First Amendment; counterspeech; misogyny; gender inequality; sex discrimination; Equal Rights Amendment


Gender equality, across all the ways that we humans are engendered, is an unrealized ideal of many contemporary Americans. It is not enshrined in the U.S. Constitution, unless one interprets “men” to include women, which the Framers did not. Although passed by Congress in 1972, the Equal Rights Amendment (ERA) failed to gain the necessary thirty-eight state ratifications, and it has never become law. Thirty-five states initially ratified it between 1972 and 1977, then two more in 2017 and 2018. It remains one state short. These ratifications indicate significant social progress for women, but the progress is uneven, even within states that have supported the ERA. Offering a glimmer of hope, the Senate of Virginia voted to ratify the ERA in February 2019, but the measure was killed in committee by the Republican-controlled House of Delegates. Women remain constitutionally unequal. For anyone concerned with justice, the question is not whether something should be done about the misogynist onslaught girls and women encounter; the question is: What should be done, and who should do it? Supreme Court doctrine may favor counterspeech to tort remedies or criminalization, but to justify this we need a robust conception of what sorts of speech might have the power to counter oppressive speech, who can achieve it, and under what circumstances. In setting policy, we cannot assume a speech encounter between equally powerful adults, each fully free to speak their minds and each with the backing of deep and broad social norms. Where inequality reigns, the odds are not in favor of someone who tries to combat the bad speech of the powerful with the more speech of the vulnerable. This paper explores the mechanisms of counterspeech and the limits of the remedies counterspeech can provide. By understanding the very concept of misogyny and considering some mechanics of the ways language works, we can gain a better picture of the prospect of creating normative change through counterspeech.