When Does Speech Perform Regulable Action? A Critique of Speech Act Theory’s Application to Free Speech Regulation

This paper examines the application of speech act theory to free speech regulation and criticises the idea that an understanding of speech which performs speech acts can be of use in identifying regulable speech. It traces the legal application of speech act theory from its initial uses to the more contemporary. In response, this paper seeks to demonstrate that this influential legal application reaches conclusions against the core insight of speech act theory – that all speech performs actions in the relevant, illocutionary and performative, sense. Consequently, an arbitrary method in regulating speech has taken firm hold in contemporary free speech theory, through which some speech is erroneously perceived to be more like a form of speech act than speech proper. I examine the lessons of speech act theory alongside this free speech literature to conclude that we should not ask whether an utterance is an act but instead what kind of act it is, with the goal of refocusing on normative questions pertaining to speech regulation.