1993 Speech Acts And Unspeakable Acts

Rae Langton run01.tex V1 - August 21, 2008 6:39pm Page 25
1
Speech Acts and Unspeakable
Acts∗
Pornography is speech. So the courts declared in judging it protected by the
First Amendment. Pornography is a kind of act. So Catharine MacKinnon
declared in arguing for laws against it.¹ Put these together and we have:
FN:1
pornography is a kind of speech act. In what follows I take this suggestion
seriously.
If pornography is speech, what does it say? If pornography is a kind of
act, what does it do? Judge Frank Easterbrook, accepting the premises of
antipornography legislation, gave an answer. Pornography is speech that
depicts subordination. In the words of the feminist ordinance passed in
Indianapolis, pornography depicts women
dehumanized as sexual objects, things or commodities; enjoying pain or humiliation
or rape; being tied up, cut up, mutilated, bruised, or physically hurt; in postures
of sexual submission or servility or display; reduced to body parts, penetrated by
objects or animals, or presented in scenarios of degradation, injury, torture; shown
as filthy or inferior; bleeding, bruised or hurt in a context which makes these
conditions sexual.²
FN:2
∗ This essay first appeared in Philosophy and Public Affairs 22 (1993), 293–330.
¹ In, e.g., Catharine MacKinnon, ‘Linda’s Life and Andrea’s Work’, Feminism Unmodified (Cambridge,
Mass.: Harvard University Press, 1987), 130. Pornography, as defined by MacKinnon, and as discussed
in this paper, is not the same as obscenity. See MacKinnon, ‘Not a Moral Issue’, ibid.; and
Frank Michelman, ‘Conceptions of Democracy in American Constitutional Argument: The Case of
Pornography Regulation’, Tennessee Law Review 56 (1989): 294 n.8. MacKinnon drafted an ordinance
that was passed in Indianapolis in 1984, but was then challenged and defeated. See American Booksellers,
Inc. v. Hudnut, 598 F. Supp. 1327 (S. D. Ind. 1984). The ordinance made trafficking in pornography
civilly actionable, rather than simply prohibiting it. I do not address this admittedly important feature
of the legislation here.
² MacKinnon, ‘Francis Biddle’s Sister’, Feminism Unmodified, 176.

26     
Pornography is a kind of act that has certain effects. Depictions of
subordination, said Easterbrook, ‘tend to perpetuate subordination. The
subordinate status of women in turn leads to affront and lower pay at
work, insult and injury at home, battery and rape on the streets’. His
conclusion was that the ordinance was unconstitutional: for, he said, ‘this
simply demonstrates the power of pornography as speech.’³
FN:3
Pornography, on this view, depicts subordination and causes it. A
closer look at the words of the ordinance shows us that MacKinnon is
saying something more. Before describing what pornography depicts, the
ordinance begins: ‘We define pornography as the graphic sexually explicit
subordination of women in pictures or words’. Besides depicting and
causing subordination, as Easterbrook allowed, pornography is, in and of
itself, a form of subordination.⁴
FN:4
This latter aspect of the legislation provoked the ire of judges and
philosophers alike. In proposing that pornography actually is subordination,
the drafters of the ordinance were tricksters, guilty of ‘a certain sleight of
hand’, said Judge Barker, in the district court.⁵ They were guilty of
FN:5
conceptual confusion, and their claim was ‘philosophically indefensible’,
said William Parent in the Journal of Philosophy.⁶ It is all very well to
FN:6
talk about what pornography depicts; and it is all very well to talk about
the effects it has on the lives of women. It is all very well to say, with
Easterbrook, that pornography depicts subordination and causes it. Such
claims may be unnerving, and they may be empirically false, but they are
³ American Booksellers, Inc. v. Hudnut, 771 F. 2d 329 (7th Cir. 1985).
⁴ Easterbrook’s omission has been commented upon by Melinda Vadas in ‘A First Look at the
Pornography/Civil Rights Ordinance: Could Pornography Be the Subordination of Women?’ Journal
of Philosophy 84 (1987), 487–511. Vadas is interested, as I am, in saving the ‘subordinating’ claim
from charges of conceptual confusion, and she develops an interesting analysis which differs from that
offered here. She says that some predicates can apply to a representational depiction because they
apply to the scene depicted. ‘Subordinates’ is such a predicate, in her view, so pornographic depictions
of subordination can themselves subordinate. My view is that the link is not as close as she sees it:
an utterance’s depicting subordination is neither necessary nor sufficient for its having the force of
subordination. The reasons for this will emerge shortly.
⁵ Hudnut, 598 F. Supp. 1316 (1984).
⁶ W. A. Parent, ‘A Second Look at Pornography and the Subordination of Women’, Journal of
Philosophy 87 (1990), 205–11. Parent’s article is a response to Vadas’s. He argues, by means of the
following remarkable non sequitur, for the different conclusion that pornography is morally evil
(p. 211). ‘Evil’ means ‘depraved’. ‘To deprave’ means ‘to debase.’ ‘To debase’ means ‘to bring into
contempt’. Pornography brings women into contempt, ergo pornography is evil. What actually follows
from Parent’s lexicographical premises is of course that women are evil. Women are brought into
contempt (by pornography), therefore debased, therefore depraved, therefore evil.

     27
not, at least, incoherent. MacKinnon wants to say something more: she
wants to attend not simply to the content of pornographic speech, nor
simply to its effects, but to the actions constituted by it.
What she says may strike a chord of recognition among those who
recall an older, more tranquil debate in the philosophy of language, and
a philosopher who took as his starting point the slogan that ‘to say
something is to do something’. In How to Do Things with Words, J. L.
Austin complained of a ‘constant tendency in philosophy’ to overlook
something of great importance: a tendency to consider the content of a
linguistic utterance, and its effects on hearers, but to overlook the action
constituted by it.⁷ Austin encouraged philosophers to shift their gazes away
FN:7
from statements considered in isolation, sentences that describe, truly or
falsely, some state of affairs, and look instead at ‘the issuing of an utterance
in a speech situation’.⁸ Words, he said, were used to perform all kinds
FN:8
of actions—warning, promising, marrying, and the like—that philosophy
had blithely ignored.
To say something is usually to do a number of different things. An
example (from Austin):⁹ Two men stand beside a woman. The first man
FN:9
turns to the second, and says ‘Shoot her.’ The second man looks shocked,
then raises a gun and shoots the woman. You witness the scene and
describe it later. The first man said to the second, ‘Shoot her’, meaning by
‘shoot’ to shoot with a gun, and referring by ‘her’ to the woman nearby.
That description roughly captures the content of what was said: it captures
what Austin called the locutionary act. To perform a locutionary act is to
utter a sentence that has a particular meaning, as traditionally conceived.¹⁰
FN:10
However, there is more to what you witnessed, so you describe the scene
again. By saying ‘shoot her’, the first man shocked the second; by saying
‘shoot her’, the first man persuaded the second to shoot the woman. That
description captures some of the effects of what was said: it captures what
Austin called the perlocutionary act. But if you stop there you will still
have left something out. You will have ignored what the first man did
in saying what he said. So you go on. In saying ‘shoot her’, the first
man urged the second to shoot the woman. That description captures
the action constituted by the utterance itself: it captures what Austin
⁷ J. L. Austin, How to Do Things with Words (London: Oxford University Press, 1962).
⁸ Ibid., 139. ⁹ Ibid., 101 (my version is a slight elaboration). ¹⁰ Ibid., 109.

28     
called the illocutionary act. The actions listed earlier—warning, promising,
marrying—are illocutionary acts. Austin’s complaint was that this latter
dimension to speech was often ignored, that there was ‘a tendency in
philosophy to elide [illocutions] in favour of the other two’. ¹¹
FN:11
Pornography is not always done with words. Yet Easterbrook’s descrip-
tion exemplifies the tendency of which Austin complained. Pornography
depicts subordination and causes it. That—in Austin’s terms—is to describe
its locutionary and perlocutionary dimensions. What is missing is a descrip-
tion of the actions constituted by pornographic utterances: in Austin’s terms,
pornography’s illocutionary force. MacKinnon supplies such a description
when she says that pornography is an act of subordination.
Like Austin, MacKinnon wants to undermine the dichotomy between
word and action. ‘Which is saying ‘‘kill’’ to a trained guard dog, a word or
an act?’ she asks, in a passage that echoes Austin’s example.¹² MacKinnon
FN:12
has accordingly been interpreted as saying that pornography is unprotected
conduct rather than protected speech,¹³ and one might imagine that Austin’s
FN:13
approach gives this idea some support. If pornography is a kind of act, and
action is conduct, then, one might think, pornography is unprotected by
the First Amendment. But that interpretation of MacKinnon is wrong. ‘To
state the obvious’, she says, ‘I do not argue that pornography is ‘‘conduct’’
in the First Amendment doctrinal sense’.¹⁴ In any case Austin’s approach
FN:14
would give it no support, for it does not help us to distinguish conduct
from speech. If there is a line that divides speech from conduct in the law,
it does not divide speech from action in Austin’s philosophy. On his view,
all speech acts are actions. To say that pornography is a kind of act is not
to say that pornography is conduct, and nothing that I say will turn on that
claim. The important point is that actions, whether speech or conduct, can
be protected or unprotected by law.¹⁵ Whether they are protected should
FN:15
¹¹ J. L. Austin, 103. ¹² MacKinnon, ‘‘Not a Moral Issue’’, Feminism Unmodified, 156.
¹³ For example by Barker, 598 F. Supp. 1316, 1330 (1984).
¹⁴ ‘‘Francis Biddle’s Sister’’, Feminism Unmodified, 300 n.155.
¹⁵ Expressive conduct is protected; speech of various kinds—libel, for instance—is unprotected.
See Laurence Tribe, American Constitutional Law, 2d edn. (Mineola, N. Y.: Foundation Press, 1988),
chap. 12. Tribe also comments: ‘The trouble with the distinction between speech and conduct is that
it has less determinate content than is sometimes supposed. . . . It is . . . not surprising that the Supreme
Court has never articulated a basis for its distinction; it could not do so, with the result that any
particular course of conduct may be hung almost randomly on the ‘‘speech’’ peg or the ‘‘conduct’’ peg
as one sees fit’ (p. 827). Speech act theory gives some grounds for being dubious about the distinction,
but that is not the point of what I have to say.

     29
depend, in general, on the effects they have, and the actions they are. On
MacKinnon’s view pornography is speech, not conduct, but it is speech
that should be left unprotected for the same kinds of reasons that other
actions are sometimes left unprotected: because of the effects they have,
and because of the actions they are.
Austin and MacKinnon are emerging as close, if unlikely, cousins. In
this essay I exploit the work of the former to illuminate and defend the
latter. I shall be concerned with two central claims. First is the claim already
encountered, that pornography subordinates women. If Austin is right, the
accusations of trickery and conceptual confusion leveled at this claim may
be misguided. Second is the claim that pornography silences women.¹⁶ This
FN:16
idea is sometimes offered in reply to the traditional ‘free speech’ defense of
pornography. ‘The free speech of men silences the free speech of women.
It is the same social goal, just other people’, says MacKinnon, arguing
that feminist antipornography legislation is motivated by the very values
enshrined in the First Amendment.¹⁷ This claim too has been regarded as
FN:17
problematic: its detractors describe it as ‘dangerous confusion’, while even
sympathizers have reservations, conceding that the silence in question is
‘figurative’, ‘metaphorical’.¹⁸ Drawing on Austin, we can show that the
FN:18
silence is not metaphorical, but literal, and that the second feminist claim is
as defensible as the first.
The claim that pornography subordinates women, however interpreted,
is a claim that pornography determines women’s inferior civil status.
Viewed thus, the ordinance poses an apparent conflict between liberty
and equality: the liberty of men to produce and consume pornography,
and the rights of women to equal civil status. That is how the case was
viewed by the courts. It posed a conflict between the right to free speech
guaranteed by the First Amendment, and the right to equality guaranteed by
¹⁶ This idea is developed by MacKinnon and others in many places, but see, e.g., MacKinnon,
‘Sexual Politics of the First Amendment’, Feminism Unmodified, 209.
¹⁷ MacKinnon, ‘‘Not a Moral Issue’’, ibid., 156. (I don’t think much hinges here on MacKinnon’s
talk of free speech being a social goal, rather than a right.)
¹⁸ Defending censorship in the name of liberty is ‘a dangerous confusion’; the idea that pornography
silences is ‘confusion’; see Ronald Dworkin, ‘Two Concepts of Liberty’, in Isaiah Berlin: A Celebration,
ed., Edna and Avishai Margalit (London: Hogarth Press, 1991), 103, 108. The claim that pornography
silences is ‘somewhat figurative’, and ‘metaphorical’, according to Frank Michelman, ‘Conceptions of
Democracy’, 294 n.8. (This figurativeness is not a handicap to the silencing argument in his view,
however.) Dworkin’s argument is criticized in more detail by Jennifer Hornsby, ‘Language, Power,
and ‘‘Silencing’’ ’, and by myself in ‘Pornography and Liberty: Reply to Dworkin’, both in progress.

30     
the Fourteenth Amendment. The claim that pornography silences women
expresses a different conflict, one within liberty itself. Viewed thus, the
ordinance poses an apparent conflict between the liberty of men to produce
and consume pornography, and the liberty of women to speak.
One eminent liberal theorist is on record as saying that only an argument
based on this second claim could have any prospect of success. It is only
by developing the argument that pornography silences women that one
could ‘hope to justify censorship within the constitutional scheme that
assigns a preeminent place to free speech’, says Ronald Dworkin in a
recent essay.¹⁹ His conclusion there is that the ‘silencing’ argument is
FN:19
unsuccessful. Dworkin is mistaken in his assumption, as there are other
ways of arguing for censorship. Indeed Dworkin’s own theory provides
an excellent resource for supplying such arguments, as I have shown
elsewhere.²⁰ I think he is also mistaken in his conclusion, and although this
FN:20
paper does not address his argument directly, the final section will go some
way towards showing why.
My paper divides into two parts, addressing the two ideas one at a time.
Once we consider pornographic images and texts as speech acts, we are
in a position to apply to them Austin’s distinctions between locutionary,
illocutionary, and perlocutionary acts. We can make good sense of some
central feminist claims when we focus on the illocutionary aspect of
pornographic speech. In the first section I develop and defend the claim
about subordinating. In the second section I develop and defend the claim
about silencing, drawing again on Austin. The relationship between speech
and power is a large and daunting topic, but without getting into deep
theoretical water we can begin with the following simple observation.
The ability to perform speech acts of certain kinds can be a mark of
political power. To put the point crudely: powerful people can generally
do more, say more, and have their speech count for more than can the
powerless. If you are powerful, there are more things you can do with
your words.
¹⁹ Dworkin, ‘Two Concepts’, 108.
²⁰ In ‘‘Whose Right?’’, this volume. There I develop two independent arguments from a Dworkinian
theoretical perspective for the conclusion that pornography ought to be censored. The first is an
argument of principle: the fact that preferences of pornographers are by Dworkin’s standards external
preferences shows that women would have rights against a permissive policy. The second is an argument
of policy: a prohibitive policy might have social equality as its goal, and pornographers would then
have no rights against it.

     31
This bears on the question about silence. If you are powerful, you
sometimes have the ability to silence the speech of the powerless. One way
might be to stop the powerless from speaking at all. Gag them, threaten
them, condemn them to solitary confinement. But there is another, less
dramatic but equally effective, way. Let them speak. Let them say whatever
they like to whomever they like, but stop that speech from counting as an
action. More precisely, stop it from counting as the action it was intended
to be. That is the kind of silencing I will consider, and it is a kind of
silencing about which Austin had something to say, without commenting
on its political significance. Some speech acts are unspeakable for women
in some contexts: although the appropriate words can be uttered, those
utterances fail to count as the actions they were intended to be. If it can be
shown that pornography contributes to this kind of silencing, then we will
have a new way of understanding the second feminist claim.
My task, then, is partly diagnostic and partly polemical. Some of what I
have to say will be as tentative and exploratory as Austin’s own suggestions
were. Some will not. Readers may find glaring sins of omission. Speech
other than pornography may subordinate and silence women, and this
raises important questions that are beyond the present project. But I
will develop an analysis of the claims about subordinating and silencing
that, if correct, will vindicate an argument that has been dismissed as
philosophically incoherent. Whatever grounds one might have for doubting
MacKinnon’s conclusions, philosophical indefensibility is not among them.
Understanding how pornographic utterances are speech acts will help
to vindicate the claim about subordination. Understanding how some
potential speech acts can be made unspeakable for women will help
to vindicate the claim about silencing. If the argument makes the first
claim plausible, pornography poses a conflict between liberty and equality.
If it makes the second plausible, pornography poses a conflict between
liberty and liberty: in particular between the free speech of men and that
of women.
If pornography does pose these conflicts, how then should it be treated
by the law? On MacKinnon’s view, speech that subordinates and silences
women is speech that should not be protected by law. Those who share
MacKinnon’s view may find in my arguments direct support for censorship.
However, some may see a gap between conclusions about the defensibility
of these feminist claims and conclusions about the need for censorship.

32     
There may well be such a gap, and if there is, it is one that I do little
to bridge here with independent argument. The reader must rest content
with a more modest result: the twin feminist claims are certainly coherent,
and, granting some not entirely implausible empirical assumptions, they
may well be true.
1. ‘Pornography Subordinates’
Speech Acts
Before considering whether pornographic speech acts may subordinate,
we will first look at speech acts in closer detail, and then ask whether in
principle speech acts may subordinate.
Austin’s chief concern was with illocutionary speech acts, and much
labor in How to Do Things with Words is devoted to discovering what
is distinctive about them. An illocutionary act is the action performed
simply in saying something. A perlocutionary act is the action performed
by saying something. A perlocutionary act is an utterance considered in
terms of its consequences, such as the effects it has on its hearers. Austin
took pains to distinguish illocutions from perlocutions, and he thought that
the phrases ‘in saying’ and ‘by saying’ were typical—though by no means
infallible—markers of the two. ‘In saying ‘‘I do’’ I was marrying; by saying
‘‘I do’’ I greatly distressed my mother.’ Saying ‘I do’ in the right context
counts as—constitutes—marrying: that is the illocutionary act performed.
It does not count as distressing my mother, even if it has that effect: that is
the perlocutionary act performed.
The illocutionary act bears certain relations to the other two. It can be
thought of as a use of the locution to perform an action. In the earlier
example, the first man used the locution ‘shoot her’ to urge the second to
shoot, whereas he might have used the very same locution to perform a
different action: to order the second, or to advise perhaps. An illocutionary
act may have a particular perlocutionary effect as its goal. When the first
man urged the second to shoot, he may have aimed to persuade the second
to shoot.
Austin’s belief that there is something distinctive about illocution-
ary acts seems right. What we have here are utterances whose force is

     33
something more than the semantic content of the sentence uttered—the
locution—and something other than the effects achieved by the utter-
ance—the perlocution. What is responsible for this important third
dimension? Austin’s answer was that an utterance has illocutionary force
of a certain kind when it satisfies certain felicity conditions. These are
typically set by conventions, written or unwritten, and typically require
that the speaker is intending to do something with his words. Speech acts
are a subset of actions in general, so there will always be some description
under which a speech act is intentionally performed, and not mere noise
and motion of lips.²¹ The intention to perform an illocution of a particular
FN:21
kind often has an important role to play in determining what illocution is
performed. Whether in saying ‘I do’ the speaker is marrying depends on
the felicity conditions of marriage, which require that the speaker intends
to marry, and that the utterance takes place in the course of a particular
conventional procedure, with appropriate participants (adult heterosexual
couple, unmarried, plus priest or registrar). The speaker will also need to
secure ‘uptake’: that is to say, the hearer must recognize that an illoc-
ution of a certain kind is being performed. So, at any rate, the typical
cases run.
However, speech acts are heir to all the ills that actions in general are heir
to.²² What we do, and what we aim to do, are not always the same. Speech
FN:22
acts can be unhappy, can misfire. Sometimes one performs an illocution
one does not intend to perform. The first man, of the earlier example, may
have ordered the second to shoot the woman, even if he did not intend to
order, but merely, say, to advise. ‘Coming from him, I took it as an order’,
the second might have said.²³ This is because the intention to perform an
FN:23
²¹ See Jennifer Hornsby, ‘Philosophers and Feminists on Language Use’, Cogito 2 (Autumn 1988):
13–15. For a similar approach to some of the questions addressed in this article, see Hornsby’s excellent
piece, ‘Illocution and Its Significance’, forthcoming in Foundations of Speech Act Theory: Philosophical
and Linguistic Perspectives, ed., S. L. Tsohatzidis (London and New York: Routledge, 1994). Hornsby
develops a sophisticated and somewhat different account of illocutions, and uses it to explain how
women can be silenced. She too considers the examples of refusal and giving testimony considered
later in this article.
²² Austin, How to Do Things with Words, 105.
²³ See ibid., 76. (The ordering discussed in this passage is contrasted with requesting, rather than
advising, as I have it.) This interpretation conflicts with some views about speech-act theory, but not,
I think, with Austin’s. See for example ibid., 114 n.1., where the ordering versus advising example
appears. What the example has in common with those Austin labeled misfires is that there is a gap
between the intended and the actual illocution.

34     
illocution of a certain kind is not always a necessary felicity condition for
that illocution. Here the context determines the uptake secured, which
in turn determines the illocution performed. Moreover, sometimes one
fails to perform an illocution one intends to perform. A misfire would
occur, for instance, if the marriage ceremony was not completed, if the
celebrant turned out to be an actor in priestly garb, or (Austin’s example)
if the prospective spouse was a monkey.²⁴ This is because the intention to
FN:24
perform an illocution of a certain kind is not the only felicity condition for
that illocution. These kinds of unhappiness will occupy our attention in
the final section.
Subordinating Speech Acts
We turn now to the second preliminary task: the question of whether
speech acts can, in principle, subordinate. Austin placed his theory of
speech and action firmly in the arena of social activity, and there is a
political dimension to this arena. People manage to do all kinds of things
with words. Besides advising, warning, and marrying one another, people
also manage to hurt and oppress one another. A child may chant that
‘sticks and stones may break my bones, but names will never hurt’. Names
do hurt, though. That is just why she chants. And that is why the law
regards some speech as injury. Words can break bones. ‘Shoot her!’ might
break a few, as a perlocutionary act at any rate. (‘By saying ‘‘shoot her’’
he caused her skull to be fractured’.) Speech can do more than break
bones. It can determine civil status, as Easterbrook agreed, interpreting the
idea in perlocutionary terms: by depicting subordination, pornographers
perpetuate subordination.
When MacKinnon says that speech can subordinate, she means some-
thing more: that pornography can have the illocutionary force of subor-
dination, and not simply have subordination as its locutionary content,
or as its perlocutionary effect: in depicting subordination, pornographers
subordinate. This is the alleged ‘sleight of hand’.²⁵
FN:25
We need to evaluate this charge. Can a speech act be an illocutionary
act of subordination? The answer, I think, is yes. Consider this utter-
ance: ‘Blacks are not permitted to vote.’ Imagine that it is uttered by a
legislator in Pretoria in the context of enacting legislation that underpins
²⁴ See ibid., 24. ²⁵ Judge Barker’s accusation, see 598 F. Supp. 1316 (1984).

     35
apartheid. It is a locutionary act: by ‘Blacks’ it refers to blacks. It is
a perlocutionary act: it will have the effect, among others, that blacks
stay away from polling booths. But it is, first and foremost, an illoc-
utionary act: it makes it the case that blacks are not permitted to vote.
It—plausibly—subordinates blacks. So does this utterance: ‘Whites only.’²⁶
FN:26
It too is a locutionary act: by ‘‘Whites’’ it refers to whites. It has some
important perlocutionary effects: it keeps blacks away from white areas,
ensures that only whites go there, and perpetuates racism. It is—one might
say—a perlocutionary act of subordination. But it is also an illocution-
ary act: it orders blacks away, welcomes whites, permits whites to act
in a discriminatory way towards blacks. It subordinates blacks.²⁷ If this is
FN:27
correct, then there is no sleight of hand, no philosophical impropriety,
about the claim that a certain kind of speech can be an illocutionary act of
subordination.
In virtue of what do the speech acts of apartheid subordinate? In virtue
of what are they illocutionary acts of subordination? In virtue of at least
the following three features, I suggest. They rank blacks as having inferior
worth. They legitimate discriminatory behavior on the part of whites. And
finally, they deprive blacks of some important powers: for example, the
power to go to certain areas and the power to vote. Here I am in broad
agreement with MacKinnon, who says that to subordinate someone is to
put them in a position of inferiority or loss of power, or to demean or
denigrate them.²⁸
FN:28
There are two brief caveats before I go on. First, on the notion
of legitimating: the illocutionary act of legitimating something is to be
distinguished from the perlocutionary act of making people believe that
something is legitimate. Certainly one effect of legitimating something is
that people believe it is legitimate. But they believe it is legitimate because it
has been legitimated, not vice versa. People believe discriminatory behavior
to be legitimate because it has indeed been made legitimate in that particular
²⁶ MacKinnon uses this example to make the point that words can be ‘an integral act in a system of
segregation, which is a system of force’ (MacKinnon, ‘On Collaboration’, Feminism Unmodified, 202).
²⁷ Here I depart from Vadas (‘A First Look’), for it is not in virtue of depicting subordination that
the ‘whites only’ sign subordinates, if it does. That utterance does not depict subordination, any more
than ‘I do’ depicts a marriage. So something can subordinate without depicting subordination. The
converse is also true. Something can depict subordination without subordinating (a documentary, for
example). Some examples of this will be considered shortly.
²⁸ MacKinnon, ‘Francis Biddle’s Sister’, 176.

36     
arena of activity (though there may still be some perspective outside that
arena from which one can say that discriminatory behavior is never truly
legitimate).²⁹ Second, I do not suggest that all acts of ranking, legitimating,
FN:29
or depriving of powers are acts of subordination. Someone may rank an
athlete as the fastest, legitimate beer drinking on campus, or deprive a
driver of his license. These may be illocutionary acts that rank, legitimate,
or deprive people of powers, yet they are not acts of subordination. But,
unlike these, the speech acts of apartheid are acts of subordination: they
unfairly rank blacks as having inferior worth; they legitimate discriminatory
behavior on the part of whites; and they unjustly deprive them of some
important powers.
Speech acts of this kind belong to an important class of illocutions
discussed by Austin towards the end of his work. Some illocutions involve
the authoritative delivery of a finding about some matters of fact or value.
Actions of ranking, valuing, and placing are illocutions of this kind, labeled
verdictive by Austin. For example: An umpire calls ‘Fault’ at a tennis match.
He expresses his opinion. He describes the world as he sees it. But he does
much more than that: he gives his verdict. A bystander says ‘Fault’. He
expresses his opinion. He describes the world as he sees it. What he says
has just the same content as what the umpire says: they perform the same
locutionary act. But the bystander’s utterance makes no difference to the
score. The umpire’s does. A government’s action of ranking members of
a certain race as inferior to others can be compared to the speech of the
umpire, rather than the bystander. The authoritative role of the speaker
imbues the utterance with a force that would be absent were it made by
someone who did not occupy that role.
Close relatives of verdictives are illocutions that confer powers and
rights on people, or deprive people of powers and rights. Actions of
²⁹ Compare an example borrowed from David Lewis. A master says to a slave: ‘It is now permissible
to cross the white line.’ In saying that, the master makes a certain move, performs a certain illocutionary
act: he makes it legitimate for the slave to cross the white line. The boundaries of what is legitimate and
what is not change immediately. The beliefs of the slave as to what is legitimate will also change—that
is to speak of the action’s effects, its perlocutionary dimension. Here too there may also be some
perspective from which we might say that it was never truly illegitimate for the slave to cross the
line, but that would be to move outside the bounds of the language game in question. See Lewis,
‘Scorekeeping in a Language Game’, Philosophical Papers, vol. 1 (Oxford: Oxford University Press,
1983), 233–49.

     37
ordering, permitting, prohibiting, authorizing, enacting law, and dismissing
an employee are illocutions of this kind, labelled exercitive by Austin.³⁰
FN:30
The speech acts of apartheid that legitimate discriminatory behavior and
unjustly deprive blacks of certain rights have an exercitive force that would
be absent if they were made by speakers who did not have the appropriate
authority.
It is in virtue of these particular verdictive and exercitive dimensions,
then, that the speech acts of apartheid subordinate. This already tells
us something important about any claim that a certain kind of speech
subordinates. For the crucial feature of verdictive and exercitive illocutions
is their sensitivity to the speaker’s authority, and we can accordingly
group them together under the label authoritative illocutions: actions whose
felicity conditions require that the speaker occupy a position of authority in
a relevant domain. Sometimes that authority is officially recognized. That
is true of the utterances of the legislator enacting the laws of apartheid,
and it is true of the umpire giving a verdict on a fault. But the principle
that illocutionary force can vary with the authority of the speaker is more
general. A slave may say to his master, ‘Is there anything to eat?’ and
the utterance may have the force of an entreaty. The master may say
to the slave, ‘Is there anything to eat?’ and the utterance may have the
exercitive force of an order. And the domains of authority can vary in
size and scope. The domain of the legislator’s authority is vast—the entire
population of a nation, present and future. There are smaller domains. A
parent who prohibits a child from venturing barefoot into the snow has
authority in the local domain of the family. A patient who prohibits a
doctor from administering life-saving medication has authority in the very
local domain of his own life, his own body. In all these cases the action
performed depends on the authority of the speaker in the relevant domain.
Subordinating speech acts are authoritative speech acts, so if we are ever
to count some class of speech acts as subordinating speech, the speakers in
question must have authority. This is something to bear in mind in what
follows.
³⁰ Austin’s discussion of verdictives and exercitives is in lecture 11, especially sections 1 and 2,
152–6. The description I give of exercitives is used by him for what is strictly a proper subset of that
class (p. 155).

38     
Pornography
MacKinnon thinks that pornography in particular subordinates. The courts
sometimes view this claim as a description of pornography’s content. ‘Those
words and pictures which depict women in sexually subordinate roles are banned
by the Ordinance’, said Judge Barker in the district court, giving this as
grounds for the Indianapolis Ordinance’s unconstitutionality.³¹ Barker is
FN:31
mistaken: the ordinance does not ban material simply by virtue of its
content, for at this locutionary level there is nothing particularly distinctive
about pornography. Not all sexually explicit depictions of subordination
are pornography, as MacKinnon herself points out.³² Utterances whose
FN:32
locutions depict subordination do not always subordinate. Locutions that
depict subordination could in principle be used to perform speech acts
that are a far cry from pornography: documentaries, for example, or police
reports, or government studies, or books that protest against sexual violence,
or perhaps even legal definitions of pornography. It all depends, as Austin
might have said, on the use to which the locution is put. If we are to
find what is distinctive about pornography, it seems that we must look
elsewhere.
The perlocutionary aspect of pornographic utterances has rightly attrac-
ted much attention. This, as we saw, is how Easterbrook interpreted
MacKinnon’s claim when he said that pornography ‘perpetuates’ subordin-
ation. At the perlocutionary level, pornographic speech can be variously
described. Some hearers are entertained and sexually aroused by it. At
this level a difference between pornography and documentaries that depict
subordination does emerge. Although similar locutions may be used in
both cases, different effects are achieved in the hearers: sexual arousal in
the one case, indignation, perhaps, in the other. Pornography does more
than arouse. Some of its hearers are distressed by it, as was made evident
at the 1983 Minneapolis hearings. Some, it seems, have their attitudes
and behavior altered by it in ways that ultimately hurt women: they can
become more likely to view women as inferior, more disposed to accept
rape myths (for example, that women enjoy rape), more likely to view rape
victims as deserving of their treatment, and more likely to say that they
³¹ 598 F. Supp. 1316 (1984), my italics. ³² MacKinnon, ‘Francis Biddle’s Sister’, 176.

     39
themselves would rape if they could get away with it.³³ This in turn means
FN:33
that some women are hurt by it. In Easterbrook’s words, pornography
perpetuates the cycle of ‘insult and injury at home, battery and rape on the
streets’.
The claim that pornography harms women is not yet the perlocution-
ary claim conceded by the court that pornography perpetuates women’s
subordination. Plenty of people are harmed by cigarettes, but they are not
thereby subordinated. A link between harm and subordination is made,
though, when we shift our perspective on the asymmetric pattern of sexual
violence and view it afresh, not simply as harm or as crime, but as an aspect
of women’s subordinate status.³⁴ To view it otherwise would be to obscure
FN:34
its systematically discriminatory nature, and to obscure the fact that the
perpetrators are nearly always members of one class of citizens, the victims
nearly always members of another. This shift in perspective is an important
feature of feminist political analysis, and it affects how we are to character-
ize pornography in perlocutionary (and, we shall see shortly, illocutionary)
terms. If pornography has sexual violence as its effect and sexual violence is
an aspect of women’s subordination, then pornography is a perlocutionary act
³³ So I interpret the available evidence. See Edward Donnerstein, Daniel Linz, and Steven Penrod,
The Question of Pornography: Research Findings and Policy Implications (New York: Free Press; London:
Collier Macmillan, 1987), to which the reader is referred for details of some relevant studies. Under
the influence of violent pornography, viewers ‘come to cognitively associate sexuality with violence,
to endorse the idea that women want to be raped, and to trivialize the injuries suffered by a rape
victim. As a result of these attitudinal changes, men may be more willing to abuse women physically
(indeed the laboratory aggression measures suggest such an outcome)’ (p. 20). Of material that is violent
and sexually arousing, though less sexually explicit (probably R-rated in the USA): ‘Men who were
exposed to the large does of filmed violence against women judged the victim of a violent assault and
rape to be significantly less injured, and evaluated her as generally less worthy than did the control
group of subjects who saw no films’ (p. 128). Of material that is sexually explict but ‘dehumanizing’
rather than violent: ‘subjects exposed to the dehumanizing material were more likely to report that they
might commit a rape if assured that no one would know and they would not be punished’, i.e., more
likely than control subjects and subjects exposed to merely erotic material (p. 78); Moreover ‘male
subjects still had a propensity to trivialize rape 3 weeks after exposure to nonviolent [dehumanizing]
pornography’ (p. 77). The authors observe that evidence regarding the latter material is mixed, and
hypothesize that the effects depend on concentrated dosage of dehumanizing scences, and relatively
long exposure. See also Public Hearings on Ordinances to Add Pornography as Discrimination Against Women,
Committee on Government Operations, City Council, Minneapolis, Minn. (Dec. 12–13, 1983). The
transcript of the hearings was published as Pornography and Sexual Violence: Evidence of the Links (London:
Everywoman, 1988), and mentions a study in which viewers exposed to pornography perceived half as
many rapes in a film as other viewers did, suggesting a decreased ability to perceive rape as rape (p. 21)
See also Report of the Attorney General’s Commission on Pornography (Washington, D.C.: United States
Government Printing Office, 1986).
³⁴ MacKinnon argues for this change of perspective in ‘Francis Biddle’s Sister’ and elsewhere.

40     
of subordination. That is how we reach the claim conceded by Easterbrook:
pornography perpetuates women’s subordination.
However, the claim that pornography subordinates women is an illoc-
utionary claim that goes beyond these locutionary and perlocutionary
dimensions, and it is related to other illocutionary claims that feminists
have made about pornography. Pornography is said to rank women as
sex objects, ‘defined on the basis of [their] looks . . . [their] availability for
sexual pleasure’.³⁵ Pornography represents degrading and abusive sexual
FN:35
behavior ‘in such a way as to endorse the degradation’.³⁶ MacKinnon has
FN:36
a striking list of illocutionary verbs: ‘Pornography sexualizes rape, bat-
tery, sexual harassment . . . and child sexual abuse; it . . . celebrates, promotes,
authorizes and legitimates them’.³⁷ These descriptions bear on the claim that
FN:37
pornography subordinates. Recall that we found three features in virtue of
which the speech acts of apartheid were plausibly described as illocutionary
acts of subordination. They rank certain people as inferior; they legitimate
discriminatory behavior towards them; and they deprive them of powers
and rights. The feminist claims we have just considered ascribe to porno-
graphy the first two of the three features. Pornography is, first, verdictive
speech that ranks women as sex objects, and, second, exercitive speech
that legitimates sexual violence. Since sexual violence is not simply harm,
not simply crime, but discriminatory behavior, pornography subordinates
because it legitimates this behavior. (Now we see how the feminist shift of
perspective on violence affects our characterization of pornography at the
illocutionary level as well.) For these two reasons, then, pornography is an
illocutionary act of subordination. That, at any rate, is the claim.
However, there is disagreement—to put it mildly—about the correct
ascription of pornography’s illocutionary force. And this raises some ques-
tions. How, in general, do we discover what illocutionary force an utterance
has? And what do we do in the face of disagreement? These are difficult
questions, whose difficulty Austin acknowledged and sought—with limited
³⁵ MacKinnon, ‘Francis Biddle’s Sister’, 173.
³⁶ Helen E. Longino, ‘Pornography, Oppression and Freedom: A Closer Look’, in Take Back the
Night: Women on Pornography, ed., Laura Lederer (New York: William Morrow, 1980), 29. (Longino
has the entire phrase in italics.)
³⁷ MacKinnon, ‘Francis Biddle’s Sister’, 171, emphasis mine. I do not italicize ‘sexualizes’ because
I think it may be a perlocutionary rather than an illocutionary verb, meaning something like ‘makes
viewers find the thought of rape, etc., sexually arousing’. But perhaps it is an illocutionary verb meaning
something like ‘legitimates rape, etc., in describing it as if it were normal sex’.

     41
success—to alleviate. Disagreements about the ascription of illocutionary
force can be hard to settle, the utterances in question needing to have ‘a
construction put upon them by judges’.³⁸
FN:38
In situations of disagreement, the disputed illocution usually falls short
of the paradigm case for the given illocution. In the paradigm case, one
knows just what the felicity conditions for the given illocution are, and one
knows that they are all satisfied. She said ‘I do’ in the presence of priest and
groom, the ceremony was uninterrupted, she intended to marry, etc., so
in saying ‘I do’, she must have been marrying. Moreover, in the paradigm
case, one knows that appropriate uptake is secured: all present took the
parties to have been marrying. And one knows about the perlocutionary
effects: the later beliefs of others that the parties were married, the mother’s
distress, the grandmother’s joy, and so forth. But when a speech act falls
short of the paradigm, though not far short, there may be dispute as to
what illocutionary act was performed. Suppose the marriage ceremony is
interrupted at the very end by the priest’s sudden heart attack. Not quite
all the felicity conditions for marriage are satisfied, and doubtless the event
is infelicitous in our usual sense of that term, but it may be near enough,
perhaps, to count as a marriage nonetheless. Or suppose it is not known
for certain that the priest’s qualifications meet the required standard, for he
is a refugee whose papers are missing. Not all the felicity conditions for
marriage are known to be satisfied, but near enough, perhaps, to count as a
marriage nonetheless. The first case presents a problem of vague boundaries:
we know that not all conditions have been satisfied, but perhaps it is close
enough. The second presents a problem of ignorance: we do not know
that all conditions have been satisfied, but again, perhaps it is close enough.
In both cases, what we have resembles but falls short of the paradigm, and
we have to ask ourselves, how close is close enough? Here there is scope
for argument.
One may argue in different ways. First, one may argue that, vagueness or
ignorance notwithstanding, some felicity conditions—important ones—are
satisfied, and that is good enough. ‘Shoot her’ might count as an order, even
if it failed exactly to match the paradigm—e.g., if it was intended merely as
advice, but was spoken by someone in authority, in an appropriate context.
Second, one may argue that uptake appropriate for the claimed illocution
³⁸ Austin, How to Do Things with Words, 114.

42     
has been secured. ‘Coming from him, I took it as an order’, as the hearer
may have said. Its being taken as an order may be a reason for thinking
it was an order. Third, one may argue that a speech act’s effects are best
explained by supposing that it has a certain illocutionary force. Part of the
explanation for my arriving at your party is that you performed a certain
illocutionary act: you invited me. Part of the explanation for my taking
the glass is that you performed another illocutionary act: you offered it to
me. Part of the explanation for whites’ discriminatory behavior is that such
behavior has been legitimated by law. Part of the explanation for blacks
keeping away from certain areas is that they have been ordered away. In
such cases the illocutionary acts explain the perlocutionary effects.
All three ways of arguing are fallible, and they come in an ascending
order of fallibility. The first, which says that at any rate some important
felicity conditions have been satisfied, is tolerably secure. It is certainly
a part of our practice of ascribing illocutions in everyday life, where
the problems of vagueness and ignorance do not halt us in our tracks.
‘In ordinary life’, as Austin says, ‘a certain laxness . . . is permitted’.³⁹ The
FN:39
second is more fallible: securing appropriate uptake may not be sufficient
for the illocution in question. The third is also fallible, since there may
be other possible explanations for the known effects: I may have come to
your party uninvited. However, each of the three, or some combination of
them, may be useful, depending on the evidence we have.
We are now in a position to consider the disputed question: does por-
nography subordinate? Since there is a dispute, it may be that pornography
fails to match exactly the illocutionary paradigm. I have not tried to say
exactly what the paradigm for subordination is, but I have suggested that
the speech acts of apartheid offer a clear example. They have verdictive
and exercitive force: they rank a class of people, legitimate discrimina-
tion against them, and deprive them of rights and powers. Their felicity
conditions include the condition that the speakers occupy a position of
authority. They are speech acts that achieve a certain uptake: they are
taken to be verdictive and exercitive acts (though not all hearers will take
them to be subordinating acts). They are illocutions that have a pattern
of perlocutionary effects on the beliefs and behavior of the population:
³⁹ Austin, How to Do Things with Words, 37. Austin is speaking in particular here about failures to
satisfy completely the procedural felicity conditions for an illocution.

     43
whites believe blacks to be inferior, believe discrimination against them to
be legitimate, and believe them to have fewer rights; whites discriminate
against blacks, and blacks stay away from polling booths. Such speech acts
are clearly acts of subordination.
Pornography falls short of this devastating paradigm in a number of
important respects, but it may nonetheless be subordination. There is scope
for argument in all three of the ways I discussed above. I begin with the
third. We might find explanations for pornography’s perlocutionary effects
in terms of its illocutionary force. If the earlier claims are right, then
pornography has a certain pattern of perlocutionary effects. It can affect
attitudes and behavior, making its hearers more likely to view women
as inferior, more disposed to accept rape myths, more likely to view
rape victims as deserving of their treatment, and more likely to say that
they themselves would rape if they could get away with it. Part of the
explanation for this pattern might be that pornography has a particular
illocutionary force: it ranks women as sex objects, and legitimates that kind
of behavior. If pornography has the perlocutionary effects MacKinnon
claims, then there is some reason for thinking it has the illocutionary force
she and other feminist writers have ascribed to it.
This conclusion is reached by inference to the best explanation, and
it is fallible. The hypothesis that you invited me to your party may best
explain my arrival, but there are other possible explanations. Similarly, the
hypothesis that pornography ranks women and legitimates certain attitudes
and behavior may well explain the presence of these attitudes and behavior,
but there are other possible explanations. The feminist claim would be
strengthened if there were other ways to argue for the conclusion that
pornography subordinates.
Let us consider the second way of arguing. What uptake does pornography
secure in its hearers? What act do its hearers take it to be? The answer
is mixed. Some hearers take it to be entertainment, escapist storytelling.
Other hearers take it to be subordination. They take pornography to be
something that ranks them, judges them, denigrates them, and legitimates
ways of behaving that hurt women. Here we find vivid disagreement
among the hearers as to just what the speech act is. Austin said that in such
cases utterances are liable to have ‘a construction put upon them by judges’,
but who is in a position to judge? We might say that those women who
take pornography to be subordination are in a better position to judge,

44     
that they can tell better than some other hearers what ranks them, what
demeans and denigrates them, and what seems to legitimate ways of acting
that are violent. But unless we privilege one group of hearers in this way,
our result with this way of arguing will be inconclusive, though it may give
some support to the claim that pornography subordinates.
We come now to the first way of arguing. The task of discovering
whether some important felicity conditions are met looks more hopeful,
for at least we know one felicity condition for subordination, and could
in principle know whether pornography satisfies it. Since verdictives and
exercitives are both authoritative illocutions, we know that the ability to
perform them depends on the speaker’s authority. The umpire, and not the
bystander, can call a fault. The government, and not the private citizen, can
enact law that ranks and legitimates. The authority in question need not be
as formally recognized as in those cases, but it needs to be there. This means
that in order to answer the question, ‘Does pornography subordinate?’ one
must first answer another: ‘Do its speakers have authority?’ If they do, then
a crucial felicity condition is satisfied: pornographers’ speech acts may be
illocutions that authoritatively rank women, legitimate violence, and thus
subordinate.
This question is, I think, at the heart of the controversy. If you believe
that pornographic utterances are made by a powerless minority, a fringe
group especially vulnerable to moralistic persecution, then you will answer
negatively. Not so if you believe, with MacKinnon, that pornography’s
voice is the voice of the ruling power. Liberal debate about pornography has
typically been premised on the former belief, and part of MacKinnon’s task is
to persuade us that it is false. Just as the speech of the umpire is authoritative
within a certain domain—the game of tennis—so pornographic speech is
authoritative within a certain domain—the game of sex. The authors of
pornographic speech are not mere bystanders to the game; they are speakers
whose verdict counts. Pornography tells its hearers what women are worth:
it ranks women as things, as objects, as prey. Pornography tells its hearers
which moves are appropriate and permissible: if it tells them that certain
moves are appropriate because women want to be raped, it legitimates
violence. If pornography is authoritative speech it may subordinate.
Does pornographic speech have the authority required to substantiate
MacKinnon’s claim? Is this crucial felicity condition satisfied? These are

     45
not really questions to be settled from the philosopher’s armchair. To
answer them one needs to know about the role pornographers occupy as
authoritative speakers about the facts, or supposed facts, of sex. What is
important here is not whether the speech of pornographers is universally
held in high esteem: it is not—hence the common assumption among
liberals that in defending pornographers they are defending the underdog.
What is important is whether it is authoritative in the domain that
counts—the domain of speech about sex—and whether it is authoritative
for the hearers that count: people, men, boys, who in addition to wanting
‘entertainment’, want to discover the right way to do things, want to
know which moves in the sexual game are legitimate. What is important is
whether it is authoritative for those hearers who—one way or another—do
seem to learn that violence is sexy and coercion legitimate: the fifty
percent of boys who ‘think it is okay for a man to force a woman
if he is sexually aroused by her’, the fifteen percent of male college
undergraduates who say they have raped a woman on a date, the eighty-six
percent who say that they enjoy the conquest part of sex, the twelve
percent who rank faces of women displaying pain and fear to be more
sexually attractive than faces showing pleasure.⁴⁰ In this domain, and for
FN:40
⁴⁰ ‘More than half the boys . . . thought that it was okay for a male to force (that is, rape) a female
if he was sexually aroused by her’, Robin Warshaw, I Never Called it Rape (NY: Harper and Rowe,
1988), 120, citing research by Jacqueline D. Goodchilds, Gail Zellman, Paula B. Johnson, and Roseann
Giarusso, ‘Adolescents and their Perceptions of Sexual Interactions’, in A. W. Burgess (ed.), Rape
and Sexual Assault, vol ii (NY: Garland Publishing Company, 1988). Warshaw is commenting on the
proportion of boys who thought it was ‘okay’ to ‘force sex’ when ‘she gets him sexually excited’
(51%), ‘she has led him on’ (54%), or ‘she is going to have sex with him and changes her mind’
(54%). Warshaw describes studies which ‘showed 15 percent of the male respondents reporting having
raped a date’, p. 14, citing work by Barry R. Burkhart and Annette L. Stanton, ‘Sexual Aggression in
Acquaintance Relationships’, in Violence in Intimate Relationships, ed., Gordon Russell, Spectrum Press,
1985; eighty-six percent of male undergraduates surveyed said they enjoyed ‘the conquest part of sex’,
in research done by Virginia Greendlinger and Donn Byrne, ‘Coercive Sexual Fantasies of College
Man as Predictors of Self-Reported Likelihood to Rape and Overt Sexual Aggression’, Journal of Sex
Research 23 (1987), 1–11; and a proportion of men ‘rated the faces of women displaying emotional
distress to be more sexually attractive than the faces showing pleasure’, Warshaw giving the proportion
as 30 percent (I Never Called it Rape, 97) and citing Alfred B. Heilbrun Jr. and Maura P. Loftus, ‘The
Role of Sadism and Peer Pressure in the Sexual Aggression of Male College Students’, Journal of Sex
Research 22 (1986), 320–32. However the 30 percent figure (cited by Warshaw, and by me in previous
versions of the present essay) is, it seems, a relativized one, and in absolute terms ‘only 12%’ ranked
distress as more sexually attractive than happiness. For this correction I am indebted to Alan Soble, ‘Bad
Apples: Feminist Politics and Feminist Scholarship’, Philosophy of the Social Sciences 29 (1999), 354–88
at 376. The studies drawn from Warshaw are discussed by Naomi Wolf, in The Beauty Myth, which is
where I first came across them.

46     
these hearers, it may be that pornography has all the authority of a
monopoly.⁴¹
FN:41
I have tried to show that pornography may subordinate, even if it falls
short of the illocutionary paradigm. We earlier distinguished two ways in
which actions may fall short. There may be vague boundaries in a situation
where we know that not all conditions are satisfied and wonder whether
what we have is close enough. There can be ignorance, where we do
not know whether all conditions are satisfied. It may be that pornography
falls short in both ways. We have the problem of ignorance: we are not
certain that pornography is authoritative, and hence not certain whether
it satisfies a crucial felicity condition for subordination. But supposing the
problem of ignorance were remedied and pornography was known to
satisfy this condition, the problem of vague boundaries might still remain.
We might know that pornography satisfied many, but not all, the usual
conditions for subordination. One typical feature of actions of ranking
and legitimating, for example, is that the speakers intend to rank and
legitimate. I have not argued that pornography satisfies that condition. But
if pornography conforms closely enough to the paradigm in other respects,
it may subordinate nonetheless.
The claim that pornography subordinates has good philosophical creden-
tials: it is not trickery, or ‘sleight of hand’; it is by no means ‘philosophically
indefensible’. Moreover, considerations about explanation, uptake, and the
felicity conditions for subordination give us reasons—though not conclus-
ive ones—for thinking that the claim may be true. Pornography’s effects
may be best explained by supposing that it has the illocutionary force
of subordination. An important group of pornography’s hearers—even if
not its intended hearers—take it to be subordination. And if the empir-
ical premise about pornography’s authority turns out to be true, then
pornography satisfies a crucial felicity condition for subordination.
What we have not yet considered, however, is whether speech that
subordinates should be restricted by law. As we noted at the outset, it
does not immediately follow from the claim that pornography subordinates
women that censorship is the best answer. What follows is that there is
a conflict between liberty and equality, just as the courts declared. One
⁴¹ For a good discussion of the effect of this monopoly on the fantasy lives of these hearers and
women as well, see Wolf, The Beauty Myth, esp. 162–8.

     47
possible response to this conflict might be to fight for equality in ways
compatible with respecting the liberty of pornographers. What I have said
leaves open that possibility. If pornography subordinates women, then it is
not in virtue of its content but of its authority that it does so. It need not
have that authority. There are imaginable circumstances where material just
like pornography in other respects would have no authority, and in such
circumstances such speech would not subordinate. MacKinnon’s claim is
that those circumstances are not ours, though one can hope that someday
they will be.
This way of understanding the subordination claim thus has implications
for policy. There may be ways of undermining pornography’s authority
that fall short of outright censorship, ways that would eventually relegate
pornographers to the status of mere bystanders to the game, whose speech
does not count. Perhaps pornographic speech could be fought with more
speech: the speech of education to counter pornography’s falsehoods,
where women tell the world what women are really like,⁴² or with the
FN:42
speech of competition to counter pornography’s monopoly, where women
themselves become authors of erotica that is arousing and explicit but does
not subordinate.⁴³
FN:43
All this may be possible if women can indeed fight speech with more
speech. But if pornography not only subordinates but silences women, it is
not easy to see how there can be any such fight. At this point the second
feminist claim demands our attention. Whether women can fight speech
with more speech depends on whether, and to what extent, women can
speak.
2. ‘Pornography Silences’
Silenced Speech Acts
If speech is action, then silence is failure to act. If pornography silences
women, then it prevents women from doing things with their words.
⁴² In the final chapter of The Question of Pornography, Edward Donnerstein advocates education to
counteract pornography’s harmful effects.
⁴³ This is advocated by the Women Against Censorship group, who, as amici curiae, protested against
the MacKinnon ordinance; see also Pleasure and Danger: Exploring Female Sexuality, ed., Carol Vance
(London: Routledge & Kegan Paul, 1984); and the collection Sex Exposed: Sexuality and the Pornography
Debate, ed., Lynne Segal and Mary MacIntosh (New Brunswick, N. J.: Rutgers University Press, 1993).

48     
Before considering whether pornography silences women, I will look at
how speech acts, in general, may be silenced, and then ask whether in
principle speech acts can silence.
The ability to perform speech acts can be a measure of political power.
Those who are able to use the utterance ‘Blacks are not permitted to vote’
with the illocutionary force of prohibition are, as we saw, the ones with
authority. Conversely, one mark of powerlessness is an inability to perform
speech acts that one might otherwise like to perform. Corresponding to
Austin’s three-fold distinction, we can distinguish three kinds of silence, for
there are three kinds of acts one may fail to perform. All three have their
political significance, I think, but my chief interest will be in the third.
At the first and most basic level, members of a powerless group may be
silent because they are intimidated, or because they believe that no one
will listen. They do not protest at all, because they think that protest is
futile. They do not vote at all, because they fear the guns. In such cases no
words are uttered at all. In Austin’s terms, speakers fail to perform even a
locutionary act.
Sometimes, however, people will speak, but what they say will fail to
achieve the effects that they intend: such speakers fail to perform their
intended perlocutionary act. Silencing of this second kind, which we can
call perlocutionary frustration, is a common enough fact of life: one argues, but
no one is persuaded; one invites, but nobody attends the party; one votes,
hoping to oust the government, but one is outnumbered. Such frustration
can have a political dimension when the effects achieved depend on the
speaker’s membership in a particular social class.
But there is a third kind of silencing that happens when one speaks, one
utters words, and fails not simply to achieve the effect one aims at, but fails
to perform the very action one intends. Here speech misfires, and the act is
unhappy in the way that Austin described: although the appropriate words
are uttered, with the appropriate intention, the speaker fails to perform
the intended illocutionary act. Silencing of this third kind we can call
illocutionary disablement, and it is that to which we now turn our attention.⁴⁴
FN:44
⁴⁴ Habermas too is interested in the connection between the social power of speakers and the
opportunities those speakers have to select and employ speech acts. But the constraints on speech
acts that interest him (e.g., economic, psychological) are different from the structural constraints that
interest me here. Insofar as illocutionary acts are identified by Habermas with communicative speech acts,
which are to be found in the utopian ‘ideal speech situation’, his version of speech-act theory would in

     49
In the previous section we considered how certain illocutions include
among their felicity conditions the requirement that the speaker have
authority in a relevant domain. Having authority can thus enable a speaker
to perform illocutionary acts not otherwise available. Illocutionary disable-
ment presents us with the other side of the same phenomenon: not having
authority in the relevant domain can disable a speaker from performing
illocutionary acts. That is why the ability to perform illocutionary acts
can be viewed as a measure of authority, a measure of political power.
Think again about the master and the slave. The master can order the
slave or advise him. The master can grant or deny the slave permission
to act in certain ways. The slave cannot grant or deny his master per-
mission. He cannot order his master, though he may entreat him. The
asymmetry of the power balance is reflected in the asymmetry of their
abilities to perform certain illocutionary acts. Attempts by the slave to
order or forbid will always be unhappy in Austin’s sense. Such acts are
unspeakable for the slave. Something has silenced his speech, not in the
sense of rendering his spoken words inaudible or written marks illegible,
but in the sense of depriving those sounds and marks of illocutionary force:
of preventing those utterances from counting as the actions they were
intended to be.
Example (1): Warning. This example is from Donald Davidson.
Imagine• this: the actor is acting a scene in which there is supposed to be a
• Q1
fire. . . . It is his role to imitate as persuasively as he can a man who is trying
to warn others of a fire. ‘Fire!’ he screams. And perhaps he adds, at the
behest of the author, ‘I mean it! Look at the smoke!’ etc. And now a real
fire breaks out, and the actor tries vainly to warn the real audience. ‘Fire!’
he screams. ‘I mean it! Look at the smoke!’ etc.⁴⁵
FN:45
fact make the analysis I give here impossible. See Jürgen Habermas, The Theory of Communicative Action
(Boston: Beacon Press, 1984), esp. vol. 1, 288–91. I am interested in precisely those illocutions that he
leaves aside, those that are made against a backdrop of social inequality and sometimes help to bring
that inequality about.
⁴⁵ Donald Davidson, ‘Communication and Convention’ in Inquiries into Truth and Interpretation
(Oxford: Oxford University Press, 1984), 269. Davidson does not, of course, take this example to
illustrate the power of convention, as I do. On the contrary, he infers from this example that convention
can do far less than it is commonly supposed to do; in particular, convention could never succeed in
making an utterance count as an assertion. I am not sure that I have any quarrel with the latter, but I
am interested here in a different question: whether conventions of a different kind, those of theatre,
can sometimes be sufficient to block an utterance’s having the intended illocutionary force.

50     
The actor says words that are appropriate for the action he wants to perform.
He gets the locutionary act exactly right. He intends to warn; if appropriate
intention is among warning’s felicity conditions, then that is a condition
he satisfies. But he does not warn. Uptake is not secured. Something about
the role he occupies prevents his utterance from counting as a warning.
Something, perhaps, about the conventions of theatre constrains the speech
acts he can make. The same words said with the same intentions by an
audience member would count as a warning. The actor, though, has been
silenced. The act of warning has been made unspeakable for him.
Example (2): Marriage. To say ‘I do’ is, given the right circumstances, to
marry, given that the felicity conditions of marriage are satisfied. Suppose
now that both parties intending to marry are male. They sincerely intend to
marry. The speaker uses the right locution. The priest is no mere actor. The
ceremony is performed by the book. The speaker satisfies all the felicity
conditions but one. Something about who he is, and who his partner
is, prevents him from satisfying one crucial felicity condition. The act of
marrying misfires. The felicity conditions of marriage are such that two
male participants cannot succeed. The act of marriage is not speakable for
homosexual couples. The power to marry, an important power available
to other citizens, is not available to them.
Example (3): Voting. A white South African makes marks on a piece of
paper in a polling booth. A black South African makes marks that look just
the same, and in similar conditions. Their intentions, we can imagine, are
just the same. But the former has succeeded in doing something significant.
He has voted. The latter has not. Something about who he is prevents him
from satisfying a crucial felicity condition. South African law prevents his
utterance from counting as a vote: voting is not speakable for him. He too
lacks an important political power available to other citizens.
Example (4): Divorce. To utter the words ‘mutallaqa, mutallaqa, mutallaqa’
(literally ‘divorced, divorced, divorced’) is to perform the illocutionary act
of divorce in a country where Islamic law is in force, provided certain
felicity conditions are met. Pronounced by a husband to his wife, it is an
act of divorce. Not so if it is pronounced by the wife to her husband.
No matter how hard she tries, a woman cannot succeed in divorcing her

     51
spouse by making that or any relevantly similar utterance. Divorce of that
kind is an act that is unspeakable for women.⁴⁶
FN:46
Silencing Speech Acts
We have just considered briefly some ways in which speech can be silenced:
simple silence, where nothing is said at all; perlocutionary frustration, where
a speaker says words, succeeds in performing the intended illocution, but
fails to achieve the intended effect; and the special silence of illocutionary
disablement, singled out and illustrated in the above examples. The next
task is to address the question of whether and how speech can actively
silence. This question has been addressed by many other writers, and there
are all kinds of subtle ways that speech can silence that I shall not consider.
But we will see that each of the three kinds of silence to which I drew
attention in the last section can be brought about by speech. This means
we can usefully distinguish three kinds of silencing speech, in line with
Austin’s categories. My chief interest is in the question of whether speech
can bring about the third silence of illocutionary disablement; and my way
in to this question will be to consider, by way of contrast, the two kinds of
silencing speech that differ.
Some speech is silencing speech by virtue of being an order or a threat.
Suppose a judge, faced with a heckling crowd, says, ‘Silence in the court’.
His illocution is an order, and it aims to achieve a certain effect, namely
silence in the court. That is the perlocutionary goal of the judge’s utterance,
as Austin would have put it. The ensuing silence of the would-be hecklers
is real, and it is simple silence: no sounds are made at all, not even
a locutionary act is performed. The same is true of the silence that is a
response to a threat. Some speech, however, silences not by preventing a
speaker from uttering words, but by preventing a speaker from achieving
their intended effect. The perlocutionary goal of the man who said ‘shoot
her’ might have been frustrated had the woman said ‘Don’t!’ and the
second man heeded her, and disobeyed the first man. Her action might
have silenced the first man by frustrating the effect he intended.
⁴⁶ As far as talak divorce is concerned, ‘a woman [has] no power of divorce’; see Honorable Moulvi
Mahomed Yusoof Khan Bahadur, Mahomedan Law, vol. 3 (Calcutta: Thacker, Spink & Co., 1898),
47. However, there are some qualifications. The husband may delegate the right of talaq to his wife;
see Keith Hodkinson, Muslim Family Law (London: Croom Helm, 1984), 222. Although talaq is the
commonest kind of divorce, there are other means of achieving divorce, some of which are available
to women in certain special circumstances (ibid., 219–306).

52     
Neither of these is the silence of illocutionary disablement. The woman
would not make the first man’s illocution unspeakable. He has already
spoken. She would not prevent him from ordering, but she prevents
him from being obeyed. Nor does the judge make the heckler’s intended
illocution literally unspeakable when he says ‘silence’. Someone courageous
enough or foolhardy enough could speak up anyway. He would then be
disobeying the judge, and may well be punished for it, but he would have
succeeded in performing his intended action nonetheless. Contrast this
with the previous examples. A black who makes marks on the ballot paper
does not disobediently vote; he does not vote. A homosexual who says ‘I do’
does not disobediently marry; he does not marry. These actions, unlike the
order, unlike the heckling, really have been made unspeakable.
Is it possible for speech to silence in this latter way? Is it possible to
silence someone, not by ordering or threatening them into simple silence,
not by frustrating their perlocutionary goals, but by making their speech
acts unspeakable? This is a question about the role speech may play in
disabling speakers, preventing them from satisfying the felicity conditions
for some illocutions they might want to perform. So far we have noted the
phenomenon of illocutionary disablement, but not yet asked how it comes
about. Austin offers little explicit guidance here, but there is an implicit
answer.
Felicity conditions, he says, are fixed by conventions. In examples (2)–(4)
they are formal laws spelling out the conditions that must be met for mar-
riage, voting, and divorce. Felicity conditions are not always (not even
usually) spelled out in laws though, and for promising, warning, urging,
protesting, and so forth, it will not always be clear just what the felicity
conditions are, what the conventions are, or whether there are really con-
ventions at all. Suppose we go with Austin and use ‘convention’ as a loose
label for whatever sets felicity conditions. How do these come into being?
When we consider some of Austin’s paradigm cases, we see that one way
that conventions are brought into being, one way that felicity conditions
are set, is indeed by means of other speech acts. These are ‘words that set con-
ditions’ in MacKinnon’s phrase.⁴⁷ In examples (2)–(4), laws are enacted that
FN:47
set felicity conditions for marriage, voting, and divorce. Some illocutionary
⁴⁷ MacKinnon, Feminism Unmodified, 228, my italics. She is referring here to the words of legal
enactments, but it is not quite—or rather, not just—felicity conditions she has in mind.

     53
acts fix the range and scope of other illocutionary acts. Some speech acts
build a space, as it were, for other speech acts, making it possible for some
people to marry, vote, and divorce. Some speech acts, in contrast, set limits
to that space, making it impossible for other people to marry, vote, divorce.
Some speech determines the kind of speech there can be. This shows that
it is indeed possible to silence someone, not just by ordering or threatening
them into simple silence, not just by frustrating their perlocutionary goals,
but by making their speech acts unspeakable. It is possible to use speech to
disable speakers, and possible to prevent them from satisfying the felicity
conditions for some illocutions they might want to perform.
Felicity conditions for illocutions in general are rarely spelled out in the
words of legal enactments. What then of the conventions that set conditions
for other illocutions, warning, protesting, urging, and the rest? If it is hard
to say just what the conditions are, it will be harder still to say what sets
them. But again, the answer may be that, by analogy with the legal cases,
they can be set by what is said, this time by informal practices of speech
and communication that gradually establish precedents and informal rules
about what counts as, for example, a warning. As in the legal examples,
felicity conditions can be set by words. The space for potential speech acts
can be built by speakers, as can the limits on that space, the constraints
responsible for the silence of illocutionary disablement. Let us at least take
this as our working hypothesis.
Pornography
We have seen how speech can be silenced, and we have seen how speech
can silence. MacKinnon’s claim is that pornographic speech, in particular,
silences the speech of women. It is time now to address that claim. But I
approach it indirectly, with some more examples.
Example (5): Refusal. Consider the utterance ‘no’. We all know how to do
things with this word. We use it, typically, to disagree, to refuse, or to
prohibit. In sexual contexts a woman sometimes uses it to refuse sex, to
prohibit further sexual advances. However, in sexual contexts something
odd happens. Sometimes a woman tries to use the ‘no’ locution to refuse
sex, and it does not work. It does not work for the twenty percent of
undergraduate women who report that they have been date raped. It does
not work for the twenty-five percent of final-year schoolgirls who report

54     
that they have been sexually forced.⁴⁸ Saying ‘no’ sometimes doesn’t work,
FN:48
but there are two ways in which it can fail to work. Sometimes the woman’s
hearer recognizes the action she performs: i.e., he recognizes that she is
refusing. Uptake is secured. In saying ‘no’, she really does refuse. By saying
‘no’, she intends to prevent her hearer from continuing his advances. But
the hearer goes ahead and forces sex on the woman. She prohibits, but
he fails to obey. She fails to achieve the goal of her refusal. Her refusal is
frustrated. ‘Perlocutionary frustration’ is too meek and academic a label for
what is simple rape.
Sometimes, though, there is the different phenomenon of illocutionary
disablement. Sometimes ‘no’, when spoken by a woman, does not count
as the act of refusal. The hearer fails to recognize the utterance as a
refusal; uptake is not secured. In saying ‘no’ she may well intend to refuse.
By saying ‘no’ she intends to prevent sex, but she is far from doing as
she intends. Since illocutionary force depends, in part, on uptake being
secured, the woman fails to refuse. She is in the position of the actor
in Davidson’s story, silenced as surely as the actor is silenced. He shouts
‘Fire!’ He performs the appropriate locutionary act. He means what he
says. He intends to warn. He tries to warn. But what he says misfires.
Something about him, something about the role he occupies, prevents him
from warning the audience. She says ‘no’. She performs the appropriate
locutionary act. She means what she says. She intends to refuse. She tries to
refuse. But what she says misfires. Something about her, something about
the role she occupies, prevents her from voicing refusal. Refusal—in that
context—has become unspeakable for her. In this case refusal is not simply
frustrated but disabled.
Example (6): Protest. The following appeared in a mail-order catalog
advertising ‘adult reading’, flanked by such titles as 426. Forbidden Sexual
Fantasies and 428. Orgy: an Erotic Experience.
⁴⁸ The first statistic comes from a study of students at the University of South Dakota. There are
comparable and worse figures for other universities: St. Cloud State University (twenty-nine percent
of the women students reported having been raped), Auburn University (twenty-five percent reported
having been raped at least once), and Brown University (sixteen percent reported having been date
raped), cited in Wolf, The Beauty Myth, 166, 167. The second statistic comes from J. Caputi, The Age
of Sex Crime (London: The Women’s Press, Ltd., 1987), 119.

     55
No. 427 ORDEAL: an autobiography by Linda Lovelace. With M. McGrady.
The star of Deep Throat tells the shocking story of her enslavement in
the pornographic underworld, a nightmarish ordeal of savage violence and
unspeakable perversion, of thrill seeking celebrities and sadistic criminals.
For Sale to Adults Over 21 Only.
Ordeal is a book that has been much cited by feminists who oppose
pornography.⁴⁹ The testimony of Linda Lovelace, or Linda Marchiano, to
FN:49
use her real name, features in evidence about pornography presented at
the 1983 Minneapolis hearings.⁵⁰ In the book Marchiano tells the story of
FN:50
her involvement with the making of the film Deep Throat, describing how
she was beaten, hypnotized, and tortured in order to perform her starring
role. Austin once commented that one can perform the illocutionary act
of protest a number of different ways: one can shout words in protest; one
can hurl a tomato in protest.⁵¹ One can also write a book in protest. Ordeal
FN:51
is an act of protest, a resounding denunciation of the industry in which
Marchiano says she was forced to perform. One can see why it was used
in the antipornography hearings. As a locutionary act Ordeal depicts the
subordination of a woman: it depicts a woman ‘in scenarios of degradation,
injury and torture’. But it does not invite fantasy and arousal. It invites
indignation. It does not ‘endorse the degradation’; it does not ‘celebrate,
promote, authorize and legitimate’ the sexual violence. It does not have
pornography’s illocutionary force.
Why then is Ordeal in a mail-order catalog for adult reading? The
answer is simple. It is there because it is pornography after all: here, in
this context, for these intended hearers, the uptake secured is bound to be
that of pornography. Marchiano says the words appropriate for an act of
protest. She uses the right locutions, words that graphically depict her own
subordination. She intends to protest. But her speech misfires. Something
about who she is, something about the role she occupies, prevents her from
satisfying protest’s felicity conditions, at least here. Though the threats and
gags are gone, there is silence of another kind. She too is in the plight of
Davidson’s actor. Warning was unspeakable for him. Protest is unspeakable
⁴⁹ Linda Lovelace, with Mike McGrady, Ordeal (Secaucus, N. J.: Citadel Press, 1980).
⁵⁰ See Hearings. ⁵¹ How to Do Things with Words, p. 118.

56     
for her.⁵² What he tries to say comes out as ‘merely acted’. What she tries
FN:52
to say comes out as pornography. Her protest has been disabled.
MacKinnon claims that pornography silences the speech of women. But
how? We noted that one way that speech can silence is in virtue of being
an order or a threat that induces simple silence in its hearers. That is the
first kind of silencing. MacKinnon cites cases where pornography itself is
used to threaten: children coerced into pornography are blackmailed into
silence by pornographers who threaten to show the pornography to their
parents and teachers. Pornographic depictions of their subordination are
used to threaten and thereby perpetuate that same subordination.⁵³ The
FN:53
silence here is simple: the children say nothing because they are afraid.
Pornography may silence in the second way: by preventing women, not
from speaking, but from achieving the effects they want to achieve. If, as
was argued above, pornography legitimates sexual violence, then it follows
that one of pornography’s effects may be to prevent a woman’s refusal
of sex from achieving its intended purpose. If pornography legitimates
rape, then it may silence refusal by frustrating its perlocutionary goal. For
many cases of rape, and probably all that reach the courts, match the first
pattern described in (5) above: the woman whose hearer recognized that
she refused, and persisted in spite of it, or perhaps because of it; the woman
whose hearer recognized the prohibition and disobeyed. If pornography
legitimates rape of this kind, it does so by sexualizing the use of force
in response to refusal that is recognized as refusal. Such pornography
eroticizes refusal itself, presenting the overpowering of a woman’s will as
exciting. Someone learning the rules of the sexual game from that kind
of pornography would recognize a woman’s refusal and disobey it. This
would be one way in which pornography frustrates the goals of women’s
speech.
But we have seen that there is the possibility of a different kind of
silence: the silence not just of frustration but of illocutionary disablement,
⁵² Ordeal has not misfired tout court; in many contexts it has succeeded as an illocutionary act
of protest. A similar sexually explicit depiction of subordination that aims to be protest rather than
pornography is Andrea Dworkin’s Mercy (London: Secker and Warburg, 1990), and it may provoke
similar paradoxes. Harriet Gilbert argues that Dworkin’s Mercy and Sade’s Justine have much in common,
and that the former could arguably count as pornography by the ordinance definition, showing, in her
view, the futility of attempts at legal definition (‘So Long as It’s Not Sex and Violence’, in Sex Exposed).
⁵³ MacKinnon, ‘Francis Biddle’s Sister’, 180, citing evidence from the Minneapolis hearings.

     57
manifested by the would-be warnings, marriages, votes, and divorces of
examples (1)–(4). And this silencing is manifested in examples (5) and (6):
the illocutionary disablement of the second rape victim, whose attempted
refusal is not even recognized as a refusal; the disablement of an author
whose attempted protest is not recognized as protest. These misfires betray
the presence of structural constraints on women’s speech. If Austin is right,
the explanation for the unhappiness here is that the felicity conditions for
refusal, for protest, are not being met. Something is robbing the speech of
its intended force. Whatever the conventions governing sexual interactions
may be, they can mean that intending to refuse, intending to protest, is not
enough. The rules fixing possible moves in the language games of sex are
such that saying ‘no’ can fail to count as making a refusal move, and telling
the story of one’s own subordination can fail to count as a move of protest.
These are illocutions whose felicity conditions, it seems, cannot be satisfied
by women, at least in these contexts.
What, if anything, has pornography to do with this third kind of
silence, this disablement of women’s speech that can make rape so hard
to prevent and hard to protest about? If the felicity conditions for such
illocutions constrain women in these contexts, we need to ask how those
conditions came into being. This question was asked about the conditions
that constrain illocutions of marriage, divorce, and the like, and the answer
was that they were set by the speech of the legislator. How then are
these other felicity conditions set? We know that felicity conditions for
illocutions in general can be set by other speech acts. MacKinnon’s claim
that pornography silences women can be interpreted in just this way. The
felicity conditions for women’s speech acts are set by the speech acts of pornography.
The words of the pornographer, like the words of the legislator, are ‘words
that set conditions’. They are words that constrain, that make certain
actions—refusal, protest—unspeakable for women in some contexts. This
is speech that determines the kind of speech there can be.
Let us see how this might apply to the second refusal in (5). Pornography
might legitimate rape, and thus silence refusal, by doing something other
than eroticizing refusal itself. It may simply leave no space for the refusal
move in its depictions of sex. In pornography of this kind there would be
all kinds of locutions the women depicted could use to make the consent
move. ‘Yes’ is one such locution. ‘No’ is just another. Here the refusal
move is not itself eroticized as in the pornography considered earlier: it

58     
is absent altogether. Consent is the only thing a woman can do with her
words in this game. Someone learning the rules of the game from this kind
of pornography might not even recognize an attempted refusal. ‘Coming
from her, I took it as consent’, he might say.⁵⁴ Refusal would be made
FN:54
unspeakable for a woman in that context.
How common is silencing of this kind and the rape that accompanies it?
It is hard to tell because so tiny a fraction of rapes are reported and these
would be least reported of all. But the study that found that one in four
final-year schoolgirls had been sexually forced also found that one in seven
boys of the same age reported having refused to take no for an answer.
One reading of this is that the boys in question recognized the refusal
and persisted in spite of it. Naomi Wolf’s comment suggests something
further: that
boys rape and girls get raped as a normal course of events. The boys may even be
unaware that what they are doing is wrong; violent sexual imagery may well have
raised a generation of young men who can rape women without even knowing it.⁵⁵
FN:55
If young men can rape without knowing it, then women sometimes fail to
secure uptake for their attempted refusals. This is the silence, not simply of
frustration, but of disablement.
Refusal, here, is a kind of prohibition, and it is an exercitive illocution,
in Austin’s terms. To satisfy its felicity conditions, the speaker must have
authority in a relevant domain. A government that prohibits has authority
over a large domain; a parent who prohibits has authority within the
smaller domain of the family; a patient who prohibits treatment has
authority within the local domain of his own life, his own body. A woman
who prohibits sexual advances also has authority within the local domain
of her own life, her own body. If she cannot prohibit, cannot refuse, the
authority is absent. If she is disabled from speaking refusal, it is a sign
⁵⁴ This paraphrases Austin’s example, in How to Do Things with Words, 76. These different motivations
for rape were described by an anonymous and articulate young rapist interviewed on the Australian
Broadcasting Commission’s documentary ‘Without Consent’ (1992), who said that rapes are committed
for the thrill of overpowering a woman’s will; the gang rapes he had taken part in for the sake of
mateship and male camaraderie were not rapes at all, on his view, despite the women’s lack of consent.
His idea seemed to be that it was only rape if the woman’s lack of consent was essential to the rapist’s
experience.
⁵⁵ Wolf, Beauty Myth, 167. ‘Refusing to take no for an answer’ might be ambiguous between failing
to recognize a woman’s refusal and failing to obey it. The study of Toronto schoolchildren is discussed
in Caputi, The Age of Sex Crime.

     59
that her body is, in a sense, not her own. If pornography prevents her
from refusing, then pornography destroys her authority as it twists her
words.
Part of the concern about whether pornography silences women is a
concern that pornography may prevent women from fighting speech with
more speech. In considering the feminist ordinance, the courts had to con-
sider whether pornographic speech ‘operates self-entrenchingly, disabling
its natural enemies—its victims—from countering it with effective speech
of their own’.⁵⁶ ‘Effective’ is ambiguous. One way your speech can be
FN:56
effective is when you can perform just the illocutionary acts you want
to perform: when you intend to warn, marry, or refuse, you really do
warn, marry, or refuse. Another way your speech can be effective is when
you perform just the perlocutionary acts you want to perform: you warn,
aiming to alert your hearers; you refuse, aiming to prevent unwanted sex;
and you fulfill your goals. Both kinds of effective speaking are important,
and both are needed to counter the speech of pornography.
The story about Ordeal in (5) is anecdotal, but it illustrates the way that
pornography can operate self-entrenchingly. Marchiano tries to protest,
but she only succeeds in making more pornography. The pornographers
know how to do things with her words: stories of ‘savage violence’ and
‘enslavement in the pornographic underworld’ are simply pornography to
readers for whom violence has been legitimated as sex. And there is ironic
truth in what the pornographers say: the violence is indeed ‘unspeakable’
for Marchiano, for they have made it so. If you are a woman using sexually
explicit speech, describing in some detail the savage sexual violence you
have suffered, and especially if you are already a famous pornography star,
what you say simply counts as pornography. It is an effective way to silence,
not simply by depriving speech of its intended illocutionary force, but by
replacing it with a force that is its antithesis.
The story is not, I think, an isolated anecdote. If MacKinnon is right,
it has something in common with a phenomenon that is widespread and
pernicious, a phenomenon that deserves more attention than I give it
here: namely, the analogous disablement encountered by women who
give testimony in court about rape and about sexual harassment, and
whose testimony, and descriptions of their experience, achieve the uptake
⁵⁶ See Michelman, ‘Conceptions of Democracy’, 299.

60     
appropriate to a description of normal sex.⁵⁷ If pornography legitimates
FN:57
violence as sex, then it can silence the intended actions of those who
want to testify about violence. This too is an aspect of its self-entrenching
character.
If pornography sets up the rules in the language games of sex—if
pornography is speech that determines the kind of speech there can
be—then it is exercitive speech in Austin’s sense, for it is in the class of
speech that confers and removes rights and powers. We saw that the claim
that pornography subordinates requires the premise that pornography is
authoritative speech, otherwise it could not rank and legitimate. We can
now see that the claim that pornography silences requires the same premise:
pornographic speech must be authoritative if it is to engender the silence
of illocutionary disablement.
The claim that pornography silences women, like the claim about
subordination, has been taken to be philosophically problematic. It is at
best ‘metaphorical’, and at worst a ‘dangerous confusion’. I have tried to
show that it is neither.
The claim that pornography silences is one that can be taken literally.
One might object that the silencing I have described is not literal silencing
because pornography does not—except in rare circumstances when it
is used to threaten—literally prevent women from uttering words.⁵⁸ It
FN:58
does not—in Austin’s terms—usually prevent women from performing
locutionary acts. But to think that way is to exhibit just the tendency of
which Austin complained, to be preoccupied with the content of what
is said, at the expense of the action performed. One way of being silent
is to make no noise. Another way of being silent—literally silent—is to
perform no speech act. On Austin’s view, locutions on their own are
nothing. Locutions are there to be used. Words are tools. Words are for
doing things with. There is little point in giving someone tools if they
cannot do things with them. And there is little point in allowing women
words if we cannot do things with them. That, at any rate, is not free speech.
The claim is not metaphor; it is not confusion either. Dworkin says that
it is a confusion to suppose that pornography silences women, because it
⁵⁷ It is estimated that only one in ten rapes are reported to the police and far fewer make it to court.
See MacKinnon, Feminism Unmodified, 110–15.
⁵⁸ Michelman says this in ‘Conceptions of Democracy’, 296 n. 13.

     61
is a confusion to ‘characterize certain ideas as silencing ideas’.⁵⁹ Dworkin
FN:59
misconstrues the argument. The feminist claim is not that ideas are silencing
ideas, but that acts can be silencing acts. That, as we have seen, is no
confusion. People do all kinds of thing with words: besides advising,
warning, and hurting one another, they also silence one another. They
silence by preventing speakers from doing things with words. They can
silence simply, by ordering or by threatening; they can silence by frustrating
a speaker’s perlocutionary acts; they can silence by disabling a speaker’s
illocutionary acts. We have seen that pornography can silence in all
three ways.
The silencing claim is not really about ideas at all, but about people and
what they do. It is not uncommon, in discussions about free speech, to
cast ideas as the heroes of the story. Free speech is a good thing, because
it provides a free marketplace for ideas where the best and truest ideas
can win out in the end.⁶⁰ To say that some speech silences is to describe
FN:60
a kind of shopping problem: some ideas that could be on the market are
not. Censorship may or may not be needed as a means of improving the
marketplace, a little local regulation to improve things overall. Perhaps
some ideas must be censored so that others can find space on the shelves.⁶¹
FN:61
Here again we have the tendency of which Austin complained: a focus
on content, while ignoring the speech act performed. The claim that
pornography silences women is not about ideas, but about people. Free
speech is a good thing because it enables people to act, enables people to do
things with words: argue, protest, question, answer. Speech that silences
is bad, not just because it restricts the ideas available on the shelves, but
because it constrains people’s actions. It is true that women have problems
developing and expressing new ideas about themselves, about sexuality,
about life, when pornography has a market monopoly. The marketplace
is certainly missing out on some valuable ideas. But that is not the point.
The point is that a woman’s liberty to speak the actions she wants to speak
has been curtailed: her liberty to protest against pornography and rape,
to refuse sex when she wants to, to argue about violence in court, or to
celebrate and promote new ways of thinking about sexuality. The point
⁵⁹ Dworkin, ‘Two Concepts’, 108.
⁶⁰ ‘The best test of truth is the power of the thought to get itself accepted in the competition of the
market’, said Justice Holmes in Abrams, quoted in Tribe, Constitutional Law, 686.
⁶¹ This is—roughly—Dworkin’s version of Frank Michelman’s argument, ‘Two Concepts’, 108.

62     
is that women cannot do things with words, even when we think we
know how.
3. Concluding Remarks
Our exploration has taken us through some rocky terrain. In the first section
we addressed the first feminist claim, that pornography subordinates, but
in order to do so, we had first to ask how speech can be action, and
then to ask whether, in principle, speech can subordinate. The answer was
that speech can subordinate when it has a certain verdictive and exercitive
force: when it unfairly ranks members of a social group as inferior, when
it legitimates discriminatory behavior towards them, and when it unjustly
deprives them of some important powers. The speech acts of pornography
may subordinate, it was argued, because they may fulfill the first and second
of these functions: they may rank women as sex objects, and legitimate
discriminatory behavior towards them. Whether pornography subordinates
depends on whether it is authoritative.
In the second section we addressed the second feminist claim, that
pornography silences; and in order to do so, we had first to ask how
speech acts can be silenced, and whether speech can silence. The answer
was that speech can indeed silence, and in a number of ways. The speech
acts of pornography may silence if they prevent women from speaking
certain actions, frustrating their intended perlocutionary acts and disabling
their intended illocutionary acts. I drew special attention to the speech acts
of refusal and protest. Whether pornography silences depends, again, on
whether it is authoritative. If pornography disables women’s speech, then
it deprives women of an important power. We thus come full circle, for
this is the third aspect of subordination, unattended to in Section 1. To
subordinate is to rank, to legitimate discrimination, to unfairly deprive of
a power; to silence is to deprive of a power. So there is a link between
the subordination claim and the silencing claim: one way of subordinating
is to silence, to deprive someone of certain liberties that are available to
others—the opportunity, for example, freely to speak.
The claims that pornography subordinates and silences women make
perfect sense; they are not sleight of hand, not philosophically indefensible,
not confused. Moreover, if pornographic speech is indeed authoritative, the

     63
claims may well be true. The premise about pornography’s authority is an
empirical one. If you think it is false, you will disagree with the conclusion
about the truth of the claims, but not, I hope, with the conclusion about
their coherence.
If pornography subordinates women, it presents a conflict between por-
nographers’ right to liberty and women’s right to equality. If pornography
silences women, it presents a conflict within liberty itself, between por-
nographers’ right to speak and women’s. If pornography silences women,
women will have difficulty fighting subordinating speech with speech of
their own. Does this give us reason for thinking that MacKinnon may
be right, not only in the two claims considered, but in her view that
pornography should be restricted by law? Perhaps. Or perhaps we need
independent argument to bridge the gap. Such an argument is beyond
my project here, but it may not be too hard to find. For an influential
liberal view has it that it is wrong for a government to allow private
citizens to violate the liberty of other citizens by preventing them from
saying what they wish. That liberal view has been eloquently expressed by
Ronald Dworkin, among others.⁶² If that is correct, it may be wrong to
FN:62
permit some speakers to silence others by preventing them from speaking
the actions they wish to speak. Women wish to be able to speak some
important actions: to be able to refuse, to protest, or to give testimony.
The speech of pornographers may prevent them from doing so. If it does,
then it may be wrong for a government to allow pornographers to speak.
⁶² Ibid., 108. Dworkin’s actual words are ‘violate the negative liberty’. He wants to say that if
pornography silences (which he doubts), it does so by depriving women of a positive liberty rather
than a negative liberty: it ‘denies them the right to be their own masters’, 106, and prevents them from
contributing to the process through which ideas battle for public favor. It should be evident from what
I have said that, on the contrary, pornography silences by depriving women of the negative liberty to
perform some important speech acts.

Queries in Chapter 
Q1. We have captured this as normal para with 6pt above and below
skip. Please confirm whether this is OK.

1993 Speech Acts And Unspeakable Acts

More Related Content

More from Amber Ford (20)

Recently uploaded (20)

1993 Speech Acts And Unspeakable Acts