April 19, 2011
The famous American feminist legal theorist Catherine MacKinnon argued that pornography is an act of subordination. In Only Words, she notes: “Social inequality is substantially created and enforced – that is, done – through words and images. . . Elevation and denigration are all accomplished through meaningful symbols and communicative acts in which saying it is doing it.” (p. 13)
It is this sort of insight that was crucially lacking in the recent hearing before the Grand Chamber in the case of Aksu v. Turkey. The hearings are online. I’ve blogged about this case before; here and here. Briefly, the case concerns a State-sponsored dictionary and book that contain derogatory stereotypes of Roma. The dictionary contains entries that define “Gypsy” as “(metaphorically) stingy” and the book contains passages that portray Roma as thieves, beggars and prostitutes.
The reason why we should care about Aksu is because words and images are not neutral and harmless vessels of expression, they do something. As MacKinnon says, words and images create and enforce social inequality. As might be expected, the representative of the Turkish state denied this completely. He referred to the entries in the dictionary as “sterile quotations from the language and literature” (around minute 53) and argued that the Court should dismiss the case because “the impugned expressions and entries have no impact either on the community or on the feelings and rights of the applicant as an individual” (around minute 1.54) The lawyer for the applicant drew the Court’s attention to the long history of discrimination of the Roma people, but did not emphasize and explain the harm that is being done to Roma through these stereotypes.
These derogatory comments and dictionary entries about Roma are not private speech acts; they are sponsored by the State. The State sponsors the conservation and distribution of these old and harmful ideas about Roma: the State does the stereotyping. The words of the State make the low social status of Roma seem right and inevitable. Aksu is therefore a case of subordination. Images and words subordinate.
Then there is the fundamental question of whether this case falls within the reach of the discrimination-prohibition, art 14 ECHR. During the hearings, the State argued that Aksu is not a discrimination case (around minute 1.01). Two of the main points that the State raises are that this case is not about equal treatment because nobody has been placed in a disadvantageous position compared to others, and neither the authors of the books nor the State had any intention to humiliate or debase the Roma. I’ve already blogged about the question of intent (here); arguing that intent is both legally and psychologically irrelevant when stereotyping is the central harm in need of redress. The argument about the comparator misses the mark likewise. In and of themselves, these racial stereotypes are harmful to Roma because they are stigmatizing. That harm stands alone and cannot be defined with an appeal to a comparator. For more on the comparator-heuristic, see this excellent article by Suzanne Goldberg.
Saying it is doing it. Not for nothing does MacKinnon describe subordination as “doing somebody else’s language” (p. 25). In this case about dictionaries, I cannot think of a sharper way of putting it.
‘No one can make you feel inferior without your consent.’
Eleanor Roosevelt, ‘This Is My Story,’ 1937
US diplomat & reformer (1884 – 1962)
Mackinnon is a famous or shall we say infamous proponent of far reaching censorship of free speech.
What troubles me is the syllogism that discriminatory speech is harmful because it stigmatizes a group. The problem with that approach to speech and discrimination arises when the mere assertion of stigmatizing a group is asserted without any quantifiable proof.
Accepting that stigmatizing speech itself without any individualized harm may give rise to a violation of human rights opens the door to all sorts of dubious claims against state sponsored or endorsed publications or venues.
For instance, a woman could plausibly argue that the availability of porn in a public library constitutes discrimination or that the state is failing to discharge its positive obligation by permitting an adult business to operate near a women’s rehabilitation centre.
Speech is not conduct and accepting plaintiff’s position would place the state in an impossible bind between Article 10 (freedom of expression) and Article 8 in conjunction with Article 14. It’s bad enough that the court has held that a state’s positive obligations may entail the duty to restrict private speech (the Van Hannover and Pfeifer cases).
If protection against discriminatory speech is added to the catalogue of human rights violations, almost any censorious justification for speech restrictions may now be successfully framed as a human rights claim.
[…] Strasbourg Observers blog has an interesting comment on the Grand Chamber hearing in the case of Aksu v. Turkey. – which concerns a State-sponsored […]
[…] Regarding discriminatory or prejudicial speech Alexandra has written several posts (here, here and here) on the specific European Court of Human Rights case of Aksu v. Turkey, arguing that this case […]
[…] First of all, the Committee directly goes to the heart of the issue: ethnic discrimination. The evictions and expulsions did not happen “by coincidence”, the persons concerned were exactly evicted and expelled because they were Roma. The ECtHR on its turn tends to avoid as much as possible getting into a discrimination analysis if it can decide a case on the basis of the linked substantive rights. In this respect, see for example Lourdes’ and Alexandra’s recent comments on the case of V.C. v. Slovakia. Interestingly, the Committee also takes into account the background of Roma stigmatization, especially because the French authorities had contributed to the creation of such a hostile climate. This can be relevant for the case of Aksu v. Turkey, which is currently pending before the Grand Chamber, in which the Court has to rule on the question whether stigmatization of Roma in two government-funded publications constitutes discrimination in the sense of Art. 14 ECHR. On this case, see Alexandra’s blogs here, here and here. […]
[…] It will be exciting to see the repercussions of this case. Will this have an effect on the upcoming Grand Chamber judgment in Aksu v. Turkey, for example? I’ll admit: I hope it will (see my previous post here). […]
[…] judgment in Aksu v. Turkey, for example? I’ll admit: I hope it will (see my previous post here). Share this post throughEmailPrintFacebookTwitterLike this:LikeBe the first to like this post. […]
[…] It will be exciting to see the repercussions of this case. Will this have an effect on the upcoming Grand Chamber judgment in Aksu v. Turkey, for example? I’ll admit: I hope it will (see my previous Strasbourg Observers post here). […]