Psychoanalysis, speech acts and the language of “free speech

Res Publica VoI.IV no.1 [1998]

PSYCHOANALYSIS, SPEECH ACTS AND THE LANGUAGE OF "FREE SPEECH"

SIONAIDH DOUGLAS-S COTI'*

Introduction - - Controlling Hateful Speech

The focus of this paper is an attack on a prevailing view of what, for want of a better description, I shall call freedom of expression. A traditional liberal justification of freedom of expression holds that not only does freedom of expression aid us in our search for truth but it also promotes certain key values such as individual autonomy and democracy (in that people should be able to decide for themselves which political and societal views should prevail).1 This, it is suggested, is possible only if government does not censor certain viewpoints. Ronald Dworkin spelled out the practical implications of this view when, attacking current legislation in Germany which makes it an offence to deny, approve of or belittle the crimes of the Holocaust, 2 he wrote that "we

* School of Law, King's College, London. 1 Arguments based on truth are considered later in this paper. An autonomy-

based justification of freedom of expression is proposed by R. Dworkin in "The Coming Battles over Free Speech", New York Review of Books (1992), 56-57; T. Scanlon, "A Theory of freedom of Expression", Philosophy and Public Affairs 1 (1972), 204-26; D. Strauss, "Persons, Autonomy and Freedom of Expression", Columbia Law Review 91 (1991), 334-71. Arguments based on democracy are considered by A. Meiklejohn, "Free Speech and its Relation to Self-Government", in Political Freedom: the Constitutional Powers of the People (New York: Oxford University Press, 1965), 39; see also D. Hume, "On the Liberty of the Press", in his Essays, Moral, Political and Literary (Oxford: Oxford University Press, 1963); B. Spinoza, A Theological and Political Treatise, trld. R.H.M. Elwes (New York: Dover Publications, 1953), ch. XX; and J. Ely, Democracy and Distrust (Cambridge, Mass.: Harvard University Press, 1980).

2 In Germany the "Auschwitzliige" offence (literally the "lie of Auschwitz" offence) under Articles 130 and 194 of the Criminal Code prohibits the approval, trivialising or denial of Nazi crimes or the crimes of other violent regimes. The laws of other European countries, such as France and Austria, also create similar offences. See also the (unsuccessful) Bill introduced into

30 SIONAIDH DOUGLAS SCOTT

must not endorse the principle that opinion may be banned when those in power are persuaded that it is false and that some group would be deeply wounded by its publication".3 A similar view is expressed by Wojciech Sadurski, who, in a recent review of Catherine Mackinnon's Only Words, criticises those, such as Mackinnon, who would seek to regulate hate speech and pornography in order to bring about equality, suggesting that such regulation would deny the "autonomy and individual responsibility of the hearers". 4

The views of Dworkin and Sadurski, paradigmatic of a certain type of liberal position, have themselves not gone without criticism. There is now a growing body of criticism, in particular, of the near absolute strength of freedom of speech in the U.S.A. These critics hold that it is better to allow inroads into freedom of expression than to continue to permit the harm caused by certain verbal utterances. 5

However, it is not the purpose of this paper to focus on a critique of the standard justi~cations of freedom of speech offered by those such as Dworkin and Sadurski, but rather to suggest an alternative approach. For one surprising feature of the debate over expression and controls on expression is that such debate should take place almost entirely within the terrain of liberal theory. Very little account seems to have been taken of the rich accounts given of speech and language in modern

the U.K. Parliament in 1997 as the Holocaust Denial Act 1997, to amend the Public Order Act 1986 to include a new section: "(5A) ... any words, behaviour or material which purport to deny the existence of the policy of genocide against the Jewish people and other similar crimes against humanity committed by Nazi Germany ('the Holocaust') shall be deemed intended to stir up racial hatred."

n "~" Independent Ronald Dworkin, "Should the Wrong Opinions be Dannea. , on Sunday, 28 May 1995. Wojciech Sadurski, "On Seeing Speech through an Equality Lens: A Critique of Egalitarian Arguments for Suppression of Hate Speech and Pornography", Oxford Journal of Legal Studies 16:4 (1996), 713-24. See e.g.R. Delgado, "Words That Wound", Harvard Civil Rights-Civil Liberties Review 17 (1982), 133-81 ; M. Matsuda, "Public Response to Racist Speech: Considering the Victim's Story", Michigan Law Review 87 (1989), 2320-81; C. Mackinnon, Only Words (London: Harper Collins, 1994); C. Sunstein, Democracy and the Problem of Free Speech (New York: Free Press,1993); O. Fiss, The Irony of Free Speech (Cambridge, Mass.: Harvard, 1996).

PSYCHOANALYSIS, SPEECH ACTS AND "FREE SPEECH" 31

literary and psychoanalytic theory and philosophy of language. 6 The standard liberal approach has been allowed to occupy virtually the whole terrain of discussion over the function of speech and language. Furthermore, what is taken for granted by this traditional approach is that, free from state interference, people are able to express themselves freely, to find their own truth, attain greater self-understanding and so on; and that, therefore, as much expression as desired should be permitted both in public and in private. A fuller consideration of the work done by speech shows that none of this is necessarily so.

The views to be considered here lead us to mistrust speech rather than to prize it as a means to greater self-understanding or truth. They lead us to rebut the traditional presumption in favour of freedom of expression. Two areas of focus illustrate why this is so.

First, a brief excursion into psychoanalytic theory reveals a very different approach to speech and language. Initially, the psychoanalytic situation might seem to have something in common with the liberal paradigm of self-expression and autonomy. For why is free, unconstrained speech ("the talking cure") so important in the context of an analytic session? Well, it is important in order to improve our self- understanding and to explore our hidden depths and repressions, which will somehow come to light through speech, language and self- expression. But how disturbing then, if the very means which should permit this self-understanding - - language - - should not be the transparent entity, the conduit, that we might suppose it to be. Work in psychoanalytic theory presents a very different view of language and speech from the traditional self-congratulatory liberal analyses of speech. The focus is instead on how language performs, obfuscates, confuses and misleads us. A strong reason for rebutting the presumption in favour of free speech comes specifically from the theory of language of Jacques Lacan, which stresses the obfuscation of language and its grounding in desire and lack, rather than in its ability to describe the world successfully or in its ability to enable us to attain truth or autonomy.

Second, speech can cause very real harm, just as much as other types of acts are capable of doing. The old sticks and stones adage does not

Judith Butler's recent work Excitable Speech (London and New York: Routledge, 1997) is a notable exception and is considered below in detail. See also Mackinnon, supra n.5; Rae Langton, "Speech Acts and Unspeakable Acts", Philosophy and Public Affairs 22:4 (1993), 293-330, for a speech act approach to pornography.

32 SIONAIDH DOUGLAS SCO'I"I"

ring true. A statement such as "I say the Holocaust never took place"7 can cause real harm, distress or worse, as writers such as Delgado and Matsuda 8 have stressed. As Toni Morrison has written, "[O]ppressive language does more than represent violence, it is violence. ''9 But such harms - - caused by speech - - are not always prohibited by legislation. Why ignore these? Because we allow even the grossest insults and lies to be conceptualised as "speech" that communicates, contains ideas and must therefore be protected. 10

For a theoretical approach that takes us away from a theory o f speech as describing concepts, or containing ideas, one may turn to the work of J.L. Austin, who, in H o w to Do Things with Words, 11 shifted the emphasis from what language is to what it does. Consider, for example, constitutional law: even the very words/actions divide seems to be manipulated in a way that privileges free speech. Actions such as cross burning or flag burning are treated as symbolic speech, and thus privileged, because they are interpreted as containing ideas. But, following Austin, we can twist this privileging in the opposite direction

7 Or a statement such as those made in Jersildv. Denmark, where statements were made by racist skinheads in a radio interview, which provided the basis for criminal conviction, included: "A nigger is not a human being, it's an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs ..." (Jersild v. Denmark, Case No. 36/1993/431/510. 1994 19 EHRR 1).

8 Supra n.5. 9 Toni Morrison, t 993 Nobel Lecture, Literature Today, 5-8, at 6. 10 The U.S. case of R.A.V. is a good example of this. R.A.V. involved the

burning of a crudely-made cross (with the clear intent of intimidation) on the lawn of a black family who had moved into a formerly all white neighbourhood. The appellant, R.A.V., was charged under the St. Paul Bias-Motivated Crime Ordinance. According to this, anyone who, like R.A.V., "placed on public or private property a symbol or object ... including ... a burning cross ... which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, colour, creed religion or gender commits disorderly conduct ...". The U.S. Supreme Court held that the St. Paul Ordinance was unconstitutional and that the charge must be dismissed. It offended the free speech guarantee of the First Amendment because it "prohibited ... speech solely on the basis of the subjects the speech addressed": R.A.V.v. St. Paul, 112 S.Ct 2538 (1992).

11 J.L. Austin, How to do Things with Words (Cambridge, Mass.: Harvard University Press, 1962).


so that we have not symbolic speech but speech acts. The focus should be on the actions that speech performs as much as on the ideas it contains. Support for this Austinian approach can be found in the works of Lacan and Derrida; and a theory of expression drawing on their work provides very serious challenges to the traditional liberal analysis of expression.

1. Rounding Up the Usual Suspects: Forget the Classical Justifications of Speech

Although the focus of this paper is not on classical justifications of free speech (and I do not wish to undermine myself by now addressing these "usual suspects") a brief consideration of arguments based on truth is required because they are of particular relevance to the suggestions in this paper. For the argument that free speech helps us in our search for mith is diametrically opposed to the Lacanian view of language.

The Argument j~om Truth

Freedom of speech, freedom of inquiry, the freedom to criticise, etc., are necessary, so this argument goes, in order for us to distinguish truth from falsehood. Milton's Areopagitica, for example, is based to some extent on the premise that the absence of government restrictions on publishing will enable society to locate truth and reject error. John Stuart Mill also posited the search for truth as the foundation of his plea for liberty of thought and discussion. 12

There are well-documented problems with such an approach, however. What is the nature of the truth to which freedom of expression is supposed to lead us, and is it in fact a valuable objective? Such an incipient critique is based on sceptical arguments regarding the epistemological status of claims about truth. The view that free speech will enable us to reach justified truth claims relies on a certain type of rationalism, according to which we can test the beliefs or facts underlying speech with regard to self-evident truths or empirical evidence; that is to say, it is based on a world picture in which truth is an evident value. This world picture is certainly not universally accepted.

12 John Milton, Areopagita (1644) (London: J.M. Dent & Sons; Everyman ed., 1928), 23-38; J.S. Mill, On Liberty (Harmondsworth: Penguin, 1962), ch. 2.


The works ofNietzsche, Foucault and Derrida have done much to argue for truth as a relative, or constructed, concept. What is true in one communi ty may be entirely false in another. In any case, a lot o f speech seems to have no truth value at a l l - many opinions are simply not verifiable. It might be possible to avoid this latter criticism by restraining ourselves merely to speech based on facts capable o f verification and excluding all value judgements, or highly speculative claims. But this is not satisfactory. What at first appear to be plain statements of fact also turn out to have different truth values, dependent on context. The truth value of a statement such as "France is a hexagon" depends on who is listening - - a precision geometrician, or a newspaper reporter.

The requirement that truth be capable of objective perception may strike some as overbold and unsophisticated. Truth may still be there, and free discussion, communication and expression may still render it more accessible, even if we cannot necessarily identify it. However, we do not necessarily provide a better justification by doing this. For such an approach may lead to a survival theory of truth - - i.e., the view that truth is a matter of whatever survives in the market. This approach has accrued support from distinguished members of the U..S. judiciary, in particular Justice Holmes. 13 But survival theories of truth can produce bizarre and undesirable results. If truth just is that which survives in any particular market place of ideas, then surely this view commits us to saying that National Socialism was "right" or "true" in Germany in the 1930s, or slavery equally right prior to the Civil War in the U.S.A. 1 4 an unpalatable form of moral relativism, to say the least, and one that few of us are willing to accept.

Nor does abandoning objectivity help free speech absolutists. It may well be the case that whatever we take to be true depends on the evidence deemed relevant to truth or falsity: but, if so, then there is no

13 In Abrams v. United States 250 US 616, at 530 (1919) (Holmes and Brandeis JJ., dissenting). Justice Holmes wrote: "But when men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."

14 A point made by Schauer in F. Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982), 21.


such thing as "ideologically unconstrained" speech. 15 For if this is how we assess the truth then we are always operating within the constraints o f our community dialogue. The neutrality sought by liberal advocates who privilege freedom of e x p r e s s i o n - - and on which American constitutional law in particular is b a s e d - is simply an impossibility from this perspective.

2. Lacan and the Emptiness of Language

Why is Language Most Efficacious When it Says One Thing Through Saying Another? 16

This section will focus in particular on one important aspect o f Lacan's work, his theory of language, drawing mostly on his paper, "The Function and Field of Speech in Language and Psychoanalysis", given in Rome in 1953 and often known as the "Rapport de Rome", or Rome Discourse. 17

What does Lacan tell us about language? One way of highlighting his views is to contrast them with a notion of language that is not Lacan's. This other theory of language - - often associated with the early W i t t g e n s t e i n - works on the basis that words, or sentences (or signifiers), represent concepts. 18 We use words to convey our meanings and intentions. If we say that "The college was on fire on Monday", we presuppose entities such as a college, a fire, and an event's occurring on Monday. According to a correspondence theory of truth, this statement is either true or false. 19 This has much in common with the justification based on truth mentioned earlier. But there are problems. How, as

15 As Stanley Fish argues i n There's no such thing as39ee speech and it's a good thing too (New York: Oxford University Press, 1994), 104.

16 J. Lacan, The Seminar ofJacques Lacan, Book III, trans. John Forrester, ed. Jacques-Main Miller (New York: Norton, 1988), 255.

17 Published in J. Lacan, Ecrits (Paris: Seuil, 1966), 237-322. 18 See his Tractatus Logico-Philosophicus (London: Routledge and Kegan Paul,

1961). 19 Examples of correspondence theories of truth are to be found in Bertrand

Russell (who soon rejected this), Problems of Philosophy (Oxford: Oxford University Press, 1912), ch. 12; see also A. Tarski, "The Concept of Truth in Formalised Languages", in Logic, Semantics, Metamathematics (Oxford: Clarendon Press, 1956), 152-278.


Russell pointed out in his 1905 article, On Denoting, are we to understand a sentence such as "The present King of France is bald"? 20 This not so much false as void. Language which is supposed to refer to things often fails to do so.

In contrast with the view of language outlined above, Lacan does not suppose a correspondence between word and concept, or signifier and signified. Instead of there being transparency or correspondence, Lacan claims there is a disappearance. How could this be? Because, according to Lacan, signs presuppose the absence of the objects they signify. Our language stands in for objects - - all language is in a way metaphorical, in that it substitutes itself for a direct wordless possession of the object itself. Jacques Main Miller cites an example given by Lacan in his first seminar. 21 Lacan considered elephants. The most significant thing to happen to elephants was something they were unaware o f - - that the word "elephant" exists and that, from the moment that word is introduced, elephants begin to disappear. Language names things and thus murders them as full presences, creating an alienation between the word and the thing. That is why Lacan said that "/e mot est la meutre de la chose". 22 The relation between word and object is not a quiet co- existence, as correspondence theories would suggest, but instead a relation of murder - - words replace things, and to such an extent that you enjoy words instead of things - - Lacan's "jouissance".

This conception of language, which focuses on the disappearance of reference, is not an entirely new invention of Lacan but owes something to Hegel. At the beginning of The Phenomenology of the Spirit Hegel proffers this example: 23 I say it is daylight - - a true sentence. I write it down, but at this point the reference evaporates because, although the sentence remains at the same place, with the same meaning, when the day turns into night, this sentence which was true becomes false. The reference evaporates. Thus writing is always writing in the direction of an absence. This is how human language functions - - by such a lack - - to point to the absence of the real objects that the signs designate.

20 Russell remarked, "Hegelians who love synthesis will probably conclude that he wore a wig": "On Denoting", in Logic and Knowledge, ed. R.C. Marsh (London: George Allen & Unwin, 1954), 41-56, at 48.

21 J. Lacan, The Seminar ofJacques Lacan, Book I, supra n. 16. 22 Lacan, supra n.21, at 56. 23 Hegel, Phenomenology of the Spirit, trld. A.V. Miller (Oxford: Clarendon

Press, 1977), Section A, Pt. I, paras 90ffand 58ff.


Words come to have a meaning only by virtue of the exclusion and absence of others.

The Linguistic Chain of Symbolic Order

Furthermore, not only do words not simply reveal their meaning for Lacan, but instead they lead on to other words in a linguistic chain. This is the meaning of what he terms symbolic order. The symbolic order is a self-contained dimension grounded not in correspondence, but in circularity. A signifier is defined by other signifiers. 24 This circularity is well-defined by Quine, 25 who asks, "What is an F?". The only answer is "An F is a G and so on." This is the foundation of an infinite metonymy. What is an F is a G. A G is something else and so on. But this infinite metonymy is based on the primary metaphor that killed the thing - - an erasure. The correspondence theory of language is replaced by a creation theory of language, the first creation being a disappearance or lack of all things. Thus language is empty because it is an endless process of difference and absence. Instead of being able to possess anything in its fullness, one moves from one signifier to another, along a linguistic chain which is potentially infinite. This potentially endless movement from one signifier to another is what Lacan means by desire. Language, says Lacan, is what "hollows being into desire". 26 To enter language is to be separated from what Lacan calls the real, that inaccessible realm which is beyond the reach of signification, always outside the symbolic order. According to Lacan, this occurs when we are severed from the mother's body. The child then realises it is a separate entity from the world, signalling the distinction between self and Other. At this point the child has entered the symbolic order, language. After the Oedipal crisis, we will never again achieve this blissful communion between mother and child, even though we will continue to search for it. We have to make do instead with substitute objects, which Lacan calls the "object little a', with which we try to replace the mother's body and

24 Lacan's position, of course, owes something to the work of Saussure, who noted in his Course on General Linguistics (London: Fontana, 1974) not only that the relation between the signifier and signified is arbitrary, but also that meaning is construed in negative terms, that one term is only what it is by virtue of excluding others.

25 W.V.O. Quine, Word and Object (Cambridge: MIT Press, 1960), at 54. 26 Lacan, supra n.17, at 502.

38 SIONAIDH DOUGI..AS SCOTT

to fill the void at the centre of our being. We move along substitutes for substitutes, metaphors for metaphors. For language is a system of differences. The signifying chain of speech comprises the "rings of a necklace that is a ring in another necklace made of rings". 27 Nor is there is any transcendental meaning or object which will terminate this endless y e a r n i n g - apart from the phallus itself, the transcendental signifier, according to Lacan. But this transcendental signifier is not an object or reality but merely an empty marker of difference, a sign of what divides us from reality.

The Language of the Unconscious

Lacan regards the unconscious as being structured like a language. The symbolic order links the world of unconscious mental processes to that of speech. It works by metaphor and metonymy and so it is composed less of s i g n s - stable m e a n i n g s - than of signifiers. 28 So, if you dream of a fire, for example, the significance of this is not immediately obvious - - it may not have one clear meaning, but be just one of a chain of signifiers with equally multiple meanings. And, for Lacan, the unconscious is just a continual movement and activity of signifiers, whose signifieds are often inaccessible to us because they are repressed.

If this constant sliding and hiding of meaning were true of conscious life it seems that coherent speech would be impossible. The ego h our consciousness - - can therefore operate only by attempting to repress this turbulent activity, provisionally nailing down words to meanings. But from time to time a word from the unconscious insinuates itself into discourse; and this is the famous Freudian slip of the tongue or "parapraxis". 29 These are the features through which the effects of the

27 Lacan, supra n.17, at 153. 28 Judith Butler's analysis of the R.A.V. case provides an interesting example

of this. She writes: "[T]he [R.A.V.] decision enacts a set of metonymic displacements which might well be read as anxious deflections and reversals of the injurious action at hand; indeed, the original scene is successively reversed in the metonymic relation between figures such that the fire is lit by the ordinance, carried out by traumatised rioters on the streets of Los Angeles, and threatens to engulf the justices themselves."-- Butler, Excitable Speech (London: Routledge, 1997), 60.

29 S. Freud, "Parapraxis', in Introductory Lectures on Psychoanalysis, trld. James Strachey (Harmondsworth: Penguin, 1973), chs.2-4.


unconscious are perceived. But for Lacan, what causes communication to be defective is significant; indeed, all our discourse is in a sense a slip of the tongue. Meaning is always in some sense a near-miss, a part failure, mixing non-sense and non-communicat ion into sense and dialogue. Lacan's own gnomic style, a language of the unconscious in i t s e l f - - described by Malcolm Bowie as "by turns strangulated and fluently associative" 30 __ is meant to suggest that any attempt to convey a coherent meaning in speech is pre-Freudian illusion.

In our conscious life we tend to assume that we are unified, autonomous selves: and without this, action would be impossible. But Lacan rejects this assumption - - there is for Lacan no autonomous, self- conscious subject. The ego is instead the function or effect of a subject which is always dispersed, never identical with i t se l f - - the individual is produced as a symptom of this signifying process which forms the symbolic order. 31 The subject of enunciating can never represent him- or herself fully. There is no noun which will sum up my whole being. I can only designate myself in a language with a convenient pronoun. The pronoun I stands in for an ever-elusive subject. Lacan rewrites Descartes as "I am not where I think and I think where I am not." 32

3. Austin and Lacan: What the Philosopher and the Psychoanalyst Did With Words

Another related feature of expression, and one which underlines its potential impact or harm, is the difficulty that we may have in distinguishing words from actions. Conduct such as cross burning may be classified as speech for the purposes of the First Amendment, but for many it would be seem to be more readily identifiable as a pure act of aggression, meant to intimidate. It can be very difficult to distinguish speech from harmful conduct. J.L. Austin recognised the work that such performative utterances could do when he called them "speech acts". Other writers have picked up this approach: Mackinnon, Langton and

30 M. Bowie, Lacan (London: Fontana, 1991), 62. 31 This account of subjectivity is in sharp contrast to autonomy-based

justifications of free speech, which seek to promote speech on account of its alleged ability to help us in our self-definition and to become more autonomous: see supra n.1.

32 Lacan, supra n. 17, at 517.

4O SIONAIDH DOUGLAS SCOTT

Matsuda 33 argue that pornography and hate speech are performative, that they constitute a certain type of conduct, which silences those who are depicted in a subordinate fashion. Austin's theory of speech acts also provides a link with Lacan.34 For Lacan's concerns m certain blindly restrictive conceptions of language, the function of speech, firings and infelicities of discourse-- are also those of speech act theory as articulated by Austin.

Austin also criticises the view (often associated with the earlier Wittgenstein) which presumes that language is primarily descriptive, a view which has been described as "the descriptive fallacy". As Austin points out, utterances are rarely just statements to be tested for truth and fals i ty-- most have nothing to do with truth or falsity. Instead most utterances are acts, they perform: hence he called them performatives, for example the "I do" of a marriage ceremony or the "I bet" of a wager. The notion of a performative speech act also accords well with much legal language, such as the jury's "we find the defendant guilty". Such an utterance cannot be translated into a descriptive form, or at least the attempt to do so does no justice to the statement. This emphasis on the performative capacity of language reminds us of the strength and power of words, obvious in insults and racist invective, such as the types of racist invective or denial of the Holocaust prohibited under German law, or laws against incitement to racial hatred in Britain. (Even more obvious, of course, are the symbolic speech examples which keep cropping up under U.S. l a w - - cross burning in R.A.V.v. St. Paul, or flag burning in Texas v. Johnson35). A speech act analysis brings home the action that these words commit.

However, there are those who criticise the application of speech act theory to hate speech and pornography. Sadurski, 36 for example, argues that these utterances are in fact what Austin described as perlocutionary in nature, that is to say that their effects consist of their causal consequences, of their ability in convincing readers and listeners to adopt

33 Supra nn.5 and 6. 34. The next thread in this argument draws on some ideas in John Forrester,

The Seductions of Psychoanalysis (Cambridge: Cambridge University Press, 1990), in particular the chapter "What the psychoanalyst does with words", but with more exploration of J.L. Austin's work.

35 R.A.V.v. CtyofSt. Paul, 112 S.Ct 2538 (1992); Texas v. Johnson 491 US 397 (1989).

36 Writing in the OJLS review article of Mackinnon, supra n.4.


certain views, rather than their being the illocutionary or performative sort of act which form the classic speech acts. According to Sadurski, the fact that speech has this persuasive effect is no reason to forbid its publication, because to do so would be to deny the au tonomy or individual responsibility of the hearers. He maintains, that is to say, that perlocutionary utterances are classical examples of speech, rather than speech acts, and thus should benefit from the traditional justifications of free speech.

Sadurski seems to be suggesting that, although some words may function as acts, there are still whole classes of statements which, like "the college is on fire", may be true or false, but seem not to be actually performing anything. That is why, it is claimed, it is wrong for the German legislature to create the criminal offence of denial o f the H o l o c a u s t - an example of what Austin termed a constative statement, like "the college is on fire" or "the cat sat on the mat", one which purports to describe a state of affairs. These are not actions; therefore they should not be punished as such. The speech act sceptic, or liberal, might then claim that the best way to deal with such outrageous claims is, in the words of Justice Brandeis, 37 "more speech", which intelligent people will work out for themselves. There are several answers to this.

One is that sometimes intelligent people do not work it out for themselves. Another is that those victimised by such claims are often in no posit ion to respond, through fear or "silencing", as in the circumstances of Jersild v. Denmark, 38 where the victims o f the skinheads' statements were too frightened to reply. But Austin takes us further here too. For, according to Austin, it is not just obvious performative or illocutionary statements which act: perlocutionary

37 Writing in Whitney v. California (a pillar of the temple of first amendment jurisprudence) which concerned the prosecution of Anita Whitney, under the California Criminal Syndicalism Statute, for her participation in meetings of the California Communist Labor Party convention. In a separate concurring opinion Justice Brandeis, joined by Justice Holmes, wrote: "The fitting remedy for evil counsels is good ones .... No danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence" (emphasis in original): Whitney v. California 274 US 357, 377 (1927).

38 Supra n.7.


statements can do so too, and can have a vigorous impact. For example, imagine promising (a performative) to do something, and not doing it. The promise is what Austin would have termed infelicitous or unhappy - - for the conventions of promising require that you keep your word - - but it is still a performative. But suppose you simply say you have done something when, in fact, you have not. You are making a false statement: but is this so different in kind from your false promise? "The insincerity of an assertion is the same as the insincerity of a promise," writes Austin. 39 In order to see the executive power of language we must look at the way it transforms situations in which it occurs. Sadurski suggests that, to count as an iUocution, a statement must count as a verdict on that matter: to use John Searle's terminology, it must be based on "institutional facts". 40 According to Sadurski, the utterances of pornographers and racists are ineffective as illocutions if they are not recognised to have a "special authority", or the intention to issue a set of rules of conduct in that area. But what could this mean? The strength of speech as act depends on its immediate transformative capacity. When a marriage takes place or when war is declared (performatives or illocutionary acts) the world is not the same as it was before. But neither is it the same when some "revisionist" historian (e.g. David Irving) gets up in Munich and says, "there were no gas chambers at Auschwitz". A verbally aggressive act hurtful to many people has taken place and perhaps a doubt sown in the minds of others. This fact is underlined by the atavistic rather than representational, by the distorted, defaced and essentially violent character of hate speech, whose effects are not merely persuasive in nature. So, for Matsuda, speech enacts domination and constitutes its addressee at the moment of u t t e r a n c e - - it does not produce injury as a consequence. Thus, the strength of Sadurski's argument is lost if the distinction between perlocutionary and illocutionary acts collapses, as indeed Austin recognised could be the case. The suggestion here is that there are good reasons for accepting Mackinnon 's argument for ditching First Amendment protection for these types of expression altogether on the basis that they are not "only words" or protected speech

This is not to go so far as to say there is no such thing as objective accuracy, or even truth, that it is impossible for a statement ever to

39 Austin, supra n.11, at 50. 40 John Searle, Speech Acts: An Essay in the Philosophy of Language (Cambridge:

Cambridge University Press, 1969), 33-42.


correspond to the facts. Rather, it is to say that objective accuracy is immaterial to a statement's social power, which is why the old "usual suspects" I mentioned at the outset are so irrelevant. When we look to a theoretical basis for expression, we should not look to its ability to help us find the truth, but rather to the actions it performs. To give an example: imagine two applicants for a job. One is brilliant, the other mediocre. But while many say the mediocre applicant is brilliant, no one says the brilliant applicant is better than mediocre. Who gets the job? The paramount demand is to look to the community where the language is felicitous (where it succeeds in doing something, in this case securing the job for the mediocre applicant). Whether saying or doing things, words always enact their speakers. Words produce reality when they say things, as well as doing them.

Austin's work is particularly striking when applied to revolutionary situations. In his well-known analysis of the American Declaration of Independence, 41 Derrida pays homage to the ways an Austinian speech- act perspective on historical upheaval dismantles classic understandings of representation. The delegates in Philadelphia in 1776 faced a problem. Their declaration begins with the American people, although there could be no such people until they had ended what they were to begin, i.e. written and signed the Declaration: "We, therefore, the representatives of the American people in General Congress assembled do in the name and in the authority of the good people of these free and independent states ...". 42 But when the statement was written there was no American people, no free and independent states. The people writing the statement could only do what they did in writing the statement after they had actually written it. The signature invented the signer who patently had to have been invented before signing: as Derrida writes, "[W]e cannot determine whether independence is stated or produced by this utterance. ''43 The Declaration aptly exemplifies the ambiguity of language, as well as the work that it does.

So, in summary, Austin's targets are, first, a positivist notion which characterises language as consisting in poor approximation to scientific statements, and, second, blindness to the work that language does. Austin's broadly legalistic philosophy thus converges with a communal

41 J. Derrida, "DLclarations d'Ind~pendence", Otobiographies (Paris: Galilee, 1984), 13-22, at 17.

42 Derrida, supra n.41, at 18. 43 Derrida, supra n.41, at 18.


notion of intersubjectivity, and with a quasi-religious view of the pre- eminence of the w o r d - themes we find repeated and reworked in Lacan's conception of psychoanalytic discourse, in the context of which he speaks of the symbolic law embodied in language, of the primary social function of the password. Both Austin and Lacan refuse to take a functionalist account of communication as the basic category for the analysis of utterances.

The Transforming Power of the Speaker

Another very common conception of language that is undermined by the Austinian and Lacanian accounts is that the speaker and hearer are in a symmetrical position. If speaking is acting, then only one party can commit that act and certain acts will undercut the supposed freedom of the listener in the very act of their utterance, as Austin's category of perlocutionary speech acts illustrates. Lacan's approach is to concentrate on certain classes of speech act in which pronouns behave in a rather odd way - - something he calls "founding speech" - - archetypally a form of naming of the Other that is also a transformation of the subject. Founding speech transforms both parties in the act of saying:

The form in which language is expressed itself defines subjectivity... [I]t refers itself to the discourse of the other. As such it is enveloped in the highest function of speech, in as much as speech commits its author by investing the person to whom it is addressed with a new reality, as for example, when by a ~You are my wife" a subject marks himself with the seal of wedlock. This is in fact the essential form from which all human speech derives rather than the form at which it arrives. 44

The Other is transformed: but the crucial aspect of founding speech for Lacan is that the subject is also transformed. Such propositions ("You are my wife") necessarily imply another proposition, "I am your husband." These are certainly speech acts in Austin's sense, even though they do not include performative verbs - - indeed they go beyond those acts he studied most closely in necessarily implicating both the subject and the other in the act. Lacan's category of founding speech goes one stage further than Austin's description of speech acts, albeit in the same direction: founding speech is an invocation in which the I and the you are simultaneously modulated. Can this not work in a legal framework?

44 Lacan, supra n.17, at 298.


Writers such as Matsuda have stressed the transformative power of speech. The speech of the neo-Nazi skinheads in Jersild does not necessarily transform the victim listener into what they are derided for being, but it does create a victim, witnessed by the fact that there were no complaints to the radio station broadcasting the p r o g r a m m e - - not because no-one was offended, but because the victims were scared to complain: a silencing. It also identifies the skinheads as racist thugs.

4. A Politics of the Performative

A different approach to the problem of hate speech, but one which provides a critical response to Austinian speech-act theory as well as drawing widely on works of literary theory, psychoanalysis and philosophy, comes from Judith Butler. In Excitable Speech, 45 Butler questions the presumption made by theorists such as Delgado and Matsuda, that hate speech succeeds in contributing to the social construction of the one it addresses. Butler offers an alternative view of the performative which, instead of isolating the speaker as a culpable agent, prefers to understand the performative as a renewable action without a clear origin or end, so that speech is constrained neither by a particular speaker nor by its original context. Thus Butler contests the notion of the speaker as sovereign (presumed by the Austinian account of the performative) as well as Matsuda's assertion that hate speech is effective in creating victims. Instead, following Derrida, Butler suggests that the force of such speech need not consist in its maintenance of the established context of authority but rather that the breaking with these may constitute its force. Thus, claims Butler, there can be invocations which are insurrectionary, where the force of the performative in fact derives from its decontextualisation. 46 Butler suggests that there can be resignifications Q improper uses of the performative which succeed in producing the effect of authority. She gives the example of gays rallying under the sign of "queer". Thus, for Butler, "IT]he word that wounds becomes an instrument of resistance in the redeployment that destroys

45 Supra n.6. 46 Here Butler acknowledges that she takes her cue from Derrida's essay,

"Structure, Sign and Play in the Discourse of the Human Sciences", in J. Derrida, Writing and Difference (London: Routledge, 1978).


the prior territory of its operation. "4y But this reworking takes place within the social and cultural struggle of language rather than by state sponsored censorship.

Furthermore, Butler expands her attack on regulation of hate speech by the state by employing a Foucaultian notion of censorship as producing speech. Hate speech, writes Butler, is produced by the l a w - a Supreme Court judgement produces a burning cross as an emblem of intelligible, protected speech. Similarly, the 1994 Congressional Statute on Gays in the Military (Don't Ask, Don't Tell) which attempted to render self-ascriptive homosexual speech unspeakable, as proscribed conduct, in fact produced a figure of homosexuality and so established a norm by which military subjectification proceeds. Thus, she asserts, censorship is a productive rather than a restrictive power as has been traditionally thought. It produces a discourse of its own.

So, for Butler, state censorship of hate speech is objectionable not just because it allows the state too much power in the creation of a language of hate speech, but also because it "forecloses" 4s the possibility of reworking the speech act against the force of the injury, as well threatening practical politics. She criticises writers such as Matsuda for being na'~ve in their approach to state regulation of speech, seeing them as too ready to minimise the possibility of a reappropriation by the law (such as the language of homosexuality in the context of gays in the military) because they tend to view the law as politically neutral and malleable: they see it as a possible conduit for a Habermasian ideal speech situation where no-one's speech is silenced by "words that wound". 49

Thus Butler's work presents an important challenge to the argument of this paper. This challenge would appear to operate at two levels. First, it is not clear to what extent Butler actually accepts the notion that speech acts may function as illocutions. On the one hand, she expresses scepticism about accounts which conflate speech and act, 50 thus seeming to attack Austin (although she provides little in support of this claim). Elsewhere, however, her criticism seems to be directed towards accounts

47 Butler, supra n.6, at 163. 48 A term which Butler borrows from the language of psychoanalysis - - it is

used by Lacan as well as by Laplanche and Pontalis. 49 Butler critiques a Habermasian notion ofconsensual speech in supra n.6, at

86-89. 50 Butler expresses such a view in supra n.6, at 102.


which present speech acts as always efficacious, seeming to suggest that there are many examples of failed performatives w a claim which Austin would, of course, have accepted - - such as the hate speech which does not in fact succeed in constituting its object as victim, thus leaving the way open to a critical response. Since Butler writes of reworking a theory of the pe~ormative, one assumes that her theory is based on the latter, but her approach is equivocal. Second, Butler generally seems to oppose the state regulation of speech, seeing it as a censorship that itself "produces" an undesirable type of speech which works against a critical refiguration of hate speech by those attacked by it in the first instance. Although Butler's arguments seem initially distant from those "usual suspects" offered by liberal theorists, on a closer examination, she in fact shares much with t h e m - a distrust of state censorship and official discourse (even if these undesirables are recast by Butler as examples of productive rather than repressive power). Butler also seems to display a faith in the ability of language to revitalise itself, to run against the grain, indeed to "work itself pure", which has much in common with liberal optimism in "the market place of ideas" and the salutary powers of free speech. Butler's belief in refiguration also relies on the ability of victimised groups to rework and redirect offensive ideas against their perpetrators, confident that offensive structures may be destroyed through such novel reiteration. However, she offers little evidence in support of such optimism - - and evidence is surely required in the face of the more detailed records of injury, victimisation and ultimately silencing offered by such writers as Delgado and Matsuda. Thus, although Butler's work is heavily engaged with the theories which are the focus of this paper and although she provides an important reworking of speech act theory, I submit that her arguments for a politics of the performative are not fatal to those who argue in favour of the regulation of hate speech.

5. Adieu: a Final Example

An excellent example of contrasting interpretations of the function of language is given by Sandy Petrey, in his analysis of Balzac's novella, Adieu, written in 1830. 51 Petrey's analysis is particularly valuable in undermining the old notion that expression communicates and thus

51 Sandy Petrey, SpeechActs and Literary Theory (London: Routledge, 1990).


supports the arguments I have offered. But first the basic plot o f Adieu must be outlined.

Adieu is a story in three parts, the first of which sets the scene. While out hunting, Philippe de Sucy, a former officer in Napoleon's army, sees a woman who appears completely deranged and whose ability to speak is limited to continuous repetition of "Adieu". On the sight of her Philippe faints away, for this is no ordinary mad woman but the countess Stephanie de Vandi~res, the former love of his life. Their last meeting was seven years earlier, at Napoleon's tragic retreat from Moscow. The second part of Adieu takes us back in time and describes those tragic events in detail, concluding with their last sighting of each other as Philippe, unable to rescue Stephanie and her husband from the Russian attack at the Berezina river, has to watch as Stephanie floats away from him on the icy river. Her husband falls overboard and dies and there is nothing Stephanie can do but shout a final "Adieu" as Philippe collapses on the riverbank from cold and fatigue. The third part, entitled "The Cure", describes the present and Philippe's attempt to cure Stephanie's madness. He is undeterred to learn that in the intervening seven years Stephanie has made herself sexually available to all and sundry and even refused to wear clothes altogether. But he is able to change n o t h i n g - all he gets is the odd "Adieu". Finally, driven himself towards suicidal despair, Philippe risks all. He converts a section of his property into a life sized replica of the Berezina landscape in Russia. He then brings Stephanie to relive the night she lost her mind, hoping now to restore her sanity. Alas, his attempt is in a way all too successful. She does regain her reason, recognises Philippe and says she loves him, but then utters a final "Adieu" and falls dead. Philippe, unable to live without her, kills himself.

Now, what to make of this? Here is one interpretation presented by Petrey. In an introduction to the work by Pierre Gascar, Gascar highlights the gripping realism of Adieu's representations o f war. According to Gascar, Balzac's battle scenes "suffice to give war its real face: that is its contemporary face.. . Balzac inaugurates the modern form of horror. ''52 Gaspar takes it for granted that literature can be realistic. For Gaspar, this text's achievement is therefore supremely referential. This is one view of the capability of language which I have been trying to undermine in this paper.

52 Pierre Gascar, "Pr6face" to Honor6 de Balzac, Le Colonel Chabert suivi de Trois Nouvelles (Paris: Folio, 1974), 12.


Others have criticised this view. A year after Gaspar's article, Shoshana Felman severely criticised the Gaspar reading in an essay 53 which applies deconstruction and psychoanalysis to the text in which Gaspar found realism and historical veracity. Felman notes that the Gaspar reading requires us to ignore most of Adieu, namely those parts which deal with Stephanie and her madness, in order to focus solely on the middle section which deals with men and the more virile subject of war. Felman writes: "[W]hat then is this realism the critic here ascribed to Balzac if not the assumption (not shared by the text) that what happens to men is more important and more real than what happens to women? ''54 Felman continues: "[T]o [Philippe's] demand for recognition and for the restoration of identity through language, through the authority of proper names, Stephanie opposes, in the figure of her madness, the dislocation of any transitive, communicative language, of 'propriety' as such, of any correspondence or transparency joining 'names' to 'things,' the blind opacity of a lost signifier unmatched by any signified, the pure recurrent difference of a word detached by both its meaning and context." 55 There is clearly much that is Lacanian in this reading.

In contrast, what can pure speech act criticism can do with the text? For speech act theory, Petrey suggests, the fact that Balzac wrote about war in a new way is what is significant and indeed counts much more than whether he described it accurately. Yet Adieu is also embedded in the historical setting it simultaneously denounces and re-enacts. Petrey suggests that Article 213 of the Napoleonic Code provides the context in which to assess this writing as performative act. This reads, "[T]he wife owes obedience to her husband." Elsewhere the code states that "the wife's unfaithfulness implies more corruption and has more dangerous effects than the husband's". Both these provisions at first sight seem to describe without prescribing, wanting to be merely constative without performing. However, Article 213 works much in the same way as Derrida's description of the American Declaration of Independence. For the constative is always also performative and this seeming statement of fact was in collaboration with the prescriptive language through which early 19th century French society policed and controlled its members.

53 Shoshana Felman, "Women and Madness: The Critical Fallacy", Diacritics 5:4 (1975), 2-10.

54 Felman, supra n.53, at 6. 55 Felman, supra n.53, at 9.


When Stephanie finally becomes sane she can no longer bear to live in a society where she has broken the conventional moral code. Thus, a speech act analysis allows for some historical truth but immediately goes on to subject that historical truth to an analysis as a speech act.

6. And So?

What conclusions may be drawn from the psychoanalytic and speech act interpretations of language which have been considered here? This paper started by considering the discontent of certain liberals with European laws which banish certain kinds of speech. These are seen as violating the principle of free speech which is considered sacrosanct. Why? Because of certain assumptions which liberals make about speech and language itself. These are seen as justifying a presumption in favour of speech - - a sort of prima facie case. What were the theoretical bases for these assumptions? A belief that speech is transparent in nature, an aid to communication, that it corresponds with something "out there"; and also the belief that free speech helps us to establish what is true or false, not just generally, but also to establish the truth about ourselves, to realise ourselves.

This paper has attempted to investigate other visions of speech and language. By exploring Lacan, one may attack the view that language is coherent, communicative and transparent. It is not. More often than not, it confuses, it degrades the objects it supposedly represents. The work of J.L. Austin is valuable because of its emphasis on the work that speech does. In this way we no longer ignore the harm of speech by dressing it up as ideas and only ideas. Speech is not only words, as Catherine Mackinnon reminds us. Indeed, and by way of a conclusion, Freud reminds us of the power and complexity of language:

Words were originally magic and to this day words have retained much of their ancient magical power. By words one person can make another person blissfully happy or drive him to despair, by words the teacher conveys his knowledge to his pupils, by words the orator carries his audience with him and determines their judgements and decisions. Words provoke effects and are in general the means of mutual influence among men. 56

56 Sigmund Freud, Introductory Lectures on Psychoanalysis, ed. James Strachey (Harmondsworth: Penguin, 1973), 41.

Psychoanalysis, speech acts and the language of “free speech

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