December 13, 2010
What those who demand a man’s murder are doing, however, is not merely stating facts or lies, opinions or observations. In voicing what the philosopher J. L. Austin called “performative utterances,” they are acting. These are not statements that can be true or false; they are “speech acts.” When a military officer orders his men to go into action, he is not exercising free speech so much as he’s issuing a command. Moreover, he is held responsible under the Uniform Code of Military Justice and the Geneva Conventions for his orders. When Ayatollah Khomeini issued the death sentence on Salman Rushdie, he was not giving an idle opinion but instructing those who accepted his proclamations to take action. When Al Capone told one of his heavies to rub somebody out, that heavy had to do some quick rubbing or be rubbed out himself. If someone comes to your house with a firing squad and declares, “Ready, aim, fire,” the First Amendment would be no defense in court against a murder charge.
The idea that incitement to murder is permissible free speech was expressly condemned by, of all agencies, the Coalition Provisional Authority in Iraq in July 2003. It shut down the Al Mustaqila newspaper for urging death to “spies and those who cooperate with the U.S.” One of the State Department members of the C.P.A. at the time was Bill Stewart, who is now the Deputy Chief of Mission at the U.S. Embassy in Stockholm. (We may read via some future leak what he said to the Swedes regarding their prosecution of Julian Assange for ostensible crimes against two women who chose to go to bed with him.)
Some people may believe Sarah Palin and Fox News” “experts” as much as some Muslims believed Khomeini. If anyone had murdered Rushdie (and a few tried), Khomeini could not deny responsibility. The United States Supreme Court has recognized the fact that speech is sometimes an action in itself. In Virginia v. Black et al., Justice Sandra Day O”Connor wrote the majority opinion:
We have consequently held that fighting words “ “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction” “ are generally proscribable under the First Amendment….And the First Amendment also permits a State to ban a “true threat.”
Therefore, I call upon prosecutors in the states where public figures have demanded Julian Assange’s assassination to investigate whether these incitements to murder may be prosecuted. This is my performative utterance, and I hope the Attorneys General will act on it before some idiot with a deer rifle takes it into his head to follow the recommendations of Palin, Flanagan, Beckel, et al.
