Genocidal Speech and Speech Act Theory

Abstract 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.