Legal Frameworks and Free Speech Lenses in The Handmaid’s Tale

If you’re not watching The Handmaid’s Tale, you should be.  The Hulu series based on Margaret Atwood’s book (which I haven’t read, so I am watching fresh) does not rise to the level of profundity, creativity, grace, or elegance of the famous dystopian novels 1984 and Brave New World.  However, so far, the series has sophisticated writing, masterful acting, poetic filming, and powerful moments of tension and revelation.

A main function of dystopian fiction is to present an exaggerated form of some aspects of our society, so we gain new perspective.  As the series notes, people eventually habituate to rules and customs that seem strange at first.  Dystopian fiction forces us to reexamine aspects of our government and our culture to which we have become habituated.  The Handmaid’s Tale should be viewed with an eye to understanding our culture’s current pathologies, although its relevance to our current political climate has been overstated.

For a viewing experience more nuanced than “sexism is bad,” when you watch the show, attune yourself to issues of (1) choice versus government control and (2) language as both oppression and subversion.  Both themes have strong implications for First Amendment rights.


In most dystopian fiction, the state is an all-powerful entity that neither reflects the democratic will of the majority nor respects individual rights.  Government control is a chief evil.  The world of The Handmaid’s Tale is no different.  Although The Handmaid’s Tale manifests strong feminist themes, the series should first make us question the role of government in shaping a better society.  The series provides a framework to confront questions of choice versus government control.

In The Handmaid’s Tale, a strong, heavy handed, totalitarian government uses women as breeding containers for members of the ruling class.  This type of sex slavery has prompted viewers and commentators to note the ways in which women’s reproductive freedoms are currently curtailed.  However, in some ways, these parallels miss the point – the evil of government control.

There are good arguments that when states restrict access to abortion facilities, the resulting laws are simply sexist tactics to limit women’s opportunities and remove their ownership of their own bodies (although the issue is more complex, given subjective conceptions of when life begins).   However, the government cannot ban abortions outright or make contraception illegal (although they try).  The current debates over whether the government should force employers or insurers to subsidize contraception are not on point in the same way.  Indeed, this type of forced subsidization would actually increase government control and diminish individual and employer choices (or different experimental models of insurance) as against government mandate.  Whatever your policy preferences, not forcing employers to provide coverage for contraception as part of their health insurance policies is a far cry from forcing women to give their bodies as instruments to the state.

Dystopian fiction should promote reflection on the fact that whenever the government acts, individual choices are diminished.  The government generally invokes notions of “the greater good” to take away an individual’s property, labor, and privacy.  This is not to say that all government action is evil, or misguided, or even net harmful.  The government does much good.  But a show like The Handmaid’s Tale should inspire you to decide what lines should be drawn in the government’s involvement in managing our liberty and property, and interfering with our lives and health choices.

There are no easy solutions to current debates about the government’s role in health care, national security,  and international trade, as examples.  The Handmaid’s Tale provides a nice line-drawing framework for deciding what we deserve as negative liberties (liberties as against the government, which maximize choice) versus positive liberties (areas where government intervention is needed to give some people more autonomy as against the choices of other individuals or as against their own bad choices).  Although The Handmaid’s Tale shows extreme uses of government force, every law our government enacts is enforced with threats of imprisonment.

First Amendment liberties are deeply relevant to these discussions, because they thread the needle between allowing the government to regulate some aspects of our behavior and giving individuals room to manifest dissent and individuality.  Indeed, the liberties most swiftly and violently restricted in The Handmaid’s Tale are criticisms of the government or the social order.  Questioning a handmaid’s role, and not showing the requite amount of gratitude, leads to immediate, harsh punishment.  Language is also perverted and restricted.  Men cannot be called “sterile.”  Only women are either barren or fertile.

Free speech is a way of questioning the dominant paradigm.  Even if most enlightened and moral people agree that a debate has been resolved, First Amendment protections are necessary to ensure that there are ways of changing the system.  Actions may be outlawed, but so long as we are not forced to agree on the propriety of these actions (or these laws), change is possible.

Further, subversive speech emboldens people to fight against the dominant paradigm.  Those resisting the social order in The Handmaid’s Tale etch notes to each other, reminding themselves not to lose hope.  These acts are a resistance in themselves, in a world where one’s true thoughts can never be expressed – and are unlawful and immoral.  Expressing your innermost thoughts is a way of separating yourself from who society wants you to be.  It is an act of individuality that preserves one’s most essential freedom.

The importance of small acts of personal expression is, in part, why the First Amendment protects profanity.  The profanity in The Handmaid’s Tale is a bit coarse for my taste, but it importantly and dramatically distinguishes the way women are supposed to think and the way their brains actually work.  The First Amendment also protects humor, parody, and anonymity for similar reasons.  In a world where everyone is forced to outwardly agree on values, humor is a way to show that someone is willing to subvert the dominant paradigm, to deride sacred cows, and to think for herself.  Be wary of people who tell you think some topics can never be the subject of a joke – removing the humor from a topic is a way of forcing uniformity and unearned piety.  Also be wary of those who use language in illogical or counterintuitive ways – arguing, for example, that speech is violence or that silencing others is speech.  These tactics often come from those with good intentions and noble goals, but ultimately reveal the orthodoxy they wish to promote.

There is, of course, so much more to say about The Handmaid’s Tale – about the role of religion, about how rights are restricted, and about relationships in oppressive societies.  I’m interested in your thoughts as well, and I may return to this topic.  I won’t be missing a single episode of this riveting drama, which is both an escape from and an illumination of our current era.

8 thoughts on “Legal Frameworks and Free Speech Lenses in The Handmaid’s Tale”

  1. “Free speech is a way of questioning the dominant paradigm.”

    It is, but it’s also so much more. That is, speech isn’t only political speech. It also protects wearing what you want (even if that clothing doesn’t have a “message”). It protects paintings with “no image” and music with no words, or video games with no characters (Tetris).

    People who can vote, but can’t wear ripped jeans, listen to Bach or have an incomprehensible Van Gogh on their dorm-wall, are definitely freer than people in the opposite position, but they still aren’t free until they can have such paintings and listen to such music, or wear such jeans to a private school–even if no one punishes them for their purely “political” (paradigm-shifting) speech.

    When speech only protects political speech you get bizarre results like allowing the government to ban cigarette advertising, or pornography, or criticizing the religious beliefs of Scientology, etc. A world no American would accept.


  2. It’s true, Jackson. Most people under 40 aren’t aware that governments used to try to ban non-political speech–like nudity and cigarette advertising–they’re only aware of attempts to ban political “dystopian” literature–like Fahrenheit 451 or “obcene” literature like Tropic of Cancer.

    If only the first amendment didn’t single out political speech for protection, people would know that it protects all forms (and mediums) of speech.


  3. “negative liberties (liberties as against the government, which maximize choice) versus positive liberties (areas where government intervention is needed to give some people more autonomy as against the choices of other individuals)”

    So negative liberties would be like freedom from government censorship, whereas positive liberties would be like freedom from discrimination in private housing?


    1. Absolutely correct, Rawls. One minor issue- I don’t describe something as a freedom unless it exists as against government coercion (like free speech), so I would describe anti-discrimination laws as conferring a right. This is because only government mandates stop experimentation entirely in a field (even in the absence of anti-discrimination laws, people might choose not to discriminate anyway).

      I cannot recommend highly enough, if you want to read something intelligent and gorgeous on positive versus negative liberties, Isiah Berlin’s Two Concepts of Liberty. Get through it all! Here is a link.

      Click to access berlin.pdf


      1. “Such freedom ultimately depends not on whether I wish to walk at all, or how far, but on how many doors are open, how open they are, upon their relative importance in my life, even though it may be impossible literally to measure this in any quantitative fashion.”
        -Four Essays on Liberty by Isaiah Berlin


  4. The message of the show seems to be that rapists should get longer prison sentences than insider-traders.


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