Free speech and illocution

Legal Theory

Volumn 4, Issue 1, 1998, Pages 21-37

  Hornsby, Jennifer ^a   Langton, Rae ^b  

^a UNIVERSITY OF LONDON   (United Kingdom)

^b AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 3142517288     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325200000902     Document Type: Article

References (35)

1. J.L. Austin, HOWTO Do THINGS WITH WORDS (2nd ed. 1962).
2. Writers including MacKinnon, Langton, and Hornsby {see infra notes 3-5). The claim that Tree speech includes free illocution” is our own summary of one of the ideas common to these three authors (though we do not say that MacKinnon would wish to formulate the claim in this way).
3. D. Jacobson, Freedom of Speech Acts? A Response to Langton, 24 PHIL. & PUB. AFF. 64 (1995).
4. R. Dworkin, Liberty and Pornography, N.Y. REVIEW OF BOOKS, August 15, 1991. (A nearly indistinguishable paper, on which this is “based,” is Two Concepts of Liberty, in ISAIAH BERLIN: A CELEBRATION (E. & A. Margalit eds., 1991).) The assumption was exposed in Hornsby, Freedom of Speech Acts? A Response to Langton note 4. It is present in Dworkin's later work, which we consider briefly in part 4 below.
5. Whereas the whole ofJ.S. Mill, ON LIBERTY (1859) can be read as a defense (inter alia) of free expression, Chapter 2, Of the Liberty of Thought and Expression, can only be read as a defence of free speech proper. SeeF. Schauer, FREE SPEECH: A PHILOSOPHICAL ENQUIRY (1982).
6. Much confusion has resulted from Austin starting from a particular notion of a performative-“Mark I performatives” as they are called by GJ. Warnock, Some Types of Performative Utterances, in ESSAYS ON J.L. AUSTIN (I. Berlin et al eds., 1977). Mark I examples are all of formulae used in institutionalized procedures. This starting point led Austin to associate the idea of convention with the idea of illocution generally. See further J. Hornsby, Things Done with Words, in LANGUAGE DUTY AND VALUE (J. Moravcsik et al eds., 1988).
7. In J. Hornsby, Illocution and Its Significance, in FOUNDATIONS OF SPEECH ACT THEORY (S L Tsohatzidis ed., 1994). This provides a fuller account of the speech-act theoretical material relevant here.
8. The idea that to “fully succeed” in certain acts, recognition on a hearer's part is necessary is inJ.R. Searle, SPEECH ACTS: AN ESSAYINTHE PHILOSOPHYOF LANGUAGE 47 (1969). In the present paper, we use “to do the illocutionary act of X-ing” (and variants) to mean what Searle meant by “fully succeed in X-ing.” Langton herself sometimes used just “to X” {see infra, note 18).
9. These examples are discussed in Langton, The idea that to “fully succeed” note 3, where the argument of this and the following part is given in more detail. The example of the “low type” revolutionary is from Austin, The idea that to “fully succeed” note 1, at 239-40. The example of the actor who shouts “Fire” is from D. Davidson, Communication and Convention, in INQUIRIES INTO TRUTH AND INTERPRETATION 269 (1984).
10. See MacKinnon 1993, These examples are discussed in Langton note 5, at 63-8.
11. These examples are discussed in Langton note 5 note 6, at 78.
12. Austin, These examples are discussed in Langton note 5 note 6 note 1, at 115. Jacobson, These examples are discussed in Langton note 5 note 6 note 6, at 73. Jacobson thinks that Austin “overstates things.” Well, we noted These examples are discussed in Langton note 5 note 6 (where note 14 is flagged) that verbs for illocutionary acts, like “warn,” may be thought to have application even where the hearer does not take the speaker to be warning. We advocated putting Austin's point by saying that no illocutionary act of warning is performed unless there is uptake. Put that way, the danger of overstatement goes away. Interpreting her remarks in their context, Langton, when she says that the speaker does not refuse, can easily be read as meaning that there is no illocutionary act of refusal (in the sense we give that here).
13. Jacobson, These examples are discussed in Langton note 5 note 6 note 1 note 6, at 72 and 73.
14. Id at 76.
15. 7dat74.
16. Id. In P.F. Strawson, Intention and Convention in Speech Acts, 73 PHIL. REV. 439 (1964), it is said that the aim, not the achievement, of securing uptake is essential to the illocutionary act (We think that Strawson was registering appreciation of a point we acknowledged in the text 7dat74-about what appear to be necessary conditions for the application of words like “warn” or “refuse.”) Jacobson says that he will use only a weaker claim than Strawson's, that “at most the aim of securing uptake… is required” {id. at 74). Because the issue is whether there is any further requirement, it is not clear to us how Jacobson's claim can be relevantly weaker than Strawson's.
17. Id at76.
18. What Jacobson needs is a case where Bill does not recognize that Sally intends to invite him. There could be a story in which Bill believes that the invitation was sent to him by mistake, and Austin then might well say that the invitation misfired and she failed to invite him. (More cautiously: one might well say that she failed to perform the illocutionary act of inviting; see notes 14 and 18.)
19. Jacobson wants to preserve something of the Austinian view of uptake as required for illocution, but what he himself requires is counterfactual uptake by a “competent hearer”: “[W]hat a competent auditor would take as an unambiguous warning is one” (id. at 78). The most obvious way to understand “competent hearer” here is as someone who would recognize the intended illocution. But so understood, Jacobson's apparent innovation appears to collapse into the Strawsonian view on which he claimed not to rely (see What Jacobson needs is a case where Bill does not recognize that Sally intends to invite him. note 22).
20. Id. at 77: the italics are Jacobson's.
21. See the italics are Jacobson's. note 18.
22. Jacobson, See the italics are Jacobson's. note note 6, at 71.
23. See See the italics are Jacobson's. note note 6 where note 11 is flagged.
24. In the version of ON LIBERTY printed in UTILITARIANISM (M. Warnock ed., 1962), at 180.
25. Id. at 184.
26. See Brandenburg v. Ohio, 1969: “[T] he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” As this quotation suggests, debate about what may be excluded from First Amendment protection is debate about which perlocutionary acts defeat a free-speech righL The debate always assumes (without making the distinction, it is true) that illocutionary, like locutionary, acts are protected. To say that some advocacy may sometimes be proscribed is to say that some pieces of speech intentionally have such consequences that they are then not protected. (Note that there could be no objection to treating “speech,” in this formulation, as illocution.) But the immunity that is then lost, which is an immunity Mill generally advocates, is not immunity merely to do locutionary things.
27. The question whether Dworkin can carry on with his stated defense of pornographers’ rights while allowing any genuinely egalitarian considerations to impinge as Dworkin thinks they ought to was answered negatively by R. Langton, Whose Right? Ronald Dworkin, Women and Pornographers, 19 PHIL. &: PUB. AFF. 311 (1990). (Parts are reprinted in S. Dwyer ed., See Brandenburg v. Ohio note 3.
28. Women and Pornography, N.Y REVIEW OF BOOKS, October 21, 1993.
29. See pt. II of J. Hornsby, Disempowered Speech, PHIL. TOPICS (Fall 1995).
30. On “right” in “right to free speech,” see the section “Rights and ‘Rights,'” in J. Hornsby, Free and Equal Speech, IMPRINTS 59 (October 1996).
31. Knowing of the opposition (generally speaking) between libertarian and egalitarian versions of liberalism, one may not find it surprising that a conception of free speech like ours, whose repercussions may be egalitarian, cannot rely upon a thorough going libertarian account of the right (Dworkin seems to want to have it both ways: see Hornsby “Postscript,” On “right” in “right to free speech,” note 4.)
32. See R. Dworkin, The Coming Battles over Free Speech, N.Y REVIEW OF BOOKS, June 11, 1992. In the present context, of discussions of pornography, two things make Dworkin's rhetoric here seem laughable. The first thing is the mismatch between the material with prepositional content which Dworkin is actually defending (“opinions,” “convictions”) and the pornography producers’ products which he would wish to defend {i.e., the mismatch between speech proper and “expression”: see Knowing of the opposition (generally speaking) between libertarian and egalitarian versions of liberalism, one may not find it surprising that a conception of free speech like ours, whose repercussions may be egalitarian, cannot rely upon a thorough going libertarian account of the right note 9). The other thing is the motives imputed to pornography's producers when Dworkin's defense is applied to their case-“respect and concern for others.”
33. The Coming Battles over Free Speech note 6, at 76.
34. Of course, Mill defended moral autonomy in ON LIBERTY. But he did so elsewhere than in the chapter concerned with speech {see The Coming Battles over Free Speech note 6 note 8.).
35. Here we can only gesture toward a wider free-speech literature. Democracy, of course, comes in with the famous argument of A. Meiklejohn, Free Speech and Its Relation to Self-Government (1948), reprinted in POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF THE PEOPIE (1965).