This is a preview of subscription content, log in via an institution to check access.
References
Arguments based on truth are considered later in this paper. An autonomybased 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”, inPolitical 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 hisEssays, 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).
In Germany the “Auschwitzlüge” 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 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 hatted.”
Ronald Dworkin, “Should the Wrong Opinions be Banned?”,Independent 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).
Judith Butler's recent workExcitable Speech (London and New York: Routledge, 1997) is a notable exception and is considered below in detail. See also Mackinnon,supra n.5; R. Delgado, “Words That Wound”,Harvard Civil Rights-Civil Liberties Review 17 (1982), 133–81; Rae Langton, “Speech Acts and Unspeakable Acts”,Philosophy and Public Affairs 22:4 (1993), 293–330, for a speech act approach to pornography.
Or a statement such as those made inJersild v.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).
.
Toni Morrison, 1993 Nobel Lecture,Literature Today, 5–8, at 6.
The U.S. case ofR.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., “place 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).
J.L. Austin,How to do Things with Words (Cambridge, Mass.: Harvard University Press, 1962).
John Milton,Areopagita (1644) (London: J.M. Dent & Sons; Everyman ed., 1928), 23–38; J.S. Mill,On Liberty (Harmondsworth: Penguin, 1962), ch. 2.
InAbram 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.”
A point made by Schauer in F. Schauer,Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982), 21.
As Stanley Fish argues inThere's no such thing as free speech and it's a good thing too (New York: Oxford University Press, 1994), 104.
J. Lacan,The Seminar of Jacques Lancan, Book III, trans. John Forrester, ed. Jacques-Alain Miller, (New York: Norton, 1988), 255.
Published in J. Lacan,Ecrits (Paris: Seuil, 1966), 237–322.
See hisTractatus Logico-Philosophicus (London: Routledge and Kegan Paul, 1961).
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”, inLogic, Semantics, Metamathematics (Oxford: Clarendon Press, 1956), 152–278.
Russell remarked, “Hegelians who love synthesis will probably conclude that he wore a wig”: “On Denoting”, inLogic and Knowledge, ed. R.C. Marsh (London: George Allen & Unwin, 1954), 41–56, at 48.
J. Lacan,The Seminar of Jacques Lacan, Book I,.
, at 56.
Hegel,Phenomenology of the Spirit, trld. A.V. Miller (Oxford: Clarendon Press, 1977), Section A, Pt. I, paras 90ff and 58ff.
Lacan's position, of course, owes something to the work of Saussure, who noted in hisCourse 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.
W.V.O. Quine,Word and Object (Cambridge: MIT Press, 1960), at 54.
, at 502.
, at 153.
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.
S. Freud, “Parapraxis”, inIntroductory Lectures on Psychoanalysis, trld. James Strachey (Harmondsworth: Penguin, 1973), chs. 2–4.
M. Bowie,Lacan (London: Fontana, 1991), 62.
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 R. Dworkin in “The Coming Battles ower Free Speech”,New York Review of Books (1992), 56–57.
, at 517.
and 6.
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.
R.A.V. v.Cty of St. Paul, 112 S.Ct 2538 (1992);Texas v. Johnson 491 US 397 (1989).
Writing in theOJLS review article of Mackinnon,.
Writing inWhitney 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).
Supra n.7. Or a statement such as those made inJersild v.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).
, at 50.
John Searle,Speech Acts: An Essay in the Philosophy of Language (Cambridge: Cambridge University Press, 1969), 33–42.
J. Derrida,“Déclarations d'Indépendence”, Otobiographies (Paris: Galilée, 1984), 13–22, at 17.
, at 18.
, at 18.
Lancan,, at 289.
Supra n.6. Judith Butler's recent workExcitable Speech (London and New York: Routldge, 1997)
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).
Butler,supra n.6 Judith Butler's recent workExcitable Speech (London and New York: Routledge, 1997), at 163.
A term which Butler borrows from the language of psychoanalys—it is used by Lancan as well as by Laplanche and Pontalis.
Buler critiques a Habermasian notion of consensual speech insupra n. 6, Judith Butler's recent workExcitable Spech (London and New York: Routelage, 1997) at 86–89
Butler expresses such a view insupra n. 6, Judith Butler's recent workExcitable Speech (London and New York: Routldege, 1997) at 102.
Sandy Pettrey,Speech Acts and Literaty Theory (London: Routledge, 1990).
Pierre Gascar, “Préface” to Honoré de Balzac,Le Colonel Chabert suivi de Trois Nouvelles (Paris. Folio, 1974) 12.
Shoshana Felman, “Women and Madness: The Critical Fallacy”,Diacritics 5:4 (1975), 2–10.
Felman,, at 6.
Flman,, at 9.
Sigmund Freund,Introductory Lectures on Psychoanalysis, ed. James Strachey (Harmondsworth: Penguin, 1973), 41.
Author information
Authors and Affiliations
Rights and permissions
About this article
Cite this article
Douglas-Scott, S. Psychoanalysis, speech acts and the language of “free speech”. Res Publica 4, 29–50 (1998). https://doi.org/10.1007/BF02334931
Issue Date:
DOI: https://doi.org/10.1007/BF02334931