Feminist Theory and Freedom of Speech, Free Speech Theory

and instrumental way that it traditionally has been, as focused on logic and means/end rationality. Reason, like truth, is highly contextual. Second, reason cannot be contrasted with emotion or politics simply because the latter are seen as normative in nature. The opposite of a reasoned judgment is not an emotional one, but an unreasonable one: emotions are often quite reasonable. 25 None of this means, however, that reason should lose its place among-maybe even in the forefront of-those human capacities we use to make knowledge. Reason, like truth, is a category worth rehabilitating. Reason is the process through which we make sense of our experience. "Making sense" is, of course, a highly contextual matter: the sort of argument that can make sense of our experience in a physics laboratory (mass, velocity, vectors) is not the same as the sort of argument that can make sense of our experience at a baseball game (strikes, foul balls, and runs). The concept of reason captures this concern that some things-such as forms of argument and conceptual categories-in some contexts, help us to make sense of our experience better than others.26 Finally, the relational model of truth sees language in a way quite different from the traditional Cartesian propositional, representational view. Because cultural understandings so deeply shape our truths, and because language is one of the primary vehicles through which such understandings are created, maintained, and transmitted, language is seen as performative rather than as representational. To make a truth claim is to do something in the world, not merely to represent something that already exists. 25. See Martha C. Nussbaum, "Secret Sewers of Vice": Disgust, Bodies, and the Law, in THE PASSIONS OF LAW 19, 21 (Susan A. Bandes ed., 1999). 26. See PAUL CHEVIGNY, MORE SPEECH: DIALoGuE RIGHTS AND MODERN LIBERTY 66 (1988). 2009] 1007 INDIANA LA W JOURNAL With this sketch of the model in place, we can now turn to consider how this model serves the purposes or functions of truth outlined in the previous Part. The first function of truth was to serve as the basis for claims of intersubjective knowledge, claims concerning a shared reality that makes cooperative social action possible. The second function of truth was to serve as the basis for a critique of existing social institutions and conventions, a critique that can be broad and deep rather than merely a matter of "tinkering." These two functions mark the acceptable range on a continuum: at one end is a cultural framework that is so totally open that it allows for too little shared reality (relativism) and at the other end is a cultural framework so totally closed that it allows for too little critique (conventionalism). If all knowledge is contextual, then one way to see this problem is as a dilemma about the size of the context. If we are looking for a context rich and powerful enough to generate a shared reality on a controversial issue, then we can find ourselves drawing the context ever smaller, in order to find enough common ground for a consensus. Such a shrinking context, however, can leave us with a radical relativism in which truth can be determined only from within a given viewpoint, and viewpoints are-at least potentially-no bigger than a single person. Shared reality would then become difficult or impossible. On the other hand, if we are looking for a context big enough to include deep and broad challenges to our assumptions, then we may find ourselves expanding the boundaries of the context beyond the usual cultural limits. Such an expanding context, however, can leave us with too little in common to draw on for any kind of claim at all. Deep critique would then become meaningless: it would be like criticizing people in a language they do not understand. Thus, the two functions of speech push in opposite directions but each, if taken to an extreme, undermines its own goals. The need for a shared reality pushes us toward smaller contexts, but if they are too small they cannot sustain such a reality. The need for deep critique pushes us toward larger contexts, but if the context is too large it cannot sustain such a critique. When seen this way, the problem is finding the right context: one that is small enough to generate a strong sense of shared reality, but big enough to provide materials for deep criticism of its own assumptions. What makes this problem seem so intractable is its construction as an epistemological issue rather than a pragmatic, social and political one. If contexts are seen as given in advance and static, then it may be very difficult to find one that has both sufficient grounds for shared reality and sufficient resources for deep critique. And, even if one could locate such an ideal context, it may be very difficult to explain how one could argue that other people need to adopt the same cultural context rather than a competing one that they may prefer. So, for example, on gender equality issues, it is hard to find a cultural framework that includes both widely shared commitments and the foundations for deep critique. And, assuming that I have found such a framework-perhaps the constitutional culture's commitment to equality would serve-it is hard to know how I would convince someone who was committed to a religious framework on gender issues that he or she ought to adopt mine instead. But contexts are not given and static; they are created and recreated through our act of calling upon them. This means that social and political action can generate a new framework that no one was aware of before, such as the frame of women's experiences that was generated by the feminist practice of consciousness raising. It also means that existing frameworks can be and are transformed by how we use them. It is not that anything is possible in any framework, of course, but we determine what is possible [Vol. 84:999 1008 FEMINIST THEORY AND FREEDOM OF SPEECH through the very process of calling upon a framework, rather than knowing its limits in advance. We are not at the mercy of some epistemological slippery slope down which we will slide into a context that is either too large or too small. Contexts do not just sit there waiting for us; they have to be built and rebuilt. And the process of building and rebuilding them is a social and political process that must be guided by our values. So, if we find that there is not enough common ground for the social group that must make a joint decision, then we must build that common ground through social and political action. The construction of such common ground is a large part of the purpose and appeal of the narrative turn in legal scholarship. The use of stories allows us to expand our experience without changing the circumstances of our lives and that expanded experience can provide a foundation for a shared reality across significant lines of social division such as race, gender, or class. 27 Or if we find, on the other hand, that we share a great deal but there are not sufficient materials within our current context for deep criticism, then we must build a context that includes such materials. As I mentioned above, the recent history of consciousness raising provides a striking example of using the materials of a shared reality-the frustration and unhappiness of many women in a patriarchal society-to generate new grounds for critique. Such efforts at cultural construction are not guaranteed to be successful and they can take a long time to bear fruit. Our efforts to build a context may fail rather than succeed in any given instance. But we will not find ourselves sliding inexorably toward one end or the other of the spectrum: contexts are not so given and we are not so passive as that picture would suggest. The challenge before us is not fundamentally a conceptual one, but a moral, political, and practical one: deciding what sort of context we need to address an issue and then taking the action necessary to build it. Knowledge-making is similar to, even continuous with, political action. Neither relativism nor conventionalism is ever simply inevitable. With the relational model of truth, both shared reality and deep critique are possible, meaningful, desirable, and a matter of human effort. The third function of truth is to provide a basis for "working" claims. I hope it is clear how this function of truth is consistent with, even required by, the relational model I have offered. The responsibility that is central to this model requires that we consider and respond to the challenges, moral and political, that others might bring against our decisions or beliefs. The "working" truth claim is precisely this type of challenge. The relational model of truth does not merely allow for the "working" type of truth claim; importantly, it places such claims at the center of our attention because they raise precisely the issues of moral and political responsibility upon which epistemology rests. Finally, the fourth function oftruth is to provide a connection to a stable, nonhuman reality. This function poses the greatest challenge for a social constructionist model of truth. In the relational model, truth is a human creation, deeply shaped by culture and personal context. Social constructionism cannot take a position on what, if anything, is "really out there." Indeed, from a social constructionist view, this is a meaningless question because all knowledge-making goes on only "in here," meaning within human cultures. But this does not mean that social constructionism denies the existence of 27. See Kathryn Abrams, Hearing the Call of Stories, 79 CAL. L. REv. 971, 1020-24 (1991). 1009 2009]