Speech Acts and the First Amendment

What can a democratic society reasonably do about the perplexing problems of racial intolerance, sexual harassment, incitements to violence, and invasions of privacy? Is it possible to preserve the constitutional ideal of free expression while protecting the community from those who would trample on the rights of others?

Franklyn S. Haiman critically examines the reasoning behind recent efforts to prohibit certain forms of speech and explores the possible consequences to democracy of such moves.

Speech act theory, well known to scholars of rhetoric, communication, and language, underlies this emerging trend in judicial and legislative thinking. The idea that "words are deeds," first articulated in language philosophy by Wittgenstein and elaborated by J. L. Austin and John Searle, is being invoked by some members of the legal community to target objectionable speech. For example, speech codes on some college campuses prohibit racist, sexist, and homophobic expression, and attempts have been made through local laws to classify pornography as a form of sex discrimination. By defining certain kinds of arguably immoral symbolic behavior such as hate speech, obscenity, or portrayals of violence as acts rather than as pure speech, speech act advocates make it easier to argue that such conduct should be subject to social control through the law.

Unlike totalitarian or theocratic societies that see no difference between their concept of morality and the law, however, a democracy must make a distinction between what it regards as immoral and what it makes illegal. Haiman maintains that in the realm of symbolic behavior the line between them should be drawn as closely as possible to expression that results in the most serious, direct, immediate, and physical harm to others. Thus, he joins with former Supreme Court Justice Louis Brandeis in concluding that, absent an emergency, more speech, not enforced silence, should be the aim of a free society.