Daniel Weston

Speech act theory has been applied to genocidal speech in an extension of its use in other forms of speech regulation. I detail how a misguided reliance on speech act theoretic tools has negatively impacted legal thinking in understanding direct and public incitement to commit genocide. I argue that undue factive and normative significance has been placed on the idea that incitement to genocide may be considered an illocutionary or performative speech act, rather than as a perlocutionary act, as an inchoate crime. With attention to the role of causation in the regulation of incitement to genocide within a speech act framework, I clarify legal applications of speech act theory which have confused or displaced the appropriate questions underpinning genocidal speech regulation. In doing so, I reinforce the role of causation with respect to inchoate speech crimes, and particularly the potential merits of a preventative risk assessment model when identifying genocidal speech. I demonstrate that while these speech act accounts present unique issues for genocidal speech regulation, they also in part stem from prior work applying speech act theory to other speech crimes such as hate speech and pornography.

The truth-justification is an enduring explanation for valuing free speech. This paper seeks to advance an account of “assertion”, found in speech act theory, that can identify speech which contributes to truth-discovery in a nuanced way. I apply the dialectic theory of assertion which emphasises the language game of giving and asking for reasons to believe things as assertional social practice. In doing so, I consider what “moves” in this game make sense from a truth-discovery perspective, drawing together contemporary and foundational work on assertion in linguistics to fit the normative context of law. Speech act theory is often invoked in current free speech literature to identify regulable speech, but less typically to identify speech that warrants legal protection. I contextualise my theory within this existing legal work and show how the model I advocate for applies across many formulations of the truth-justification to offer comprehensive explanatory and justificatory power. I also explore the potential appeal of alternative theories of assertion and explain why they are a poor fit in comparison to the dialectical account.