Is Margaret Atwood’s dystopia equal to Trump’s America?
We’ve seen the rise of The Handmaid’s Tale-inspired protests – spread across the world but particularly prevalent in the US in recent times – raising important questions about the scope of the freedom of speech under the US Constitution in the context of protests. Silent and peaceful demonstrations have developed as a response to initiatives of President Trump's government and, on occasion, its personnel or those supported by it.
Thus, I was delighted to attend Dr Jane Marriott's (Royal Holloway) Constitutional Law Seminar at City Law School entitled "Under His Eye: Handmaids, Symbolic Speech and Trump's America”, which engaged with interesting issues that arise and can be discussed in respect of the Handmaid protests in the US. In particular, Dr Marriott spoke in-depth about the way in which such protests fall within the First Amendment of the US Constitution and the legal protection of free speech.
What’s The Handmaid’s Tale?
Margaret Atwood’s tale is a dystopian novel set in a totalitarian theocracy thus, the position of women in the Republic of Gilead is relevant in this article. Despite being silenced, the women’s clothes speak volumes about who they are and what they represent. The handmaids wear deep red to represent being reproductive organs. They are to have sexual intercourse once a month with the high-ranking commander, thus red symbolises fertility. In Gilead, women are an exile, subjugated and in servitude to their husbands and commanders.
This has led like-minded feminists to view it as mirroring the reality in sexist jurisdictions, such as Iran, Croatia and Costa Rica. For example, just last year abortion-rights fundraiser Kamala Harris compared Alabama's abortion law to The Handmaid's Tale, implying that the state has reduced women to incubators who serve no other purpose than growing babies.
Women are protesting in the US states of Alabama, Arizona, California, Georgia and Washington about the erosion of women’s rights. They’re typically dressed in the handmaid’s costume, maintain silence, bowed heads, sometimes carrying signs, seated or a standing vigil (marching slowly and quietly). Some protests are about the right to abortion, which is currently under threat in the US (specifically in Alabama, Ohio and Georgia), family planning and violence against women, whilst others are person-centred against political figures like Trump, Vice President Mike Pence, Darrell Issa, Robert Fisher and Supreme Court Justice Brett Kavanaugh.
In 2018 Fisher was outed as the creator of men’s rights forum The Red Pill, where he advised men to video sexual encounters for proof of consent. In the same year, the anti-Kavanaugh protest saw many outside the Senate building protesting to reject the embattled Supreme Court nominee, who is not only anti-abortion but also an alleged sex offender. Thus, many feared that having him on the Supreme Court bench would lead to right-wing decisions. In 2019 a full spectrum of Atwood-style handmaids and peace activists took to Trafalgar Square to rally against Trump’s visit to the UK. Such traction in protests has not only caught the attention of the media, but also leading academics; Harris (2016) believes because of the prevalence of “ascriptive hierarchy” the US has never been a truly egalitarian society and instead has been defined by hereditary characteristics, such as race, sex, religion and class. Gokariksel and Smith (2017) agree that politicians have opted for a “narrative of threat and fear” by using “defensively aggressive strategies to protect white masculinity, which has been threatened by immigrants, Muslims and women”.
The First Amendment
Free speech is a way of questioning the dominant paradigm and is a right that must be protected because it creates a safe space for people to engage in discussions without state interference, unless proportionate or deemed necessary. Thus, the First Amendment liberties are deeply relevant to this subject matter because they thread the needle between allowing the government to regulate aspects of our behaviour whilst giving individuals room to manifest their individuality. Further, subversive speech emboldens people to fight against the dominant paradigm. Those resisting the social order in the tale etch notes to each other, reminding themselves not to lose hope. These acts of individuality are resistance in themselves, in a world where one’s true thoughts can never be expressed.
Pure speech is protected in the US Constitution under the First Amendment, but the handmaid’s protests are neither ‘pure speech’ nor ‘commercial speech’ – it’s somewhere in the middle as ‘speech plus’. This has led academics to question how well it is protected; Dr Stanton, senior lecturer at City University, suggests silent protests might be thought not to engage rights set out in the First Amendment. He explains, “Such provision is more typically associated with vocal expression or the display of written sentiments.” Cox and Louisiana (1965) reject the notion that silent speech be afforded the “same kind of freedom” to those “who communicate ideas by pure speech". However, this view is trumped a year later in Brown v Louisiana (1966) which found that silence is speech and “these rights are not confined to verbal expression. They embrace the right to protest by silent and reproachful presence”. This view is supported by Richmond Newspapers v Virginia (1980), which found that speech includes the non-verbal and “partakes in the same transcendental constitutional value as pure speech”.
Speech plus: symbolic speech
It is clear that the handmaid’s protesters engage in the speech plus arena, but more specifically in the subcategory of symbolic speech. The following case West Virginia v Barnette (1943) recognises the significance of symbolic speech as an “effective way of communicating ideas”. This suggests that the protesters are trying to symbolise women uniting when their rights are under threat. Having said that, Dr Jane Marriott's research suggests that the book isn’t quite the feminist book because most of the physical and psychological torture done to women is by women. However, it could be argued that patriarchy made them do it and this alludes to the misconception that just because you’re a woman, you’re going to fight for women’s rights. Thus, the fact that the handmaid’s symbol is quite ambiguous doesn’t take away from the inspiring female empowerment message.
Limitations of symbolic speech
As a response to the rise of protests, there's been anti-mask statutes enacted in North Dakota and Arizona, which are intended to target anti-fascist groups but could catch the handmaids’ protesters. In 2017 North Dakota passed a specific statute (less likely to catch a handmaid) which prohibits individuals wearing a mask/hood to conceal their face (for the purpose of escaping discovery) with the intent to “intimidate, threaten, abuse, or harass”. In 2018 Arizona passed a broad statute (more likely to catch any handmaid) deeming it “unlawful for a person to wear a disguise” in a civil protest or public or political event; however, not only has this law not been tried and tested in court, but it also fails to consider ethnic minorities, such as Muslims who wear the hijab, niqab and burka.
It’s extraordinary how a mere novel can spark political protests worldwide and unite women from different jurisdictions and states (who have never met each other) unanimously. It’s especially inspiring to see such protests in misogynistic countries where women don’t have a voice but have found one through The Handmaid’s Tale. Atwood has cleverly used themes in her novels to illustrate real-life antecedents, which has created a far-reaching impact on not just women, but Labour, Greens and peace activists. It’s a great testament to just how powerful words on a paper can be and reminds us just how powerful freedom of speech is, and why all forms should be protected.