Free Speech, Speech Act Theory and “Speech Brigaded with Action”: When Does Protected Speech Become Regulable Action?

Central to any principle of free speech is some form of distinction between “speech” on the one hand and “action/conduct” on the other. I enquire into one way this distinction has been explored: via the application of speech act theory. I criticise legal applications of speech act theory which argue that some speech ought to better be understood as regulable action. Contrary to these arguments, I demonstrate that – according to the same speech act theory invoked by my interlocutors – all speech is the performance of “action” in the relevant sense. A categorical pursuit, through speech act theory, as to what speech “acts” or “does” things cannot be supported, and such a classification is a faulty foundation for legal regulation. I critique speech act-oriented, descriptive enquiries, into which speech really is “speech” and which is the performance of “actions”. Instead, I suggest that their approach does not provide a viable alternative to conducting normative, value-oriented assessments regarding what speech should be considered “speech” for legal protection. Though this debate has relevance for any principle of free speech, by virtue of a shared commitment to some form of distinction between speech and action, I focus part of my analysis on the First Amendment because it explicitly regulates speech on the basis that it is “speech brigaded with action” or a “verbal act”. This presents a worrying direct legal hook onto which these speech act arguments might hang, but, as I argue, this should be resisted. In addition to my theoretical contestation, I show that the judicial understanding of when speech becomes “brigaded with action” is irreconcilable with these speech act applications