We’re in a moment of antifeminist backlash, and, increasingly, that backlash seems aimed at silencing women, or punishing the women who won’t shut up. It’s a perilous time for women’s speech – or at least, it’s a perilous time for women who speak out against sexism. Over the course of this spring and summer, threats to feminist activists and abuse survivors have multiplied and become more serious, with women who speak out against men’s violence or in favor of women’s rights increasingly targeted by abusers, vigilantes, antifeminist activists and lawmakers, and the courts.
The trend became inescapably visible this spring, as the actor Johnny Depp’s defamation trial against his ex-wife Amber Heard stretched on for weeks. Depp’s court battle against his ex-wife, his second time suing over the allegations that he beat and sexually assaulted her, attracted frenzied, hate-filled attention on social media the way a boulder gathers mud as it rolls downhill. But though Depp’s lawsuit received an unusual amount of attention, his tactic of suing his accuser over her disclosure is not unique.
Defamation suits are becoming a routine tool of retaliation and revenge for men accused of sexual and domestic abuse – and a growing threat to women’s ability to safely and freely speak about their own lives. The advocacy group Know Your IX, which lobbies on behalf of student survivors of sexual violence, says that 23% of students who make Title IX complaints are threatened with defamation suits by their alleged abusers.
Depp is just one of a growing number of high-profile men who have retaliated with lawsuits against the women who have accused them of violence, or the journalists who have investigated these accusations. Depp now shares this litigious distinction with his friend, the musician Marilyn Manson, and with the Barstool Sports executive Dave Portnoy. These lawsuits are not meant to determine whether a man should be punished for his abuse of women. They are meant to determine whether women should be punished for speaking about it.
Midway through Depp’s trial, in early May, we got news of another legal drama. Politico published a leaked draft of the US supreme court’s majority opinion in Dobbs v Jackson Women’s Health, which revealed that the court would soon overrule Roe and end the constitutional right to an abortion.
In his opinion for the majority overturning Roe, Justice Samuel Alito approvingly cited the 17th-century English jurist Matthew Hale, a figure best known for his participation in a 1662 witch trial. Hale was hostile to abortion, but he also held a dim view of women’s speech and its legitimacy. Notably, his contributions to English rape law imposed strict requirements on the kinds of testimony from women that could be admissible in a court. He originated the so-called “prompt outcry rule”, declaring that rape accusers could not be believed by a court unless they complained immediately, with evidence such as physical injuries, to a male authority of good reputation who could corroborate them. In other words: women’s speech was not credible unless it could be coupled with a man’s.
Hale was also the originator of “cautionary jury instructions”, or Hale instructions, admonishments that were read to rape juries for centuries, telling them not to believe accusers. These instructions are not a thing of the distant past – they were a required part of rape jury trials in the United States until at least 1976. The guiding assumption of nearly all of Hale’s legal commentary was that women’s speech was suspicious, untrustworthy and probably malicious. He thought women were liars, and, because he had the power to do so, he calcified this bigotry into law. As for Alito’s opinion, women and their concerns do not appear in his argument for overturning Roe much at all. It seems that he preferred not to listen to them.
This was the official status of feminist speech in America this summer even before the fall of Roe: punished by one court, demonized by ancient authorities, and disregarded by current ones – all in the moment when feminist speech was most necessary.
Now, after Roe, women’s free speech rights are poised to be eroded even further. After Alito’s opinion became final on June 24, states moved with military swiftness to ban all abortions. Republican-controlled legislatures advanced laws so inventively punitive that anyone on the left who had predicted them would have been deemed a catastrophizing alarmist just a week earlier. There have been proposals to ban interstate travel for abortions; various healthcare providers, confused and frightened by the ill-defined but harshly enforced new laws, have stopped dispensing emergency contraception. There are fears that doctors, afraid of getting arrested or sued, will leave women with ectopic or non-viable pregnancies to suffer without treatment until threat of legal liability has passed.
Now the activist group National Right to Life, an anti-choice organization that has been influential in pushing state legislatures to the right on women’s rights, is proposing bans on speech about abortion. In reporting for the non-profit news outlet Prism, Ashton Lattimore writes that the model bill, which National Right to Life hopes will be adopted by state legislatures, seeks to impose both criminal and civil penalties for actions such as “aiding and abetting” abortion, terms defined so broadly as to include “hosting or maintaining a website, or providing an internet service, that encourages or facilitates efforts to obtain an illegal abortion”.
The legislation is so broad in its criminalization of abortion information and advocacy that it threatens to make illegal the quotidian honesty of healthcare providers, the due diligence of journalists and the political views of pro-abortion rights advocates. That information about abortion is overwhelmingly both sought and provided by women, and that abortion rights advocacy is a form of speech overwhelmingly made by women, is not a coincidence.
Whereas Alito’s hero Matthew Hale tried to use the law to discredit women’s speech against men, and Depp used to law to punish the speech of his ex-wife, now National Right to Life seems poised to use the law to silence women altogether. More and more, a woman who speaks out against sexism or male violence is liable to find herself facing legal problems. It raises the question: free speech for whom?
Moira Donegan is a Guardian US columnist