On Silencing and Systematicity: The

Challenge of the Drowning Case

MARY KATE MCGOWAN, ILANA WALDER-BIESANZ,
MORVAREED REZAIAN AND CHLOE EMERSON

Silencing is a speech-related harm. We here focus on one particular account of silencing

offered by Jennifer Hornsby and Rae Langton. According to this account, silencing is sys-
tematically generated, illocutionary-communicative failure (of a very specific sort). We here
raise an apparent challenge to that account. In particular, we offer an examplethe drown-
ing casethat meets these conditions of silencing but does not intuitively seem to be an
instance of it. First, we explore several conditions one might add to the Hornsby-Langton
account, but we argue that none are satisfactory. Then, we further explore the systematicity
condition, which is insufficiently characterized in the current literature. Although we explore
several promising ways to further characterize this condition, we ultimately conclude that
more work needs to be done. Consequently, because this systematicity condition is under-
specified, the Hornsby-Langton account of silencing is incomplete.

I. INTRODUCTION

Silencing, defined here as systematic communicative interference, is a speech-related

harm. Moreover, if silencing is brought about by other speech, then speech itself can
interfere with and thus harm speech. If this happens, then there is a conflict within
the free speech right, just as Catharine MacKinnon has famously claimed (see
MacKinnon 1987; 1993). According to MacKinnon, (a particularly pernicious subset
of) pornography silences women and thereby violates womens right to free speech;
the free speech right of pornographers (to produce, distribute, and consume pornogra-
phy) is in direct conflict with the free speech rights of women.1 If this is correct,
then it seems that there is a free speech justification for the regulation of pornogra-
phy (see MacKinnon 1987; 1993). In light of this possibility, the phenomenon of
silencing has drawn widespread attention.
In this article, we will focus on one particular account of silencing.2 Jennifer
Hornsby and Rae Langton (henceforth H&L) were the first to offer such an account,

Hypatia vol. 31, no. 1 (Winter 2016) by Hypatia, Inc.

 Mary Kate McGowan, Ilana Walder-Biesanz, Morvareed Rezaian, Chloe Emerson 75

and their account is by far the most widely discussed (see Hornsby 1993; Langton
1993; and Hornsby and Langton 1998). For this reason, it is our focus. According to
H&L, silencing occurs when communicative failure is brought about in a very specific
manner.3 In this article, we argue that the H&L account is incomplete. First we offer
an examplethe drowning casethat appears to be a counterexample to the H&L
account: this case appears to meet the conditions of H&L silencing and yet does not
seem to be an instance of silencing. In other words, the H&L account appears to
generate the wrong result in the drowning case. We then explore a variety of ways to
amend the H&L account in order to avoid the result that the drowning case is an
instance of H&L silencing. In the process, we argue that one of the conditions of
H&L silencing (that is, the systematicity condition) is insufficiently specified. We
then explore three possible ways to further specify the systematicity condition of
H&L silencing. We conclude that two of these ways are promising, but more work
needs to be done.
The article proceeds as follows. In the following section, the H&L account of silenc-
ing is presented and the two (individually necessary and jointly sufficient) conditions
of H&L silencing are identified. In section III, the connection between H&L silencing
and the free speech right is articulated. There, we argue that H&L silencing is plausibly
regarded as a violation of the free speech right. Then, in section IV, we present the
drowning case, and we argue that it satisfies the two conditions of H&L silencing. In
section V, we explore some options for amending the H&L account in order to avoid
the result that the drowning case is an instance of H&L silencing. We show that none
of them work. Then, in section VI, we explore three ways to develop the systematicity
condition. We argue that although some provide a promising basis for future work, the
systematicity condition is yet to be adequately specified. Thus, without an adequate
characterization of this condition, the H&L account of silencing remains incomplete.

II. H&L ACCOUNT OF SILENCING

As mentioned above, MacKinnon claims that (some) pornography silences women

and therefore violates womens right to free speech.4 H&L begin their defense of the
coherence of MacKinnons claim by offering an account of silencing. According to
H&L, silencing is a type of communicative interference. It involves the hearers fail-
ure to recognize what sort of speech act the speaker intends to perform with an utter-
ance. The speakers illocutionary intention is the speakers intention regarding what
sort of act the utterance constitutes (for example, an assertion, order, question, and
so on), and uptake is Austins term for the hearers recognition of that intention. As
one can see, H&L silencing involves uptake failure. Suppose, for example, that Jen-
nifer intends to refuse Gregs sexual advances when she says no, but Greg fails to
recognize her intention to refuse. In this case, uptake fails because Greg fails to rec-
ognize Jennifers illocutionary intention to refuse.
It is important to note that, as the H&L account is currently understood, not
every instance of uptake failure constitutes silencing.5 Suppose, for example, that I
76 Hypatia

am eating dinner with my friend Lindsay and she says, Pass the salt, intending to
request (the salt). Suppose further that I fail to recognize her intention to request
(the salt), because I think she said pass the salt merely in order to allude to our
favorite in-joke. In this case, since I, the addressee, fail to recognize the speakers illo-
cutionary intention (to request), there is uptake failure. This is not, however, a case
of H&L silencing because the uptake failure is merely idiosyncratic; it was brought
about by my unique experience with a private in-joke with the speaker. It is highly
unlikely that anyone else would make a similar mistake under these circumstances. It
is not the case that systematic features of society contribute to this instance of uptake
failure.
In light of such idiosyncratic cases of uptake failure, H&L silencing is understood
to have a second necessary condition. In order for an instance of uptake failure to
constitute an instance of H&L silencing, that uptake failure must be brought about
in a systematic manner. Although it is agreed that isolated instances of uptake failure
are not instances of silencing, a positive account of this systematicity condition is
nevertheless outstanding. As a first pass, though, we shall say that an instance of
uptake failure meets this systematicity condition if it is nonidiosyncratic, it is brought
about by systematic features of society, and others would make a similar mistake
under similar circumstances.
To help to further motivate this condition, suppose that we live in an extremely
sexist society in which all men believe that all women are like parrots and that when
women speak, they are merely repeating phrases they have heard. Suppose further
that this belief is so widespread that all men regard any utterance made by any
woman as a mere mechanical reproduction utterly devoid of communicative inten-
tion. In such a world, no man would recognize Lindsays intention to request. When
uptake failure is brought about in an extremely systematic manner such as this, it
constitutes H&L silencing.
Of course, this is an extreme and (thankfully) fictional example. Although it is
sufficient to make the conceptual point, one might well prefer a more realistic exam-
ple. Without getting mired down in thorny issues of cross-cultural critique, we offer
the following as a potential real-world example of a cultural context in which H&L
silencing obtains: the practice of street harassment of women in Morocco.6 Although
street harassment is certainly not unique to Morocco, it is a cultural phenomenon
worthy of investigation and that has inspired an opposition movement (Hammadi
2015). Women on the streets of Morocco are routinely subject to verbal harassment
quite independent of race, class, dress, demeanor, and so on (Chebbak 2013). In fact,
according to some sources, men take as encouragement any action by a woman on
the streets of Morocco (other than looking down and avoiding eye contact) (Sadiqi
and Ennaji 2010). Thus, a woman who intends to communicate her objection to this
treatment will be understood instead as encouraging it. Since her intention to object
is not recognized, uptake fails. Since this uptake failure is anything but idiosyncratic,
it is therefore systematic and she is thus H&L silenced.
To further clarify the H&L account, it is helpful to consider the following three
cases of sexual refusal (the type of speech act upon which H&L focus). All three are
 Mary Kate McGowan, Ilana Walder-Biesanz, Morvareed Rezaian, Chloe Emerson 77

cases of rape and are therefore extremely problematic, but only the third case
involves uptake failure, a necessary condition of H&L silencing, and so only the third
case involves the distinct speech-related harm that concerns H&L. In all three cases,
a woman says no, sincerely intending to refuse sex. In the first case, the man recog-
nizes her sincere intention to refuse sex but rapes her anyway. Because the man rec-
ognizes the womans intention to refuse, there is no uptake failure and so this cannot
be an instance of H&L silencing. In the second case, the man recognizes the
womans illocutionary intention (to refuse) but fails to realize that she is refusing sin-
cerely and proceeds to rape her (West 2003). In this case, the man recognizes the
womans refusal but fails to respect it because he falsely believes it to be insincere.
Because this case does not involve uptake failure, it cannot be an instance of H&L
silencing either. In the third case, the man fails to recognize the womans intention
to refuse and proceeds to rape her. This failure to recognize the womans illocutionary
intention constitutes uptake failure. If this instance of uptake failure meets the sys-
tematicity condition, then this third case constitutes an instance of H&L silencing.
It is important to note that, on the standard way of understanding how pornogra-
phy brings silencing about, this systematicity condition appears to be met. Although
this connection (between pornography and silencing) is not our primary focus in this
article, we can nevertheless sketch what it is standardly alleged to be in the current
literature.7 The rough idea is that consuming certain types of pornography causes
consumers to form harmful beliefs about women and sexual norms. A consumer of
(certain types of) pornography might come to believe, for example, that a woman
who says no in response to sexual advances does not really intend to refuse sex.
Instead, she intends to excite by being coy. H&L suggest that pornography causes
silencing because these harmful beliefs then interfere with consumers recognition of
a womans intention to refuse sexual advances.8 If this is correct and if these
beliefs are widespread enough, then uptake failure in sexual contexts is anything but
idiosyncratic; pornography systematically causes uptake failure and thus causes H&L
silencing.

III. ON THE FREE SPEECH RIGHT

In order to understand why pornography might violate womens right to free speech,
we must have a clear understanding of what the right to free speech entails. The
commitment to free speech is typically defended in one of three ways, all of which
emphasize its communicative value. First, some theorists maintain that the best way
to access truth or knowledge is through the unrestricted exchange of ideas. The idea
is that in the long run, ideas that are better justified will be retained, but ideas that
cannot be justified will be discarded, thereby enabling society to ground its knowl-
edge base on better-justified and well-examined ideas (Mill 1978). Second, some con-
tend that free speech is vital to a properly functioning democracy where citizens
must be free to criticize the government and discuss matters of public concern (Meik-
lejohn 1960). A third justification is that speech must be free in order for people to
78 Hypatia

attain genuine autonomy, with their thought, choices, and expressions unhindered by
government regulation (Scanlon 1972).
Although the free speech right is closely related to the value of communication,
the free speech right does not guarantee the right to successful communication in
each and every instance. If ones communication fails either because of chance cir-
cumstances or the listeners denseness, ones free speech right has not been violated.
For example, if Joe attempts to tell Paul something, but Paul does not hear because
he is wearing headphones, Joes communicative failure does not constitute a violation
of Joes right to free speech. Similarly, if I attempt to warn my sister about a potential
beau by telling her, Well, Im sure his mother loves him, and she fails to recognize
my implied warning, my free speech right has not been violated simply because I was
unable, in this instance, to communicate what I intended.
The right to be free from systematic interference with ones ability to communi-
cate, however, does seem constitutive of the right to free speech. With an ingenious
thought experiment, Caroline West has argued that the free speech right requires
more than the mere uttering of meaningful sounds; it is the right to be free from sys-
tematic communicative interference (West 2003). Consider her example. A dictator
anxious to retain power implants a meaning-scrambling device into his subjects
heads. This device makes it the case that, to the hearer, words uttered by dissidents
in specific contexts mean something different from what was intendedfor instance,
overthrow in the phrase overthrow the dictator is taken to mean support. His sub-
jects ability to say or hear the phrase overthrow the dictator is not impaired, but
the dissidents ability to communicate that proposition is. This case is clearly a viola-
tion of dissidents free speech right, not because their ability to say anything is
restricted (it isnt), but because they are being systematically prevented from commu-
nicating their ideas. There is nothing idiosyncratic about the dissidents failure to
have their communicative intentions recognized; the uptake failure is rule-governed.
As one can see, the right to free speech requires more than the ability to say things;
it requires freedom from systematic communicative interference. As a result, we
henceforth understand the right to free speech as the right to be free from systematic
communicative interference.
With this understanding of the free speech right, we are now in a position to see
that H&L silencing is plausibly regarded as a violation of that right. First, H&L
silencing involves communicative failure exactly because it involves uptake failure.
To see this, consider the following example. Suppose that Tom promises to go to
Johns party but John fails to recognize Toms intention to promise. Even if there is
some technical sense in which Tom nevertheless promises, Tom fails to communicate
that promise to John exactly because John fails to recognize Toms intention to do so.
As one can see, uptake failure constitutes communicative failure. Second, since H&L
silencing requires uptake failure to be brought about in a systematic manner, H&L
silencing is systematic communicative interference. All three defenses of the free
speech rightaccessing truth, keeping democracy working, and ensuring autonomy
highlight the value of communication and underscore the importance of keeping it
free from systematic interference. Thus, because H&L silencing is systematic
 Mary Kate McGowan, Ilana Walder-Biesanz, Morvareed Rezaian, Chloe Emerson 79

communicative interference, it is at least plausible to regard H&L silencing as a vio-

lation of the free speech right.

IV. THE DROWNING CASE

We turn now to our apparent counterexample to the H&L account. Suppose that
Sally is drowning and Peter, who is walking by, notices this. When Peter attempts to
save her, Sally says no with the intention of refusing Peters assistance. Peter fails
to recognize her intention to refuse, however, because Peter believes that drowning
people want to be saved, and so he interprets Sallys utterance of no as an expres-
sion of denial; he believes that she is expressing the belief that drowning is just too
awful to actually be happening to her. Call this the drowning case.
The drowning case (appears to) satisfy both conditions of H&L silencing. First, it
involves uptake failure, since Peter fails to recognize Sallys illocutionary intention to
refuse his help. Second, this uptake failure satisfies the systematicity condition: it is
not due to Peters idiosyncrasies; rather, a systematic feature of society brings it about,
and others would make the same interpretive mistake under the circumstances.
This result seems wrong. It seems just plain wrong to say that Sally is silenced.
Moreover, there is just as much reason to regard the drowning case as a free speech
violation as there is to regard H&Ls sexual refusal case as one. Each involves com-
municative failure because of uptake failure that is brought about in a nonidiosyn-
cratic and thus systematic manner. But this too appears to be the wrong result. As
one can see, this drowning case raises the following challenge to the H&L account:
either the account must be amended to avoid the result that the drowning case is an
instance of H&L silencing and thus a violation of the right to free speech, or it must
be argued that these conclusions are, in the end and despite initial appearances, cor-
rect and plausible. In what follows, we explore the former option.

V. OPTION 1: ADD A THIRD CONDITION

As we have just seen, the drowning case appears to meet both conditions of H&L
silencing. Since this result seems wrong, perhaps there ought to be a third condition
required for H&L silencing. Maybe we overlooked something important about the
(silencing) sexual refusal case that is not present in the drowning case.

(FALSE) RECOGNITION-INTERFERING BELIEFS

As discussed in section II, we are here focusing on the standard way of understanding
the connection between pornography and silencing, where speech causes silencing by
causing beliefs that interfere with the hearers recognition of the speakers illocution-
ary intention. Perhaps some feature of the relevant recognition-interfering beliefs is
80 Hypatia

what marks the pertinent difference between the two cases. To this end, we turn
now to a consideration of the relevant recognition-interfering beliefs.
In the silencing sexual refusal case, many different beliefs could cause an addres-
see to fail to recognize a speakers intention to refuse. To focus discussion, however,
we shall zero in on just one. Perhaps the addressee believes that, in sexual con-
texts, no means yes.9 As a result of consuming pornography, in which such a
meaning convention is operative, the addressee comes to falsely believe that this
meaning convention is operative in real-life sexual contexts. This belief would
likely cause the addressee to fail to recognize the speakers intention to refuse in
sexual contexts. After all, if the addressee believes that the womans utterance of
no actually means yes, then he may well fail to recognize her intention to refuse.
If the false belief that this meaning convention is operative in real-life sexual situa-
tions is widespread enough among pornography consumers, then the systematicity
condition would be met. This is because the interpretive mistake made by the
pornography consumers would not be idiosyncratic; rather, a systematic feature of
society would bring it about. The uptake failure in this case is brought about by
widespread beliefs perpetuated by the pernicious subset of pornography. Further-
more, many members of the relevant audience group (that is, pornography con-
sumers and others influenced by them) would make the same interpretive mistake.
Because both conditions of H&L silencing are satisfied, this would constitute an
instance of H&L silencing.
Let us now consider the recognition-interfering belief(s) operative in the drowning
case. It seems easier (and less controversial) to identify the belief that prevents
uptake in this case: namely, the belief that drowning people want to be saved. Since
Peter holds this belief, he assumes that Sally wants to be saved and thus interprets
her no utterance as an expression of denial as opposed to a refusal. Consequently,
Peter fails to recognize Sallys actual illocutionary intention to refuse help.
Of course, there are important differences between the recognition-interfering
beliefs identified above in the sexual refusal case and the recognition-interfering
belief identified in the drowning case. Perhaps these differences afford grounds for dis-
tinguishing between the two cases in a way that alleviates the challenge raised to the
H&L account.
One striking difference is the truth-value of the recognition-interfering beliefs. In
the sexual refusal case, there is a false belief that no means yes. The recognition-in-
terfering belief in the drowning case, by contrast, is not false. As it happens, most
drowning people in fact do want to be saved. Perhaps, in light of this, the H&L
account of silencing might be amended so that silencing occurs when the recogni-
tion failure in question is brought about both systematically and by a belief that is
false.
The addition of this third falsity condition to the H&L account will not do;
the reason for this is clear: it violates the neutrality principles central to a princi-
ple of a free speech. To see this, consider the following. If the falsity of the belief
is what makes the sexual refusal case count as H&L silencing and thus as a free
speech violation, then the falsity of the belief causing the silencing is (partially)
 Mary Kate McGowan, Ilana Walder-Biesanz, Morvareed Rezaian, Chloe Emerson 81

constitutive of it being a free speech violation. However, it cannot be the case

that in determining whether the free speech right has been violated, the govern-
ment must first decide if some proposition is true or false. When it comes to free
speech considerations, the government should not be in the business of making
content-based distinctions, and it certainly should not be in the business of decid-
ing what is true and what is false!10
One might object that the neutrality principle applies to the (grounds for regulat-
ing some) category of speech (in this case pornography) and not to the beliefs caused
by that category of speech. If, however, the falsity of beliefs is a condition of silenc-
ing and silencing constitutes a free-speech violation, then courts would need to be in
the business of judging the truth-value of beliefs caused in order to determine which
categories of speech actually silence. This would be required, since silencing is a
harm, and courts must assess associated harms when determining whether a particular
category of speech should be regulated. As one can see, the falsity of a recognition-
interfering belief is not a promising third condition for silencing.

CANDIDATE CATEGORY OF SPEECH FOR REGULATION

There are, of course, other important differences between the two cases. In particular,
it seems that, in the sexual refusal case, but not in the drowning case, there is an
identifiable category of speech (that is, the pernicious subset of pornography) that is
a candidate for regulation. Perhaps this difference between the cases affords a third
condition of silencing.
To evaluate this possibility, however, it is prudent to be mindful of what is alleged
to be happening between pornography and silencing. According to this line of think-
ing, the consumption of pornography causes beliefs in consumers that then interfere
with the recognition of womens intention to refuse. In this way, pornography causes
the distinct speech-related harm of silencing, and this affords some reason to regulate
pornography. Silencing is a harm, and the type of speech alleged to bring it about
(that is, pornography) is the candidate for regulation. Consider now the drowning
case. In this case, although we have identified a particular belief that seems to cause
the silencing, we have not identified (nor do we think we can) some particular cate-
gory of speech responsible for causing that belief (and thus for causing the silencing).
Thus, it seems that the drowning case does not afford any basis for an argument for
the regulation of speech. Surely this is one very important difference between the
two cases.
Although this difference obtains, it cannot provide a plausible third condition of
silencing. After all, whether the drowning case is an instance of silencing is an
entirely separate matter from whether there is an identifiable category of speech
responsible for causing the silencing in this case. Thus, although the drowning case
does not afford considerations in favor of regulating (the) speech (that causes it), this
affords no reason whatsoever to deny that the drowning case is an instance of silenc-
ing.
82 Hypatia

HARM

There is another salient and important difference between the two cases: it seems
that the sexual refusal case involves considerably more harm than the drowning case.
After all, a widespread belief that no means yes is significantly more harmful than a
widespread belief that drowning people want to be saved. Also, the harm of being
raped is more widespread than the harm (if such there be) of being saved against
ones will. Moreover, when it comes to regulating speech (indeed, when it comes to
any governmental interference with individual liberty) the prevention of harm is the
only legitimate consideration (Mill 1978). In light of this, one might be tempted to
think that this difference in harmfulness constitutes the sought-after third condition.
Although this is an important difference between the cases, it does not afford a
plausible third condition of silencing. That there are more associated harms in the
silencing sexual refusal case bolsters any argument for the regulation of the speech
that causes it, but it is no reason to deny that the drowning case involves the distinct
speech-related harm of silencing.
As one can see, then, although there are important differences between the two
cases, none of the differences considered here afford a defensible third condition to
H&L silencing. Of course, we have here considered only some candidates for amend-
ing the H&L account; we have by no means proven that no such third condition
could be identified. That said, we have shown that the most salient differences
between the two cases do not provide a plausible candidate for that third condition.
By so doing, we have thereby shown that there is no obvious quick fix third condi-
tion to be added to the H&L account that will avoid the apparently unintuitive
result that the drowning case is an instance of it.

VI. OPTION 2: DEVELOPING SYSTEMATICITY

We shall now try a different approach. Instead of adding a third condition to the
H&L account of silencing (in order to avoid the result that the drowning case is an
instance of it), we will instead try to develop the systematicity condition of the H&L
account. Perhaps a further specification of this condition will afford the means for
distinguishing between the drowning case and genuine instances of silencing. Perhaps
the drowning case is not an instance of H&L silencing because, once the systematic-
ity condition is properly understood, the drowning case fails to satisfy it. We consider
three options. The first is rejected but the other two hold promise.

SPEAKER-BASED SYSTEMATICITY

In this vein, one might argue that the drowning case is not systematic exactly
because the interpretive situation is idiosyncratic.11 On this view, it is not Peters inter-
pretation that is idiosyncratic but Sallys intentions. Although using the word no in
 Mary Kate McGowan, Ilana Walder-Biesanz, Morvareed Rezaian, Chloe Emerson 83

order to refuse is not idiosyncratic, Sallys intention to refuse rescue while she is
drowning certainly is. After all, the vast majority of people want to be saved when
drowning. Thus far in the silencing literature, systematicity has been understood as a
condition on the audience. On the standard account, pornography consumption
causes beliefs in (some) consumers that prevent them from correctly interpreting
(some) womens sexual refusals. Hornsby stresses the role of the audience in successful
communication. On her view, reciprocity is a precondition for successful communica-
tion (Hornsby 1993). On this standard account, the communicative interference gen-
erated by silencing works via interpretation-interfering beliefs in the audience.
Perhaps the drowning case shows that systematicity ought to apply to the speaker
as well. On this line of response, the drowning case fails to be a systematic case of
uptake failure (and hence an instance of H&L silencing) because Peters interpretive
mistake is in fact due to an idiosyncratic feature of his situation (namely Sallys pecu-
liar desire not to be saved).
Although very interesting, this line of response is unacceptable. To see this, con-
sider the following case. Suppose we live in a profoundly patriarchal world in which
the vast majority of women do, in fact, want sex as often as possible and with any
man who shows any sexual interest. (Yes, this is an extreme and fictional example,
but it suffices to make the conceptual point.) Most women in this patriarchal world
who say no to a sexual advance are merely teasing and do not intend the utterance
as a refusal. In this profoundly patriarchal world, then, sexual refusal is idiosyncratic
a woman who says no intending to refuse sex is as unusual as someone who
attempts to refuse rescue when drowning. If we accept that the speakers idiosyncrasy
precludes systematicity and therefore H&L silencing, we must conclude that, in this
patriarchal world, a woman who says no intending to refuse sex but who fails to
communicate her illocutionary intention is not thereby silenced.
This result seems plainly wrong. To see this, consider again the practice of street
harassment in Morocco. Suppose that most women in this context do not object (be-
cause it has been their experience that attempting to do so only makes the harass-
ment worse). In a social context where most women do not object, objecting is
idiosyncratic. If we maintain that this idiosyncratic feature of the speaker precludes
systematicity and thus H&L silencing, the women who object in this context (and
whose objection is not recognized) are not silenced either. This is clearly wrong.
After all, it makes silencing turn on the number of speakers who would have the
same illocutionary intentions under similar circumstances. In effect, it denies silenc-
ing to precisely those minorities who are most likely to experience it! As one can
see, then, this particular way of arguing that the drowning case is not an instance of
H&L silencing simply will not do.

AUDIENCE COMPETENCE AND RULE-FOLLOWING

Unfortunately, the existing literature offers very little by way of an account of system-
aticity, but we did find inspiration in Ishani Maitras work on audience competence.
84 Hypatia

From this, we shall develop an alternative conception of systematicity. First, some

background is in order.
Maitra offers an account of silencing that is highly related to, but nevertheless dis-
tinct from, the H&L account (Maitra 2009). Maitras account focuses on the hearers
failure to recognize the speakers communicative intention. By focusing on the commu-
nicative intention (as opposed to the illocutionary intention), Maitra offers a Gricean
as opposed to an Austinian account. She is interested in the same kind of recognition
failure, but she focuses on communicative, as opposed to illocutionary, failure. There
is another terminological difference. For Maitra, all cases in which a hearer fails to
recognize a speakers communicative intention are cases of silencing, but, on her
view, only some instances of silencing are problematic. For H&L, the term silencing is
reserved for the problematic cases. In the remainder of this article, we follow H&L
and reserve the term silencing for cases that are brought about systematically. We also
use the expression interpretive mistake to cover the hearers failure to recognize the
speakers illocutionary intention and/or communicative intention. This allows us to
switch seamlessly between H&L and Maitras account.
Maitra does not offer an account of systematicity per se but she does develop an
account of audience competence that we shall argue is highly suggestive. In her Si-
lence and Responsibility, she explores the conditions under which a third party can
be held responsible for the interpretive mistakes involved in silencing (Maitra 2004).
Her answer in short is that the third party can be (at least partially) responsible for
the silencing if the hearer is behaving competently qua audience member and the
third party is causally responsible for the audience member coming to rely on the
conversational (interpretive) rules that the audience member relies on. (Audience
competence on Maitras view amounts to following context-specific conversational
interpretive rules.)
Before exploring audience competence and how it might suggest characteristics of
systematicity, let us first see how context-specific rules apply in cases of silencing.
Consider first the case of a dinner guest who has had her fill and declines her hosts
offer of more food.12 The guest intends to sincerely and explicitly refuse the food
when she says, Oh! No, thank you. I couldnt possibly eat another morsel! but her
host falsely believes that she is merely being polite. Because the host fails to recog-
nize her guests intention to communicate that she does not want any more food, the
guest is silenced. In this case, the host is relying on what Maitra calls the Dinner
Party Rule: At dinner parties, do regard guests as attempting not to appear too
greedy, in particular, as trying to moderate their intake of food and drink offered by
the host (Maitra 2004, 199; her emphasis). It is precisely because the host relies on
this rule that she fails to recognize her guests communicative intention and thus
silences her. Note that this rule is prescriptive. It tells one how one ought to linguis-
tically interpret guests at dinner parries. This particular rule is both role-based and
content-based. It is role-based because it applies to the guest in her role as dinner
party guest, and it is content-based because it interferes only with her attempts to
decline more food or drink. According to Maitra, the host is a competent audience
member in virtue of relying on an appropriate conversational-interpretive rule for
 Mary Kate McGowan, Ilana Walder-Biesanz, Morvareed Rezaian, Chloe Emerson 85

that context. As Maitra stresses, even competent audience members can make inter-
pretive mistakes and thereby silence.
Consider another case from Donald Davidson (Davidson 1984).13 An actor in a
play is warning her fellow characters of a fire when a real fire breaks out in the the-
ater. As she screams Fire! to the audience, fully intending to warn the audience
about the real fire at the back of the theater, the audience members think that she is
just acting and fail to recognize her communicative intention to warn them of the
real fire. Because the actresss communicative intention is not recognized, she is
silenced. According to Maitra, audience members in this case rely on what she calls
the Theatre Rule: When an actor standing on stage says something during a theatri-
cal performance, do not regard her words as evidence of her intention to communi-
cate something on her own behalf (Maitra 2004, 196; her emphasis). Because
audience members rely on this rule, they fail to recognize the actresss communicative
intention to warn them, and she is thereby silenced. This rule is also prescriptive, but
unlike the Dinner Party Rule, the Theatre Rule is purely role-based. It applies to the
actress in her capacity as actress, and it affects any claim she might try to make when
on stage during a production. It thus does not depend on the content of her claim.
Since it is appropriate for audience members to rely on this rule in this context, they
are competent despite their interpretive error in this case.
As one can see, silencing can occur even when the audience member making the
interpretive mistake is competent. According to Maitra, an audience member is com-
petent if that audience member abides by rules that are in effect in that context, and
it is reasonable for that audience member to abide by those rules in that context.
Whether it is reasonable to abide by a rule in a particular context depends on fea-
tures of the context and on further features of the rule in question.14 The details of
this do not concern us. We are interested primarily in the nature of systematicity and
in how this notion of audience competence may inform it.
Perhaps silencing is systematic if it is brought about by adherence to these sorts of
context-specific conversational-interpretive rules. On this hypothesis, silencing is sys-
tematic exactly because it is rule-governed; it is brought about by following these pre-
scriptive rules. When a speaker is following a script and is interpreted accordingly, a
speaker may be silenced by a competent audience member if the speaker departs from
that script. Thus, when the actress stops acting and tries to warn, and when the
polite dinner guest stops just being polite and tries to sincerely refuse another help-
ing, speakers depart from the script, and the otherwise appropriate context-specific
conversational-interpretive rules at play lead to interpretive mistakes that silence.
Consider first how this hypothesis about systematicity might apply to the sexual
refusal case. What might the relevant context-specific conversational-interpretive rule
be? Perhaps there is a rule in place such that no means yes in sexual contexts.15 Per-
haps there is a script according to which women who intend to consent say no.
Perhaps there is a rule in place such that women should be interpreted as coy and
intending to excite. Perhaps there is a script according to which willing women pre-
tend to be unwilling. If there are such rules and such scripts in place, then hearers
who follow these rules and take themselves to be participating in such scripts would
86 Hypatia

make the very sorts of interpretive mistakes that silence (on either the H&L account
or Maitras). It thus seems that being rule-governed is a plausible candidate specifica-
tion of systematicity.
There is a difference, however, between a certain rule being in place and a false
belief that a certain rule is in place. Perhaps such context-specific conversational-in-
terpretive rules are in place in sexual contexts, and perhaps pornography (or a certain
pernicious subset of it) is responsible for such rules being in place. Perhaps instead,
though, there is a widespread but false belief that such rules are in place in sexual
contexts, and pornography is responsible for this unfortunate fact.16 Either way, we
would treat the resulting interpretive mistakes as rule-governed in the proposed sense.
Behavior brought about by following a rule that is not in effect but is nevertheless
widely believed to be in effect counts as rule-governed for us. Consequently, we can
treat the sexual refusal case as rule-governed even if the silencing results from false
beliefs about the interpretive norms governing sexual contexts.
What about the drowning case? Is there a context-specific conversational-interpre-
tive rule in effect (or believed to be in effect) in such a context? Perhaps there is a rule
to the effect that No is an expression of denial when a dying person says it. Or, per-
haps there is a rule to the effect that dying people should be interpreted as wanting to
be saved. There may be such rules, and it is an empirical matter whether there are, but
we doubt it. Drowning just doesnt seem to be the sort of case where speakers are fol-
lowing a social script and are interpreted accordingly. Unlike the other cases, there is
no social convention guiding how to behave when drowning. Consequently, it seems
that there arent context-specific conversational-interpretive rules at play. The inter-
pretive mistake in the drowning case appears to result (merely) from a false but reason-
able belief that a dying person wants to be saved. The drowning case, it seems, is not
rule-governed and thus not systematic in the right way. If this is correct, then we have
a potential specification of systematicity that will generate the result that the sexual
refusal case is systematic but the drowning case is not. The sexual refusal case involves
a rule-following interpretive mistake but the drowning case does not.
Although interesting, this solution is far from ideal. First, it cannot do the remaining
discriminatory work. Since both the theater case and the dinner party guest case are
instances of rule-following and since they do not seem to be instances of silencing (or at
least not the problematic kind of silencing), an additional condition would be required
to distinguish these cases from the H&L sexual refusal case. Moreover, we would also
need an explanation for why being rule-governed is so crucial to the distinct speech-re-
lated harm of silencing. For these reasons, and although this potential specification of
systematicity warrants further investigation, we turn now to yet another possibility.

GROUP MEMBERSHIP AND OPPRESSION

Here is one more possible specification of systematicity. Perhaps silencing is system-

atic in the sense that oppression is systematic: it applies to members of socially
important groups in virtue of their membership in those groups, where the groups in
 Mary Kate McGowan, Ilana Walder-Biesanz, Morvareed Rezaian, Chloe Emerson 87

question are unjustly socially disadvantaged. If this is correct, then silencing is

systematic only if it contributes to the systematicity of oppressive social structures.17
How might this conception of systematicity apply to the two cases? Notice that in
the sexual refusal case, it is women who are silenced, not men, and women are a
social group. Furthermore, women are a social group marked for oppression. In this
way, the silencing in the sexual refusal case contributes to the systematic nature of
gender oppression. In the drowning case, by contrast, it is drowning people who are
silenced, but drowning people are not a social group and hence are not a social group
marked for oppression. Perhaps only interpretive mistakes that communicatively
impair members of oppressed social groups count as systematic in the relevant sense
and thus as silencing.
This particular specification of systematicity also requires more work. There are
several questions outstanding. Why should oppression be built into the definition of
silencing? Why should an antecedent structural social injustice matter to which inter-
pretive mistakes count as silencing? Although we readily acknowledge that more
work needs to be done, we nevertheless regard this as a potentially fruitful avenue for
further investigation.
We have here identified three different notions of systematicity that the sexual
refusal case satisfies but the drowning case does not. The first was rejected, the sec-
ond would not exclude either the theater case or the dinner party guest case, and the
third is under-developed but intriguing. As we have seen, there are some ways in
which the drowning case is systematic. After all, the interpretive mistake in that case
is caused by a widely held, nonidiosyncratic belief, and most listeners in that situa-
tion would make the same interpretive mistake. That said, these might not be the
right kind(s) of systematicity. Although we have here attempted to identify the right
kind of systematicity, considerable further work is needed.
In this article, we have raised an apparent challenge to the H&L account of
silencing: the drowning case. Sallys attempt to refuse rescue appears to meet all the
conditions of H&L silencing, but it does not seem right to say that Sally is silenced.
We have here explored several ways of amending the H&L account, the most
promising of which concerns the systematicity condition. Although this condition is
important for distinguishing silencing from idiosyncratic cases of uptake failure, the
systematicity condition is nevertheless radically under-specified in the literature. We
have begun to address this shortcoming. Although further work is required, we have
here identified some promising ways to further specify this systematicity condition.
We now invite other scholars to bring the discussion forward.

NOTES

We wish to thank the anonymous referees for helpful comments.

1. MacKinnon defines pornography for her particular legal purposes (MacKinnon
and Dworkin 1997, 444). We are here interested in that subset of pornography that both
depicts and eroticizes a gendered hierarchy.
88 Hypatia

2. Other (speech act type) accounts include Wieland 2007; Maitra 2009; McGowan
2009; Wyatt 2009; and McGowan 2014.
3. Initially, H&L focused on illocutionary failure (and were committed to the claim
that a silenced speaker fails to refuse), but subsequent focus is on communicative failure.
Criticism of the former claim includes Jacobson 1995; Bird 2002. Defenses of H&L
include Hornsby and Langton 1998; McGowan et al. 2011; and Mikkola 2011.
4. Again, pornography is here being used in a special technical sense. See
footnote 1.
5. Maitra 2009 considers all cases of uptake failure silencing, but concerns herself
only with cases that meet additional criteria. See section VI, second part.
6. Scholarship on the phenomenon is relatively rare. For a description of the phe-
nomenon and how Moroccan women are affected by it, see Monqid 2012. For an account
of street harassment in Morocco and the social norms regulating womens responses, see
Newcomb 2008.
7. There are other ways that pornography may bring about silencing. It could consti-
tute silencing (MacKinnon 1987; Langton 1993; MacKinnon 1993) or cause it via condi-
tioning consumers desires (MacKinnon 1987; 1993; Scoccia 1996). In the interest of
brevity, though, we focus on the standard causal understanding.
8. Actually, Langton 1993 contends that pornography constitutes or enacts silencing.
Hornsby 1993 stresses the causal claim.
9. Nellie Wieland discusses this no means yes meaning convention in Wieland
2007. She wrongly takes H&L to be committed to the view that pornography enacts such
a meaning convention outside of pornographic contexts. In order to cause H&L silencing,
though, it is enough for (some) consumers to come to falsely believe that such a meaning
convention is operative. For a criticism of Wielands arguments, see Maitra and McGowan
2010.
10. Certain content-based distinctions are permissible. For a helpful discussion of the
differences between content and viewpoint neutrality, see Schauer 1982. In the case of
defamation and perjury, however, courts must determine the truth-value of what is said
(which is quite different from determining the truth-value of recognition-interfering
beliefs).
11. We thank an anonymous referee for raising this objection.
12. Maitra 2004, 19899 discusses this case, as do Bird 2002 and McGowan et al.
2011.
13. This case is widely discussed in the silencing literature introduced by Langton
1993.
14. These features include robustness, scope, accessibility, and arbitrariness (Maitra
2004).
15. For a discussion of an account of silencing involving such meaning conventions,
see Wieland 2007.
16. Wieland 2007 argues that it is relatively easy (for pornography) to enact meaning
conventions. Maitra and McGowan 2010 argue (against Wieland) that it is more likely
that pornography merely causes the false belief that such meaning conventions are opera-
tive.
17. For a classic statement of a structural account of oppression, see Frye 1983.
 Mary Kate McGowan, Ilana Walder-Biesanz, Morvareed Rezaian, Chloe Emerson 89

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