Philosophy & Public Affairs

Philosophy & Public Affairs 31.2 (2003) 155-189

Conversational Exercitives and the Force of Pornography

Mary Kate McGowan

I. Introduction

Many theorists (e.g., critical race theorists and feminists) argue that certain forms of speech currently protected under the First Amendment (e.g., racist hate speech and pornography) ought to be prohibited. ¹ Their arguments tend to focus on an alleged connection between harm and the speech in question. Many argue, for example, that the speech in question ought to be prohibited because of the harm it causes. These arguments rely on the truth of complex causal claims and such claims are notoriously difficult to establish. ² Some theorists opt for a different approach. These more "radical" theorists contend that the speech in question actually constitutes harm. On this view, the speech in question ought to be prohibited because it constitutes acts that the law already prohibits (e.g., acts of subordination and discrimination).

Catharine MacKinnon is one such theorist. ³ She contends that pornography both subordinates and silences women. It is unclear how pornography [End Page 155] (mere pictures and words) could do the sorts of things that MacKinnon claims it does. As we shall see in Section II, part 2, however, J. L. Austin has shown that speech can constitute action and, since pornography is treated as speech by the courts, some theorists, such as Rae Langton, defend the coherence of MacKinnon's claims by offering a speech act analysis of pornography. ⁴

In this article, I present five challenges to Langton's analysis of pornography. Each is motivated by the theory of speech acts on which her analysis rests. I then present a previously overlooked sort of speech act, the conversational exercitive, and demonstrate that it enables Langton to avoid the five challenges and thus affords a better model for her purposes. Finally, I present some of the challenges remaining for the revised speech act model offered here.

It is prudent, at the outset, to be explicit about the (rather modest) aim of this article. I aim only to offer a philosophically coherent speech act analysis of (some of) Catharine MacKinnon's claims about the nature of pornography. ⁵ It is not my aim here to establish that such claims are, in fact, true. After all, philosophers are not well placed to settle such complex empirical questions. Instead, I aim only to show that such claims are philosophically coherent. That is, that they could be true. ⁶

II. Background

Since the aim of this paper is to offer a revised speech act analysis of MacKinnon's claims about pornography, background on both MacKinnon's claims and speech act theory need to be presented. I turn now to the first of these tasks. [End Page 156]

1. MacKinnon

Although we have free speech, we do not thereby have the legal right to say whatever we please. Some speech is unprotected by the First Amendment. When Lilly said, for example, "You are hereby hired to kill my ex-husband," her utterance was illegal. Although freedom of expression in general guarantees the free expression of ideas, some utterances are nevertheless prohibited based on what such utterances do. In saying what she said, Lilly performed the action of hiring a hit man and that action is illegal. As we shall see more clearly in the next section, speech can constitute action. (Verbal bets, promises, and orders are other examples of utterances that constitute action.) Current law already prohibits some speech based on what the speech in question does.

According to MacKinnon, pornography is speech that does things. In particular, MacKinnon contends that pornography both silences and subordinates women. According to MacKinnon, pornography makes it the case that women have an inferior social status and, by doing so, pornography subordinates women. If, as MacKinnon contends, pornography subordinates women, then pornography poses a conflict between the First and Fourteenth Amendments. In such a case, the First Amendment right to produce, distribute, and consume pornography directly conflicts with women's Fourteenth Amendment right to equality. MacKinnon also claims that pornography silences women by somehow depriving...