercise their rights as equal citizens is not simple. This is partly because the extent to which a collective gay and lesbian voice and political consciousness have been effectively 'silenced' is open to debate in the first place. In the marketplace o f ideas queer expression, surely, has been ostracised, marginalised, ghettoised and essentialised, but these and similar attempts have been definitely less than successful, at least in countries were lesbians and gay men, although not endowed with the equal rights granted to others, are not positively per/prosecuted. It would seem, in fact, that subordination does not work i n a simple way. The notion o f 'intersectionality' suggests that gay men and lesbians, like the rest o f society, are not a homogeneous group, and subjected to the same sort o f discrimination and the same degree o f silencing practices by virtue o f their being homosexuals. Race and gender meet sexual preference and fast around bodies, intersecting with class relations, to create peculiar experiences o f discrimination  and empowerment. Similarly, the same discourses  that silence and constrain us in certain contexts incite us to speak up in others. To this extent the silenced minority o f gays and lesbians has been less than silent. There is no point, however, either i n disavowing that participation on equal terms in the process o f society's self-definition does not seem to have graced lesbians and gay men, or i n denying that lesbians and gay men are silenced, i f not as a group, then at least as individual histories. Nevertheless, it seems reductive to blame homophobic hate speech any more than other social/discursive practices for this less than full enjoyment o f equal rights: it is indeed doubtful that gay men and lesbians are silenced more by homophobic hate speech, than by a variety o f other causes. While, as I have suggested i n section V I i n this chapter, a 'privileged' relation may be deemed to exist between hateful homophobic speech and emotional distress o f some sort, it is less clear that an elective relation may be found to exist between the latter and changes in attitudes that more directly impact on gays' and lesbians' exercise o f rights (or directly between such attitudinal changes -that can be characterised, for this purpose, as another specific kind o f perlocutionary effects- and homophobic hate speech). This is  153  not to deny that such relations exist, but I cannot bring myself to believe that they are any more significant (if anything I would contend that they are less so) than, say, those existing between these perlocutionary effects impacting on lesbians' and gays' exercise o f democratic rights (such as freedom o f expression) and instances  o f non-hateful  homophobic speech. W e might think, just to name a few, about mildly homophobic talk and presumptive heterosexuality talk in everyday social  interaction, compulsory  heterosexuality talk aired in the context o f a queer's family, ignorant talk, religious pitying, marginalisation o f gays and lesbians' experiences in mainstream culture, medicalisation and pathologisation o f homosexuality, and the L a w ' s expressions o f lack o f concern for -or downright discrimination against, or substantial endorsement o f privates' discrimination against- homosexuals. Thus, hate speech would appear to be only one o f the techniques through which lesbians and gay men are made unequal, and probably not the crucial one. The way i n which by suppressing homophobic hate speech, without more, sexual minorities' role in society's self-government and definition would be made greater and their speech would end up being expressed and circulated any more significantly than is at present is not really clear. The experience o f countries endowed with hate speech laws seems to prove that bigotry does not need hate speech to thrive.  Hate speech laws are attractive for progressive people, as they appeal to somewhat intuitive notions o f justice. Prejudice, when it assumes  hateful tones, sounds  so  immediately, totally wrong and hideous that there does not seem to be any point in letting people spew it. When I was first exposed to the American civil libertarian approach to hate speech, I admit it being hard for me to instinctively applaud its 'wisdom.' A s Matsuda points out,  "[accepting this extreme commitment to [freedom o f expression] is  neither easy, nor natural. It is a concept one must learn."  281  I have a feeling that hate speech laws against homosexuals can be politically sold with comparative ease also to people generally subscribing to the values o f dominant ideology. A lot o f people who subscribe to dominant values, conceivably, take it for  154  granted that it is wrong to vilify and propagandise hate, no matter on what ground (a lot of people believe 'radical' political opposition is wrong, too: which sort o f tells something about what the principle o f freedom o f expression is all about). A t the same time a lot o f these people would rather not have gay instructors teaching to their children, are ambivalent as regards public display o f affection on the part o f homosexuals, as well as extending to people engaging in same-sex relationships the same benefits enjoyed by heterosexual couples; and are quite positive about considering it out o f the question that adoption rights for lesbians and gay men are a bad thing. This is not surprising- i n some way these attitudes simply reflect a somewhat 'popularised' version o f the minority paradigm: while the philosophy underlying the minority paradigm is 'equal rights yes, but  they are different,' people's common sense would seem to go something like 'equal rights yes, but not all o f them.' This again casts some doubts on the conviction that it is hate speech that most significantly hinders lesbians and gay men from enjoying full equality.  Carol Smart, with regard to the problem o f sexist representation, argues: "It is ... the case that i f we direct ourselves to the problem o f the extension o f the pornographic genre [i.e. advertising, soap operas, romantic novels, etc.] rather than pornographic material as such, then the law as a possible remedy appears less and less useful."  282  Smart however, is speaking about gender inequality, and specifies at another juncture that " L a w may remain oppressive to women, but the form it takes is no longer the denial o f formal rights which are preserved for men," and that "it was important, as a first step, that these privileges were removed."  283  To paraphrase Smart, I would suggest that i f we direct ourselves to the problem o f the extension o f the homophobic genre rather than homophobic hate speech as such, then censorship as a possible remedy appears less and less useful. A t the same time, since the Law remains oppressive to lesbians and gay men, denying them formal rights which are 281  282  M.J. Matsuda, supra note 11 at 2350. C. Smart, supra note 33 at 136.  155  preserved for heterosexuals, it is important, as a first step, that these privileges are removed. Homophobia needs to be seriously addressed at different levels. A great deal o f lesbians' and gay men's inability to exercise their rights as equal citizens depends not only on their not having the practical possibility, but also on their being officially denied the theoretical chance -i.e. the formal permission- to exercise equal rights. In a number o f western countries the subject o f a range o f rights is, as we have seen, heterosexual. Thus one wonders whether, for example, the symbolic value o f obtaining formal equal rights for lesbians and gay men would (by exploiting the L a w ' s potential, as a powerful discourse, to de-authorise understandings that conflict with it) have a greater impact on homophobic attitudes related to gays' and lesbians' impaired participation in the process o f society's self-definition than any hate propaganda law, which might be taken as doing little more than merely codifying understandings already prevalent in society at large (namely, that hatred, be it racist, homophobic or what not, is wrong).  284  Even so, it seems clear that achievement o f equal rights would not be a sufficient measure, on the practical level. History would suggest that c i v i l rights struggles reduce the oppression o f bigotry, but do not eliminate it. For example, hate speech would not lose its power to injure just because gay men and lesbians have obtained a greater degree o f equality through being granted equal rights: even i f homophobic hate speech acts could not count anymore on institutionally bound norms to secure their harmful effects, they could still rely on those normative truths produced by other (institutionally unbound) authoritative social discourses.  283  Ibid, at 139.  Since I adopted Matsuda's approach, that takes freedom of speech seriously, I am here limiting my observations to homophobic hate speech laws that would not appear obviously irreconcilable with a robust freedom of expression principle. Such laws, in the context of racist speech, would focus on the following elements: "In order to distinguish the worst, paradigm example of racist speech hate messages from other . forms of racist and nonracist speech, three identifying characteristics are suggested here: /1. The message is of racial inferiority; / 2. The message is directed against a historically oppressed group; / 3. The message is persecutorial, hateful and degrading. ... Under these narrowing elements, arguing that particular groups are genetically superior in a context free of hatefulness and without the endorsement of persecution is permissible. Satire and stereotyping that avoids persecutorial language remains protected. Hateful verbal attacks upon dominant-group members by victims is permissible. These kinds of speech are offensive, but they are ... best subjected to the marketplace of ideas ... [T]he range of private remedies -including counterspeech social approbation, boycott, and persuasion - should apply:" M.J. Matsuda, supra note 11 at 2358. 2 8 4  156  To overcome the difficulties posed by the insufficiency o f addressing homophobia by merely relying on granting equality o f rights to lesbians and gay men, I believe that another measure is  indispensable-  which,  at  the  same time,  would (contrary  to  homophobic hate speech regulation) avoid making problematic exceptions to the free expression p r i n c i p l e .  285  This measure would involve the state's seriously undertaking an  educational program directly aimed at promoting equality for gays and lesbians (as w e l l as other minorities), implemented, inter alia, through the school system.  286  It does not seem that, by taking an unambiguous stand i n terms o f promoting one (admittedly,  political) idea over  others, the  state would here be  doing  anything  constitutionally scandalous, i n terms o f contravening the philosophical foundations o f freedom o f expression. A s I envisage it below, I would even argue that this way o f addressing the harms o f homophobia would, indeed, seem to be the most consistent with free speech values. Consider that to the extent that a substantial degree o f equality is necessary for ensuring society's self-government, it could be argued that equality stands on an equal footing with freedom o f expression. Both the principle o f equality and freedom o f  Slippery slope arguments are sometimes characterised as the discursive projection of neoconservatives' antipathy for the government, -see e.g. R. Delgado & J. Stefancic, supra note 11 at 118- or of the half-blind scepticism in the state's wisdom typical of socially privileged civil libertarians -see e.g. A. Scales, "Feminist Legal Method: Not so Scary" (1992) 2 U.C.L.A. Women's Law Journal 1 at 19, note 65. Although the slippery slope metaphor can be deployed (as probably any other legal argument) to serve conservative ends, its current validity seems to me to be proven by the way in which considerations meant supposedly to discredit such validity have to be framed by their proponents: "Indeed, the experiences of Canada, Denmark, France, Germany, and the Netherlands... imply that limited regulation of hate speech does not invariably [!], or even [\\] frequently, weaken the respect accorded free speech:" (emphasis added) R. Delgado & J. Stefancic, ibid, at 125. For an example of this approach in the field of racism, consider that "Iceland has a compulsory social studies curriculum dealing with hate and discrimination which continues from first to ninth grades in school. The curriculum is very detailed. Iceland claims that its curriculum produces a person who, at the age of 10, is acquainted with various customs and habits of others and realizes how unfamiliarity with these customs leads to prejudice and conflict:" J. Magnet, "Hate Propaganda in Canada" in W.J. Waluchow, ed., Free Expression: Essays in Law and Philosophy (Oxford: Clarendon Press, 1994) 223 at 227. For similar experiences that directly relate to the problem of homophobia, consider that "[fjhere are [at least] two Australian programs focused on homophobia ... [Ejducators in the US have been developing antihomophobic educational strategies for several years now ... An important finding of [a] study [evaluating the effectiveness of short anti-homophobic courses in schools] is that it is possible to reduce antihomosexual bigotry through educational interventions ... However, the positive effects were less for male students, and some of the positive effects lasted less for male students:" M. Flood, "Homophobia and Masculinities among Young Men (Lessons in Becoming a Straight Man)" (1997), online: O'Connell Education Centre <http://online.anu.edu.au/~al 12465/homophobia.html> 2 8 5  2 8 6  157  expression belong, i n this sense, to a superior, as it were, order o f rules, that makes the very process o f society's self-definition possible at all. Consider further that precisely because both equality and free speech are so paramount i n that they are instrumental to democratic self-definition, the state would be justified i n adopting a 'partisan' stance towards the value o f equality, actively promoting it through the educational system,  at the same time as it should recognise an almost  absolute right to freedom of expression, that would leave hate propaganda unregulated. In fact, I would argue that it would be precisely the state's leaving freedom o f speech untouched, i n terms o f not attaching any negative sanction to expression that, without more, even hatefully contests the value the state would actively promote (equality), that would legitimise the state's support for this value. Such a strong commitment to freedom o f expression, so as to cover even hate speech, would show that the state's concern is not that o f pre-empting the debate about societal self-definition, but merely that o f ensuring the implementation o f those circumstances where society's self-definition becomes possible at a l l .  287  In other words,  precisely the contradictoriness o f both positively promoting equality at the educational level and leaving hate speech unregulated would show how the state's interest is merely the 'neutral' one o f creating the conditions for democratic self-definition,  288  and not that  o f enforcing, by putting itself above the citizens, an official morality. Thus, there would be no risk that this would constitute a precedent for the government o f the day to indoctrinate the citizens with its contingent political views: for the state to legitimately promote a value i n educational institutions, it would have to show  Besides, the state already attempts to ensure every citizen's equal rights through anti-discrimination laws, and it could be said that promotion of the value of equality at the educational level would be just another way of doing that. Of course the state's concern here is 'neutral' only to the extent that there is general agreement about the fact that democratic self-definition (a political value itself) is the ultimate prescriptive principle, in the sense that no valuable alternative seems to have been offered yet. To the extent that democratic selfdefinition, through freedom of expression and the degree of equality necessary to make it meaningful, is the only means, to my knowledge, that allows everybody to promote their own political values, the principle of democratic self-government and those of equality and freedom of expression can be said to belong to a superior order of constitutional rules that could appropriately be considered immutable. 2 8 7  2 8 8  158  that, like freedom o f expression and equality, that principle belongs to superior order rules that make democratic  self-definition possible in the first place.  289  Especially where such a system were chosen instead of the option of criminalizing homophobic hate speech, it might be thought to do away with a number of problems (too often overlooked, and that even here can be only hinted at) that the use of the criminal law entails when used to outlaw hate speech (let alone other general problems associated with it: consider, e.g., that in a Nietzschean-inspired poststructuralist perspective the subject -here, the speaker of the hateful utterance- is a construction that is belatedly instituted only to legitimise, through the fictitious concept of accountability, a will to punish: see 2 8 9  e.g. J.P. Butler, Burning Acts- Injurious Speech, supra note 235, 197 at 206). For example, respect for the  principle of the presumption of innocence (a safeguard against authorities' abuse of power that seems hardly dispensable with) requires the doer of a criminal act to have a guilty mind as regards the harm that its act produced. This means that the speaker must want not only to throw the victim into the state of emotional distress/intellectual prostration/oppositional mood that a hate speech act can be plausibly thought to be aimed at bringing about (in other words: the perlocutionary effects of the speech act must tally with or be contained within the speaker's perlocutionary aim); the speaker must also know that these conditions will impair the victim's ability to fully exercise its rights of equal democratic citizenship. Although such knowledge will be present at (maybe most) times, it cannot assumed that is the case at all times, and in these cases conviction should not follow. When criminalisation of hate speech is the remedy, there are also other serious problems that arise with reference to the presumption of innocence, to the extent that this requires a certain distribution of the onus of proof. Would, when a homophobic slur was uttered in a face to face encounter, the Crown have to prove how, e.g., the emotional distress the victim experienced impacted in general on its ability to function as a full citizen? Or how the homophobic utterance had a silencing effect? Or how it impacted on the specific exercise of a democratic right? And when a homophobic utterance was issued to the general public, in relation to who (which victims) should the Crown prove what, if anything? In this last case all the victimless crime controversy (here, of course the victim, rather than absent, is collective) would get involved. Such questions, which may be thought to be not insurmountable, nevertheless deserve close scrutiny: any deviation from liberal criminal law tenets, considering the invaluable protective power of such principles, should itself be principled in turn to avoid watering down such power. Of course, it could be said that the law, for example both in Canada and the Unites States, already allows for such limitations of speech where, as in the case of defamation, the object that the law seeks to protect from speech is conceived as some sort of interest in 'fair social interaction:' the idea being that everybody should be able to function, socially, as they deserve, i.e. free from the shadow that their and other people's awareness of their reputation being blemished would cast on their interpersonal/social relationships. Moreover, in both countries, such limitations, at least in theory, can also be of a criminal nature. In defamation cases, subject to certain limitations, remedies are granted for the protection of this interest on the mere basis that words of a certain type will harm (or are proven to harm) one's reputation, and the law, presumably, assumes that this will translate into some sort of unfair social intercourse. I do not want to suggest, here, that libel is a model that could appropriately be used to inform the regulation of hate speech (the focus of defamation law upon the truth or falsity of the statements made, e.g., does not seem to translate into a terribly appropriate standard in the context of hate speech cases); nor that, the law already employing criminal measures to deal with a situation that may be viewed as problematic in terms of the principles of a'progressive criminal law system, we should not be too concerned about respect of these principles in proposing yet another such dubious use of criminal remedies. My point is rather to note that hate speech laws are not isolated in raising the sort of problems I have mentioned as regards the nature of the interests the law seeks to protect in limiting speech in certain cases (ability of the victims of speech to 'function', socially, free from unfair and undeserved hardships) and the assumptions that the law can make about the connections existing between given state of minds (in the victims or in others) and impairment of such interests. Reflection on these issues is particularly complex and important when both freedom of expression and the criminal law are concerned, for the former poses problems in terms of slippery slope risks and chilling effect, while the latter, considering the nature of its sanctions and its amenability to authorities' abuse, requires the selection of the objects of its  159  I have suggested that a system to combat homophobia which was centred on educational measures would seem to be not only, as I tried to argue in the foregoing, consistent with free speech values, but also a necessary supplement, at the practical level, to battles for lesbians and gay men's equality o f rights, to the extent that, obviously, the power o f these battles to overcome homophobia is limited. I would contend that such a system would be more effective on a practical level than also the proscription o f hate speech. The idea is quite simple: i f the harms related to hate speech and that would provide a reason for hate speech suppression are equally, i f not even more, connected with a range o f other arguably non-hateful, albeit homophobic, discursive and social practices, then it is plausible to see education as a more comprehensive, far-reaching remedy to address the problems posed admitting,  also by these other practices. Besides, even  arguendo, these harms being concentrated in specifically hateful (rather than  other) homophobic utterances, it seems clear that the educational function o f a criminal sanction attached to hate speech would be outdone by that o f a system that actively and directly promotes equality for gays and lesbians. Besides, in this framework homophobic hate speech that amounted (either to threats or) to advocacy o f violent/unlawful (e.g. discriminatory) action, directed to inciting or producing, and likely to produce or incite, such action (clear and present danger test) would still be, and should be, punishable. Similarly, hateful homophobic utterances that became, by virtue o f their being repeatedly delivered over time to an unwelcoming listener, harassing could be thought to appropriately undergo restriction: the element o f repetition, while arguably making more severe for the listener the injurious power o f speech, and significantly impacting on her individual capacity to effectively exercise her right to freedom o f expression, would at the same time make the speech o f the hate-monger less significant in terms o f 'marketplace o f ideas' and self-fulfilment  protection to be in some way principled, especially when such objects are not in some way empirically measurable and the relation between the acts on which the criminal provision impacts and the harm affecting these objects is, in some sense, a 'mediated' one.  160  values (to the extent that the message has already been aired).  290  A l s o other specific  contexts would seem to justify discrete instances o f hate speech restrictions. F o r example when speech o f instructors i n the classroom (and, arguably, outside: see  Brunswick School district no. i 5 )  2 9 1  Ross v. New  is i n question, regulation o f hate speech seems to be  mandated by the government's obligation to provide discrimination-free educational environments.  292  Finally, besides being respectful o f free speech doctrine and, conceivably, practically more effective than the alternative o f censoring hate speech, a remedy centred on educational programmes would appear desirable also from an ethical point o f view. Both criminalisation o f hate speech, and -although to a lesser extent- other (noncriminal) measures that are directed at deterring expressions o f bigotry by attaching to them negative sanctions enact a type o f discipline that conveys a scarcely flattering image of the society that chooses to thus address the harms produced by hate speech. A n analogous observation applies, it seems to me, to the implementation o f 'private' measures that the c i v i l society may apply i n the absence o f official responses to hate speech. I am thinking, for example, o f the John Rocker affair o f December 1999.  293  Feeling the need to make, and actually making, somebody spewing hateful remarks Especially in enclosed spaces such as campuses and workplaces, the fact that the message was directed to many, and not only to the unwelcoming listener, would not make it legitimate, to the extent that speakers do not ordinarily need, in order for their free expression to be significantly furthered, to discuss their bigotry in the presence of the unwilling listener. By analogy, posters whose message a worker wanted to convey to all co-workers could be legitimately removed to the extent that by definition the hate message would be persistently delivered, and would thus harass, the unwilling listener (while the poster could be showed privately to other co-workers, if, e.g., attached to the walls of the hate-monger's living-room). See, contra, E. Volokh, "Freedom of Speech and Workplace Harassment" (1992) 39 UCLA L. Rev. 1791 (who, however, admits restriction for 'fighting words'). [1996] 1 S.C.R. 825, aff g [1991] N.B.H.R.B.I.D. No. 1 (sub nom Attis v. New Brunswick (School 2 9 0  291  District 15)).  In these cases, however, anti-discrimination laws such as Canadian Human Rights Codes, rather than the criminal law, would seem to be an appropriate response: see S.S. Anand, supra, note 206 at 125-7 and 1456. Consider also that criminalisation (as distinguished from milder, more flexible disciplinary measures) might be thought to have, as far as hate speech is concerned, a strong deterring function on such people as instructors, judges, state officers. Still, for practical purposes, it is often vital for a minority group member to be aware of the strongly bigoted views of somebody occupying that position, and with whom the minority group member might happen to interact (e.g. to have proof of having been discriminatorily treated). American baseball player John Rocker (Atlanta Braves) made, in the course of an interview to 'Sports Illustrated,' among others, homophobic comments. The statements justly raised the indignation of a 2 9 2  293  161  undergo a psychological analysis  294  seems to point precisely to a worrisome grip, on our  societies, o f the paradigm type o f normalising technologies o f power.  295  Contrast these remedies to one i n which the state made it clear that education on the subject o f homophobic prejudice is prompted by the  belief that bigotry and ignorance  interfere with everybody's enjoyment o f the rights o f democratic citizenship. The state would not have an undisclosed perlocutionary aim (namely, that o f stopping hate speech at every cost, even i f the linguistic means employed involved techniques different from rational argumentation) which would fatally transform its speech acts i n unacceptable linguistically mediated strategic action- i.e., i n our specific case, indoctrination. In fact, imagine the state assuming an attitude directed, to use Habermas's terminology, to reaching understanding, i n the sense o f its making serious implicit offers to redeem the validity claims it would be raising. In this view, it would be the state's attempt to engage i n  communicative action with the citizens that not only would  legitimise its action, but that would also create the conditions for the success o f that action, supposedly bringing about a rational agreement between interlocutors and accordingly the decision, on the part o f the citizens, to undertake the obligation not to disseminate or support homophobia. But how can we square this idyllic picture with the poststructuralist insight that reveals that every position is political, that there is no knowledge outside power? Aren't these notions o f 'pure' rationality, o f ideal communicative action that remains untainted from strategic purposes, i n reality nothing but discipline i n disguise?  number of individuals and groups, and the developments of the story were followed and aired, among others, by the CNN for a comparatively long period of time. Major League Baseball required the player to undergo psychological testing. If the player had refused apparently he would have faced disciplinary sanctions. Besides, in a Foucauldian perspective that opposes modern and contemporary societies' advancement towards ever increasing systems of discipline and surveillance, referring to the authority of the human sciences may be seen, generally speaking and especially if (as happened in the case at issue) the story receives wide publicity, to add unnecessarily to the authority of the discourses produced in the context of the 'psy' professions, unwittingly empowering them -more than they already are currently- to define what is 'normal' and what is not. Note also that in a 'traditional' perspective that believes that personal responsibility counts, making a hate-monger symbolically undergo a psychological analysis belittles precisely the element of personal responsibility, suggesting that to be a bigot one needs to be mentally disturbed at some level. 2 9 4  2 9 5  162  O f course trying to get people not to disseminate hate is necessarily an attempt at disciplining them -whether that is reached through the human sciences or by other meansand the whole point, when responses to homophobic speech are discussed, is precisely that o f disciplining hate-mongers/homophobes. A s Cooper remarks, however, "discipline does not have to be conceptualized solely as a way o f maintaining domination or oppression. This being the case, a key strategic issue becomes how we shift to more symmetrical forms o f discipline rather than how (and whether) we can eradicate discipline altogether."  296  This suggests that i f the state's trying to defeat bigotry through education -i.e. employing the classic remedy o f more speech- could not be characterised as the triumph o f pure rationality, at least it would seem to constitute precisely a shift towards more symmetrical forms o f discipline.  297  D. Cooper, supra note 134 at 22. The suggestions I made above need elaboration. Complex but, I believe, not insurmountable problems arise as regards what precisely the state should teach. The problems connected with the minority paradigm (a regressive version of which, as I have suggested above, is already dominant in society, and compatible with mildly homophobic attitudes) would arise to the extent that the state limited itself to teaching 'traditional' notions of equality and respect without engaging in a discussion regarding the matrix of compulsory heterosexuality and the problematic nature of common sense understandings of gender roles (this might be taken to require entrusting gays and lesbians with the task of conveying notions challenging common sense notions of sex/gender/desire). The greatest problem of all would be, however, which political force would be willing to put such an educational program into practice, and how long-lived any such attempt would be. For example, for an account analysing the difficulties met by local authorities trying to promote positive notions of homosexuality in the U.K. in the 80's, (an experience leading to the enactment of the infamous s. 28 (see supra note 135)) see D. Cooper, Sexing the City (London: Rivers Oram Press, 1994). 2 9 6  2 9 7  163  CHAPTER  IV  I: Concluding Remarks. In western countries pornographic expression tends to be restricted on a basis (i.e. public morality) that seemingly makes such free speech restrictions very little justifiable. Radical feminists, i n Canada, have succeeded in introducing a somewhat better ground on which sexually explicit expression should, i f at all, be regulated- one that assimilates pornography to hate speech. B y taking into account the Canadian experience, and specifically considering the impact o f equality-centred anti-pornography measures on gay and lesbian sexually explicit representation, however, I have here taken the view that when the L a w limits sex expression on the basis o f the most powerful rationale currently advanced to justify pornography regulation, i.e. precisely that which assimilates pornography to hate speech, it necessarily ends up making strong and arbitrary claims to truth, that are premised on doubtful assumptions, silence alternative knowledges, subjugate outsiders' experiences, and contribute to the creation o f oppressive social identities. I have thus advised against the desirability o f defending censorship o f pornography on the basis o f egalitarian concerns, and I have consequently attempted to spell out to what extent, and some o f the conditions under which, engagement with court litigation and the deployment o f the discourse o f rights can be promising strategies for lesbians and gay men who wish to rid themselves o f such obscenity laws. While establishing a relationship between pornography and inequality seems very problematic, hate speech is more evidently linked to discrimination. Hate speech laws are widely accepted among western countries as the standard way o f dealing with the problem o f the dissemination o f hate. Anti-vilification legislation on the basis o f sexual orientation is more and more becoming an issue facing contemporary legislatures.  164  By  considering the role that homophobic hate speech, compared to  other  social/discursive practices, plays i n perpetuating inequality for lesbians and gay men, I have suggested that legal provisions that attempt to proscribe hate speech are the easiest but also, taken on their own, a largely ineffective way o f responding to homophobia. Hate speech laws thus bear a presumption o f being an unnecessary burden on freedom o f expression, a liberty that minorities have a vested interest in keeping as intact as possible. I have argued that what is required against the power o f homophobia and bigotry is a more radical measure, focusing on education, that w i l l actively promote equality values. I have further expressed the view that this remedy appears to be consistent with free speech doctrine precisely to the extent that hate speech w i l l , setting apart some specific cases, escape regulation. Both i n arguing in favour o f gays' and lesbians' engagement with court litigation in order to affirm their claim to freedom o f sexually explicit expression, and in suggesting that a preliminary necessary step to combat homophobia is having gays and lesbians recognised as equal, full citizens, I have implied that in a society where the liberal discourse o f rights is hegemonic, it may make sense to speak that language in those areas where departures from such a discourse characterise the system, and where adoption o f that discourse would be likely to have emancipatory consequences (it is ironic that institutions drop that discourse precisely where consistently upholding it would be useful for gays' and lesbians' equality). It may well be that by deploying the L a w to affirm self-expression and counter discrimination lesbians and gay men contribute to legitimising the system. If such deployment is critical, however, there is no reason why such legitimisation should be a legitimisation o f the status quo. It is maybe the case that the system itself changes in the process, that it is resignified by our practices, that it gets queered: it may be that the system turns out to be legitimised because, ultimately, it  165  becomes more legitimate.  BIBLIOGRAPHY  LEGISLATION: Canada:  Canadian Charter of Rights and Freedoms, ss. 1, 2(b) and 15(1), Part 1 of Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c l 1  the  Criminal Code, R . S . C . 1985, c. C-46, ss. 163 and 319(2)  Customs Act, R . S . C . 1985, c. 1 (2nd Supp.), ss. 58 and 71; Customs Tariff, S.C. 1985, c. 41 (3rd Supp.), s. 114 and Sch. V I I , Code 9956(a) (now Customs Tariff, S.C. 1997, c. 36, s. 136(1) and Sch. 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