Winter 1997
Volume 23, Number 2

What happens when we seek recourse to the state to regulate such speech? In particular, how is the regulatory power of the state enhanced through such an appeal? This is, perhaps, a familiar argument that I hope to make in a less than familiar way. My concern is not only with the protection of civil liberties against the incursion of the state, but with the peculiar discursive power given to the state through the process of legal redress.

I would like to suggest a formulation for the problem that might seem paradoxical, but that I think, even in its hyperbolic mode, might shed some light on the problem that regulating hate speech poses. That formulation is this: the state produces hate speech, and by this I do not mean that the state is accountable for the various slurs, epithets, and forms of invective that currently circulate throughout the population; I mean only that the category cannot exist without the state's ratification, and this power of the state's judicial language to establish and maintain the domain of what will be publically speakable suggests that the state plays much more than a limiting function in such decisions; in fact, the state actively produces the domain of publically acceptable speech, demarcating the line between the domains of the speakable and the unspeakable, and retaining the power to make and sustain that consequential line of demarcation. The inflated and efficacious utterance attributed to hate speech in some of the politicized contexts discussed above is itself modeled on the speech of a sovereign state, understood as a sovereign speech act, a speech act with the power to do what it says. This sovereign power is attributed to hate speech when it is said to deprive us of rights and liberties. The power attributed to hate speech is a power of absolute and efficacious agency--performativity and transitivity at once (it does what it says and it does what it says it will do to the one addressed by the speech). This power of legal language is that to which we refer when we call upon the state to effect the regulation of offensive speech. The problem, then, is not that the force of the sovereign performative is wrong, but when used by citizens it is wrong, and when the state intervenes with its citizens, the force of the performative is, in these contexts, right.

Judith Butler is professor of rhetoric and comparative speech at the University of California at Berkeley. Author of Gender Trouble: Feminism and the Subversion of Identity (1990) and Bodies That Matter: On the Discursive Limits of "Sex" (1993), she just completed Excitable Speech, which will appear in 1997.