This is a follow-on from yesterday’s post.
Another category of expression that Mill’s arguments do not seem to apply to are what Austin called ‘illocutionary acts’1; acts of expression that perform some particular action by virtue of its utterance; like promising, commanding or saying a wedding vow. Suppose I sign a deed that commits the ownership of my house to someone else. My agreement is an act of expression; I intend to communicate that I now believe my house belongs to them. It is my agreement itself that passes the ownership to someone else. If I change my mind after doing so then I am in trouble; my having already signed the deed means that they now own my house. Now, as with abusive slurs, illocutionary acts have no truth-value (or are ‘true’ by virtue of them having been performed) so it does not seem that they are relevant kinds of expression to what Mill is arguing for, as Jacobsen notes:
“It is not the freedom to express that opinion in any context whatsoever, because in certain contexts such expression constitutes incitement, conspiracy, or fraud. This conception is motivated by the rationale for defending free speech, which necessitates giving immunity to expressive acts but does not extend to other types of illocutionary act. Indeed, this is precisely the point of drawing the distinction between opinion and action as Mill does. He can therefore claim to defend free speech as an unqualified liberty, despite the exceptional cases, precisely because there is no opinion whose expression can be prohibited.”2
According to Jacobsen then, this is not a weakness in Mill’s argument but a strength, since these sorts of acts would otherwise present a defeating objection to his idea that freedom of expression is an ‘unqualified liberty’. I think this is right; illocutionary acts are not things we would want to leave unregulated. If someone pays a hitman to kill another person, we want that person (along with the hitman) to be severely punished. The act of giving money to the hitman is an act of eliciting murder. Perhaps money changing hands is not a kind of ‘expression’. It does not itself communicate anything; one would have to accompany the payment with some kind of instruction, and that would be the expression in question. Even so, would that distinction justify us in thinking that giving someone else an instruction to kill another person (even if there was no payment involved) should be left unrestricted? It seems to me that it does not. A fortiori, if I con someone out of some money by lying about my identity and my intention then this act of fraud is itself an act of expression that would be wrong to leave unregulated.
With such acts, it seems right that our defence of freedom of expression leaves them uncovered. However, the restrictions that they are susceptible to are content-based restrictions. This seems to pose a problem for our principle. If there are some acts of expression should be restricted on the basis of their content, then that undermines the idea that we should have freedom of expression in the sense I have laid out. I do not propose an easy answer to this problem, but I do feel that intuitively there is a difference between the kind of act that constitutes hate speech (say) and the kind of act that constitutes fraud. We might say that illocutionary acts are not covered by freedom of expression. To justify this move (which may seem to be an unwarranted dismissal), recall the distinction I made earlier between expressive acts and acts of expression. Now, an illocutionary act is both of these, but if we want to restrict such acts, we do not restrict them as a result of their expressive content but rather on the basis of the illocution itself. So if I fake my identity in order to trick someone out of some money, I am penalised for the act of fraud rather than for simply having expressed myself in terms of my new identity. I think there is more to say here, but I see this issue as related but tangential to my primary purposes, so I won’t bother going into more detail. So even though Mill’s arguments do not cover illocutionary acts, in my view these do not need to be covered by freedom of expression at all. This is not true of worthless expression, and so I need to provide non-consequentialist rights-based arguments for why worthless expression should be covered by freedom of expression.
1 Austin, J.L. (1962). How To Do Things With Words, 2nd Edition, ed. J.O. Urmson and M. Sbisá. Cambridge, MA: Harvard University Press.
2 Jacobsen, D., (2000) “Mill on Liberty, Speech, and the Free Society”. Philosophy & Public Affairs, Vol. 29, No. 3 (Summer, 2000), pp. 287
