speech act legal definition

This statute was unanimously passed by the US Congress in 2010 in response to libel tourism concerns, and in particular in response to UK lawsuits against an American author whose book claimed to document Saudi Arabian financing of terrorism. It partially reflects pre-existing judicial doctrines regarding enforceability of foreign judgments that conflict with the US First Amendment. The SPEECH Act has not been much litigated. The most important case to date is the 2017   EFF v. Global Equity . 

The Act precludes enforcement of non-US defamation judgments unless the party seeking enforcement can make some very difficult legal showings:

• That the foreign court applied protections consistent with the US First Amendment and relevant state law
• That even with US law protections, defendant would have lost the case 
• That the judgment is consistent with CDA 230
• That the court's exercise of jurisdiction was consistent with US due process requirements

The statute defines covered defamation claims broadly, to include "libel, slander, or similar claim[s] alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person." Following this definition, the Act may apply to claims that are rooted in privacy or other doctrines under the law of their home forums. 

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1 Speech Acts: The Contemporary Theoretical Landscape

• Published: July 2018
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This introduction is both a capsule history of major work in speech-act theory and an opinionated guide to its current state, organized around five major accounts of what speech acts fundamentally are. We first consider the two classical views, on which a speech act is the kind of act it is mainly due to convention (Austin), or to intention (Grice). We then spell out three other broad approaches, which conceive of speech acts primarily in terms of their function, or as the expression of mental states, or as constituted by norms. With these five families of views laid out, we relate them in turn to the apparatus of conversational score and discourse context; to the project of speech-act taxonomy; and to the theory of force. Last, we review applications of speech-act theory to matters legal and political, and to ethically significant phenomena like silencing, derogation, and coercion.

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Article contents

Speech acts.

• Mitchell Green Mitchell Green Philosophy, University of Connecticut
• https://doi.org/10.1093/acrefore/9780199384655.013.200
• Published online: 29 March 2017

Speech acts are acts that can, but need not, be carried out by saying and meaning that one is doing so. Many view speech acts as the central units of communication, with phonological, morphological, syntactic, and semantic properties of an utterance serving as ways of identifying whether the speaker is making a promise, a prediction, a statement, or a threat. Some speech acts are momentous, since an appropriate authority can, for instance, declare war or sentence a defendant to prison, by saying that he or she is doing so. Speech acts are typically analyzed into two distinct components: a content dimension (corresponding to what is being said), and a force dimension (corresponding to how what is being said is being expressed). The grammatical mood of the sentence used in a speech act signals, but does not uniquely determine, the force of the speech act being performed. A special type of speech act is the performative, which makes explicit the force of the utterance. Although it has been famously claimed that performatives such as “I promise to be there on time” are neither true nor false, current scholarly consensus rejects this view. The study of so-called infelicities concerns the ways in which speech acts might either be defective (say by being insincere) or fail completely.

Recent theorizing about speech acts tends to fall either into conventionalist or intentionalist traditions: the former sees speech acts as analogous to moves in a game, with such acts being governed by rules of the form “doing A counts as doing B”; the latter eschews game-like rules and instead sees speech acts as governed by communicative intentions only. Debate also arises over the extent to which speakers can perform one speech act indirectly by performing another. Skeptics about the frequency of such events contend that many alleged indirect speech acts should be seen instead as expressions of attitudes. New developments in speech act theory also situate them in larger conversational frameworks, such as inquiries, debates, or deliberations made in the course of planning. In addition, recent scholarship has identified a type of oppression against under-represented groups as occurring through “silencing”: a speaker attempts to use a speech act to protect her autonomy, but the putative act fails due to her unjust milieu.

• performative
• illocutionary force
• communicative intentions
• perlocution
• felicity condition
• speaker meaning
• presupposition
• indirect speech act
• illocutionary silencing

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Notes to Speech Acts

1. In his The A Priori Foundations of the Civil Law (1913), the Austrian jurist Adolf Reinach developed what he termed a theory of “social acts” prefiguring many of the themes of later Anglo-American work on speech acts. For an appraisal see Mulligan 1987. See also K. Schuhmann and B. Smith 1991 for a discussion of some elements of speech act theory in the thought of Thomas Reid. Smith 1990 offers a more general historical survey.

2. See Gorman 1999, however, for a detailed account of how literary theory has appropriated a distorted view of speech acts.

3. In what follows I shall use ‘utterance’ to refer to any production by an agent of meaningful words. Uses of Nicaraguan Sign Language, Morse Code, and my repetition of words I overhear from another language but do not understand all count as utterances on this permissive criterion.

4. The term ‘performative’ has been appropriated in fields outside Philosophy. For instance, social scientists sometimes describe utterances as performative on the ground that they “enact the events they describe“ (Callon 2006). ‘Leading economic indicators are positive,’ when spoken by the U.S. Federal Reserve can help to ensure that such indicators are positive. Notwithstanding the interest of the phenomenon, this usage would also treat ‘This sentence is true’ as performative, and likewise for ‘I am whispering,’ when said in whisper. To avoid confusion we will not adopt this inclusive usage. See Callon (2006) and Miller (2007) for further discussions of performativity conforming to this usage.

5. In that same article, Searle notes Austin’s definition of ‘rhetic act’ as an utterance of words with a definite sense and reference. He then points out that Austin’s examples of indirect reports of rhetic acts generally contain illocutionary verbs, such as we find in ‘He told me to get out,’ and ‘He asked whether it was in Oxford or Cambridge.’ Searle concludes that all rhetic acts are therefore illocutionary acts. Unfortunately, this conclusion depends on an over-generalization from the cases Austin considers. Another perfectly adequate report of a rhetic act is simply, ‘She said that she would be more punctual in the future.’ In this case, we have no idea whether the speaker is being described as predicting or promising or just practicing lines from a play. Searle’s conclusion (1968, p. 413) that all rhetic acts are also illocutionary acts is thus unwarranted by his argument on its behalf.

6. The absurdity that these sentences exhibit is often disclosed under the rubric of Moore’s Paradox, for further discussion see Green and Williams 2007.

7. König and Seimund (2007) provide an extensive cross-linguistic study of the interaction of illocutionary force with grammatical mood.

8. See the essays collected in Warnock 1973 for speculation about Austin’s research plans that were tragically cut short by his early death.

9. The characterization is thus analogous to the way in which some non-classical logical theories describe some proposition as being neither True nor False, but as having a third truth value, N : Evidently that is not to say that such propositions are bereft of truth value. It is difficult to discern from such accounts how one sheds light on a speech act in characterizing it as having a null direction of fit, as opposed to having no direction of fit at all. See Humberstone 1992 for a fuller discussion of the notion of direction of fit.

10. In his groundbreaking discussion of implicature, Grice (1989) appears to treat conversational implicata as cases of speaker meaning. This might encourage the view that what is implicated must also be a speech act. It may well be that some implicata area also illocutions. However, many are not. If A asks B, “Where is C,” and B replies, “Downtown somewhere,” B may well be indicating that she is not in a position to be any more specific about C’s whereabouts. However, it is doubtful that she is asserting that she is in no such position. After all, if B did know precisely where in Downtown C is, she would be misleading in responding to A as she did, but she would not be a liar. By contrast, one who asserts something she does not believe to be true has lied. Accordingly, understanding indirect speech acts in terms of implicature does not guarantee that they will turn out to be illocutions after all.

11. Millikan writes, “Natural conventionality is composed of two, quite simple, related characteristics. First, natural conventions consist of patterns that are “reproduced” in a sense to be defined. Second, the fact that these patterns proliferate is due partly to the weight of precedent rather than due, for example, to their intrinsically superior capacity to perform certain functions. That is all.” (1998, p. 162)

12. I take it that the “certain condition” Searle refers to in the passage quoted can be specified without his claim becoming trivial.

13. This terminology is misleading because according to philosophers’ usage, an act can be one of speaker meaning with no sounds uttered or even any inscriptions made. For instance two hunters with no common language might communicate with pantomime, so that when one acts out the path of attack he means, in the sense of speaker meaning, that the other is to approach the mammoth from behind. In spite of the misleading nature of the jargon of speaker meaning I shall retain it rather than introduce new nomenclature.

14. It may be that adults who seem to address pre-linguistic infants are only making as if to speaker-mean things to them, and are instead addressing themselves. It would appear that only in some cases are those adults harboring reflexive-communicative intentions toward themselves. We observe here also that Armstrong 1971 offers an account of speaker meaning in terms of objectives rather than intentions, his reason being that the latter notion is narrower than the former. One who intends a certain result must believe that the thing aimed at is within her power, while one who has that result as an objective need not do so. Presently we shall show an affinity between Armstrong’s position and that offered below. However, just replacing ‘intention’ with ‘objective’ in Grice’s account will not deal with the cases we have considered. It is not part of my objective to produce an effect in my newborn daughter in uttering the last line of Spinoza’s Ethics . Similarly it need be no part of the objective of the framed suspect in maintaining her innocence to produce effects on her interrogators. Instead she may say what she does in order to make public, for anyone who may be concerned with the matter, her avowal of innocence. Her objective is simply to establish a pattern of consistently maintained innocence.

15. Following a suggestion of Schiffer (1972, p. 15), Strawson (1970, p. 7), and Bennett (1976, p. 271), Avramides 1989 proposes in response to these kinds of case that the speaker is addressing himself, intending in particular to produce a certain cognitive effect in himself. While it may be that in the newborn daughter case the speaker is addressing himself, it neither follows, nor does it seem true, that in those cases the speaker is intending to produce any cognitive effect in himself. We sometimes address ourselves in order to produce a cognitive effect: ‘I can do it!’ as I sprint up the steep road, or ‘945–6743, 945–6743’ as I try to internalize a phone number I just got out of the phone book. However, I already believe that all things valuable are difficult as they are rare. In fact it is a belief I have held firmly since encountering it in Spinoza two decades ago, and I actively believe it as I reflect upon the number of diapers I will have changed by the time I am forty. As a result it is quite unclear what cognitive effect I might be trying to produce in myself in saying what I do. His own eyes have already done that for him. Likewise it is far from clear what belief the framed suspect might be trying to produce or strengthen or activate in herself as she maintains her innocence. The suspect knows perfectly well that she has never set foot in the part of town in which the crime was committed, and that she has no idea how to use the garotte with which the victim was killed. (Avramides’ discussion here is confusing because she first responds to a case, due to Harman, of a person maintaining a proposition in full knowledge that no one will believe him, with the words, ’I think that in Harman’s case the speaker is not really speaking to an audience at all’ (p. 64). But then two pages later Avramides writes, ‘The misleading thing about Harman’s case is that there appears to be an audience present. The speaker, however, does not really address his utterance to those present …. If this is true, why not say that in such cases the speaker intends his audience to be himself …’ (p. 66). I shall take Avramides to hold the view that in these cases the speaker does have an audience, namely himself.)

16. Hajdin 1991 argues that attending to illocutionary force and semantic content is insufficient to account for the meaning of even paradigm speech acts such as promising. His reason is that one can know that a promise that agents A and B will not, say hold hands, has been made, without knowing who is responsible for ensuring that that promise is carried out. (It might be A, B or a third party.) However, even if it is true that specifying a “force/content pair” is insufficient to answer this question, it does not follow, and is not true, that such facts about responsibility are aspects either of what is meant or how it is meant.

17. See the essays collected in Parrett and J. Verschueren 1992.

18. Artificial Intelligence research has employed the tools of speech act theory to help automated systems determine the plans of human agents. Prominent examples are the chapters in Cohen, Morgan and Pollack 1990, and Shoham 1993.

19. Adapted from Green 2000. An argument is illocutionarily sound just in case it is both illocutionarily valid and all its premises are such that their conditions of satisfaction are met. A fuller account of illocutionary validity would employ further distinctions. For example, two assertoric commitments may be alike save for differing in strength; these differences are usually described as differences in subjective probability, which could be represented as differences in the strength of commitment. Again, we could distinguish among the different possible objects of commitment, since there is nothing to rule out being committed to a question or to an imperative. These distinctions within the dimension of mode, strength and object of commitment are taken into account in Green 2000. See also Harrah (1980, 1994) for a discussion of assertoric, erotetic, and projective commitment. Observe also that the truth-preservation notion of validity may be seen as a special case of the commitment-preservation notion as follows: Treat each of the sentences in the argument counting as valid in the former sense as being put forth in assertoric mode, and treat each such sentence as declarative. Illocutionary validity is thus not a rival to the truth-preservation notion, but is instead a generalization thereof.

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Speech Act Theory

By NASRULLAH MAMBROL on October 11, 2020 • ( 0 )

Speech act theory accounts for an act that a speaker performs when pronouncing an utterance, which thus serves a function in communication. Since speech acts are the tools that allow us to interact in real-life situations, uttering a speech act requires knowledge not only of the language but also of its appropriate use within a given culture.

Speech act theory was first developed by J. L. Austin whose seminal Oxford Lectures in 1952–4 marked an important development in the philosophy of language and linguistics. Austin’s proposal can be viewed as a reaction to the extreme claims of logical positivists, who argued that the meaning of a sentence is reducible to its verifiability, that is to an analysis which verifies if utterances are true or false. Austin contended that most of our utterances do more than simply making statements: questions and orders are not used to state something, and many declarative sentences do not lend themselves to being analysed in terms of their falsifiability. Instead, they are instruments that allow speakers to change the state of affairs. This is tantamount to saying that we use language mainly as a tool to do things, and we do so by means of performing hundreds of ordinary verbal actions of different types in daily life, such as make telephone calls, baptise children, or fire an employee.

The fact that not all sentences are a matter of truth verifiability was first advanced by Aristotle who, in his De Interpretatione , argued that:

there are in the mind thoughts which do not involve truth or falsity, and also those which must be either true or false, so it is in speech. [. . .] A sentence is a significant portion of speech [. . .] Yet every sentence is not a proposition; only such are propositions as have in them either truth or falsity. [. . .] Let us therefore dismiss all other types of sentence but the proposition, for this last concerns our present inquiry, whereas the investigation of the others belongs rather to the study of rhetoric or of poetry. (1–4)

Although he explicitly deems the nature of sentences to be uninteresting in his inquiry on apophantic logos, Aristotle represents the first account of language as action.

J. L. Austin/The Times Literary Supplement

Aristotle’s standpoint influenced the study of language for centuries and paved the way for a tradition of research on verifiability, but several German and British philosophers anticipated a view of language as a tool to change a state of affairs. The issues of language and conversation were addressed by Immanuel Kant who anticipated some concepts like ‘context’ and ‘subjective idealisation’, the rules that articulate conversation, and the para-linguistic gestures used in the accomplishment of speech acts. But it was only at the end of the nineteenth century that a more elaborate treatment of language as action was initiated.

The first, although non-systematic, study of the action-like character of language was conducted by Thomas Reid, who described different acts that can be performed through language, and grouped them into two categories: ‘solitary acts’ like judgements, intentions, deliberations and desiring, which can go unexpressed; and ‘social operations’ like commanding, promising or warning, which, by their very social nature, must be expressed. Reid’s contribution to the inception of a speech act theory can be fully understood if viewed from the wider perspective of the philosophical developments of his time.

Franz Brentano’s distinction between physical and psychological phenomena is particularly relevant in this respect because it reintroduced to philosophy the scholastic concept of‘intentionality’, which allows for a distinction between mental acts and the external world. As far as speech act theory is concerned, suffice it here to say that Brentano argued that every mental, psychological act has a content and is directed at an object (the intentional object), which means that mental phenomena contain an object intentionally within themselves and are thus definable as objectifying acts. The Brentanian approach to intentionality* allows for a distinction between linguistic expressions describing psychological phenomena and linguistic expressions describing non-psychological phenomena. Furthermore, Brentano claimed that speaking is itself an activity through which we can initiate psychic phenomena. Edmund Husserl picked up the importance of what Brentano’s psychological investigation could bring to logic*, in particular the contrast between emotional acts and objectifying acts. Husserl tackled the issue of human mental activities (‘acts’) and how they constitute the ‘object’ of knowledge through experience. In his Logical Investigations (1900/1) he developed a theory of meaning based on ‘intentionality’ which, for him, meant that consciousness entails ‘directedness’ towards an object. It is on the notion of ‘objectifying acts’, that is acts of representation, that Husserl shaped his theory of linguistic meaning, thus emphasising the referential use of language. Collaterally he treated the non-representational uses of language, that is acts like asking questions, commanding or requesting.

Following Brentano and moving within the field of psychology, Anton Marty offered the first account of uses of language meant to direct others’ behaviour, like giving an order, requesting, or giving encouragement. Marty stated that sentences may hint at the speaker’s psychic processes and argued that ‘deliberate speaking is a special kind of acting, whose proper goal is to call forth certain psychic phenomena in other beings’ (1908: 284). Stemming from Brentano’s tripartite subdivision of mental phenomena into presentation, judgements, and phenomena of love and hate, Marty discriminated linguistic forms into names, statements and emotives (utterances arousing an interest), which is a model that closely resembles Karl Bühler’s Sprachtheorie. It is precisely to Bühler that we owe the coinage of the label ‘speech act theory’. He offered the first thorough study of the functions of language – Darstellung (representation), Kindgabe (intimation or expression), and Auslösung (arousal or appeal) – thus endowing non-representational sentences with their own status.

A more complete treatment we find in the work of Adolf Reinach, who offered the first systematic theory of speech acts. Reinach received a doctorate in philosophy from the University of Munich; his dissertation was on the concept of cause in penal law. It was within the context of legal language that Reinach argued in favour of the relevance of speech acts which he referred to, presumably independently of Reid’s work, as ‘social acts, that is acts of the mind that are performed in the very act of speaking’. Reinach (1913) provided a detailed taxonomy of social acts as performative* utterances and their modification, and stated very clearly that the utterance ( Äusserung ) of a social act is different from the inner experience of emotions like anger or shame and from statements ( Konstatierungen ) about experiences. It is precisely the recourse to the physical medium, the Äusserung , that transforms the philosophical category of action into a social act. Drawing on previous literature, Reinach separated actions from internal experiences. Then he discriminated between external actions like kissing or killing and linguistic actions, and within this class he distinguished between social acts, which are performed in every act of speaking, and actions, where signs are used but no speech act is performed such as in ‘solitary asserting’ and emotive uses of language. The final distinction refers to the linguistic actions performed in uttering performative formulae and the linguistic and nonlinguistic actions whose performance has an effect on the state of affairs and even changes it.

While Reinach’s ideas were spreading through the Munich scholars, at Oxford A. J. Ayer, considered the philosophical successor of Bertrand Russell, deemed philosophically interesting only those sentences that can be subject to the truth-condition analysis. In line with the logical positivism* of the Vienna Circle, Ayer developed the verification principle in Language, Truth and Logic (1936) where he stated that a sentence is meaningful only if it has verifiable import. Sentences expressing judgements, evaluation and the like were not to be objects of scientific inquiry. This stance, which is now known as the ‘descriptive fallacy’, led him into conflict with Oxford linguist philosophers like Gilbert Ryle and J. L. Austin, who instead were greatly influenced by Ludwig Wittgenstein. He claimed that a language consists of a wide multiplicity of structures and usages that logical positivists had neglected to analyse but which encompass the majority of what human beings say in their construction of meaning.

Following Wittgenstein’s insights into language and putting himself against the positivist background, Gilbert Ryle rejected the Cartesian mind-body dualism in The Concept of Mind ( 1949), and revived the centrality of the standard uses of language, thus contributing to the development of ‘ordinary language philosophy’* in Oxford.

Taking the same veil and influenced by Husserl, Austin rejected the account that only sentences that are meant to describe a state of affairs are worth studying, and he observed that verifiable sentences are only a small part of the large amount of utterances produced by language users. Not all utterances express propositions: many perform actions as, for example, greetings or orders, which resist a truth-conditional analysis. Indeed, most of the sentences uttered by speakers are used in such a way as to perform more fundamental things in verbal interactions, such as naming a ship, marrying a couple, or making a request. In daily life we perform many ordinary verbal actions, and utterances are used in speech events to accomplish all that is achieved through language. Austin’s speech act theory was first delineated in the notes he prepared for some lectures interestingly entitled Words and Deeds which he delivered at Oxford University from 1952 to 1954. Such notes constituted the basis on which he developed his Harvard lectures in 1955, posthumously published in 1962. In the first phase of development of his theory, Austin retained the Aristotelian distinction between apophantic and non-apophantic logos, and introduced the terms of constative utterances and performative utterances, where the former describe or constate a state of affairs and the latter perform actions. Austin later realised that a clear distinction between the two types of utterances is unsustainable. If, for example, we say ‘There is a rat under your chair’, we do more than assert a state of affairs: we warn someone about a possible danger. Assertions can thus be used to perform such acts as to warn, to apologise, and many more. Austin then abandoned the dichotomy and contended that to say something equals to perform something.

According to Austin, when we say something, we perform three acts simultaneously: a locutionary act, an illocutionary act, and a perlocutionary act. At the locutionary level, a speaker produces sounds (phonetic act) which are well ordered with respect to the phonological system and grammar of a particular language (phatic act), and carry some sense with respect to the semantic and pragmatic rules of that language (rhetic act). At the illocutionary level, he is expressing his intention by virtue of conventions shared in his speech community. At the perlocutionary level, he performs a third act which includes the consequences of his speaking, and he has only limited control over them. In order for the speechact to be successful, it must fulfil some appropriateness conditions, or ‘felicity’ conditions: locution is successful if words and sounds are correctly produced; illocution is appropriate if it meets the conditions for its realisation; perlocution may be effective when it produces consequences desired by the producer. The notion of illocutionary force embodies the philosophical notion of intentionality, which can be expressed by performing a speech act through three modalities: (1) directly or indirectly through the performance of another speech act (‘Pass me the salt’ versus ‘Can you pass me the salt?’); literally or non-literally depending on the way words are used (‘Stick it in your head’); (3) explicitly or inexplicitly when meaning is spelled out fully or incompletely (‘I’ll be back later, Mary’s ready’). Indirectness and nonliterality are disambiguated by way of a conversational implicature*, whereas explicitation is achieved through expansion or completion of what one says.

John Searle, one of Austin’s students, contributed widely to developing speech act theory, which he addressed from the viewpoint of intentionality. Specifically he conceived of linguistic intentionality as derived from mental intentionality. In his Speech Acts (1969) Searle claimed that Austin’s ‘felicity conditions’ are constitutive rules of speech acts to the extent that to perform a speech act means to meet the conventional rules which constitute a specific speech act. Moving from this approach and analysing the act of promising, Searle proposed a classification of speech acts into four categories: (1) propositional content (what the speech act isabout); (2) preparatory condition, which states the prerequisites for the speech act; (3) sincerity condition (the speaker has to sincerely intend to keep a promise); and (4) essential condition (the speaker’s intention that the utterance counts as an act and as such is to be recognised by the hearer). One of Searle’s major contributions to the theory refers to indirectness, that is the mismatch between an utterance and an illocutionary force.

The interpretation of indirect speech acts has drawn a great deal of attention. Drawing on H. P. Grice’s pragmatics, most scholars assume that some inferential work on the part of the hearer is required in order to identify the speaker’s communicative intention and the core question is how such inference can be computed. Searle (1975) assumes that the hearer recognises both a direct-literal force, which he understands as the secondary force, and an indirect-nonliteral force, which is the primary force. Similarly Dan Gordon and George Lakoff (1975) argue that inference rules that they label ‘conversational postulates’ reduce the amount of inferential computing necessary to disambiguate an indirect speech act. Jerrold Sadock (1974) departs from the inferential hypothesis and proposes ‘the idiom model’ by claiming that a speech act like ‘Can you pass me the salt?’ is promptly interpreted as a request and needs no inference.

Speech act theory received great attention and valid theoretical proposals from cognitive linguists. Klaus Panther and Linda Thornburg (1998) claim that our knowledge of illocutionary meaning may be systematically organised in the form of what they call ‘illocutionary scenarios’. They are formed by a before, a core, and an after component. If a person wants someone to bring him his pen, he can utter a direct speech act like ‘Bring me my pen’, which exploits the core component, or he can make his request indirectly exploiting either the before component (‘Can you bring me my pen?’) where the modal verb ‘can’ points to the hearer’s ability to perform the action, or the after component (‘You will bring me my pen, won’t you?’) where the auxiliary ‘will’ instantiates the after component of the request scenario. Panther (2005) makes the point that metonymies provide natural ‘inference schemas’ which are constantly used by speakers in meaning construction and interpretation. Scenarios may be accessed metonymically by invoking relevant parts of them. Indirect requests like ‘Can you open the door?’, ‘Will you close the window?’, ‘Do you have hot chocolate?’ exploit all pre-conditions for the performance of a request, that is, the ability and willingness of the hearer, and his possession of the required object. Such pre-conditions are used to stand for the whole speech act category. By means of the explicit mention of one of the components of the scenario, it is possible for the speaker to afford access to the hearer to the whole illocutionary category of ‘requesting’ in such a way that the utterance is effortlessly interpreted as a request. With a view to improving Panther’s proposal, Francisco Ruiz de Mendoza (2007) contends that illocutionary meaning is directly tied to the notion of Idealised Cognitive Models (ICMs), which are principle-governed cognitive structures. Illocutionary scenarios represent the way in which language users construct interactional meaning representations abstracted away from a number of stereotypical illocutionary situations. In an indirect request like ‘I fancy going out for dinner’ the hearer understands the implicated meaning by relying on high-level situational ICMs – that is, on the generic knowledge that expressing a wish indirectly corresponds to asking for its fulfillment. Thus, it is exactly the quick and easy retrieval from our long-term memory of a stored illocutionary scenario that allows us to identify the nature of indirectness.

Speech act theory is a thought-provoking issue which has attracted the interest of philosophers of language and linguists from diverse theoretical persuasions. Manifold aspects of the theory are being debated such as the classification of speech acts, the relationship between speech acts and culture, and the acquisition of speech acts by children, which proves how this area of language research still provides room for developments and new insights.

Primary sources Aristotle (1941). De Interpretatione. New York: Random House. 38–61. Austin, J. L. (1962). How to Do Things with Words. Oxford: Oxford University Press. Gordon D. and G. Lakoff (1975). ‘Conversational postulates’. In P. Cole and J. L. Morgan (eds), Syntax and Semantics, Speech Acts. New York: Academic Press. 83–106. Husserl, E. (1900/1). Logische Untersuchungen. Halle: Nyemeier.Panther, K. U. and L. Thornburg (1998). ‘A cognitive approach to inferencing in conversation’. Journal of Pragmatics 30: 755–69. Panther K. U. (2005). ‘The role of conceptual metonymy in meaning construction’. In F. Ruiz de Mendoza and S.Peña (eds), Cognitive Linguistics. Internal Dynamics and Interdisciplinary Interaction. Berlin: Mouton de Gruyter. 353–86. Reinach, A. (1913). ‘Die apriorischen Grundlagen des bürgerlichen Rechtes’. In Jahrbuch für Philosophie und phänomenologische Forschung 1: 685–847. Ruiz de Mendoza, F. (2007). ‘High level cognitive models: in search of a unified framework for inferential and grammatical behavior’. In Krzysztof Kosecki (ed.), Perspectives on Metonymy. Frankfurt: Peter Lang. 1130. Ryle G. (1949). The Concept of Mind. London: Hutchinson. Sadock J. (1974). Toward a Linguistic Theory of Speech Acts. New York: Academic Press. Searle J. R. (1969). Speech Acts. Cambridge: Cambridge University Press. Searle J. R. (1975). ‘Indirect speech acts’. In P. Cole and J. L. Morgan (eds), Syntax and Semantics 3: Speech Acts. New York: Academic Press. 59–82. Wittgenstein L. (1953). Philosophical Investigations. Oxford: Blackwell.

Further reading Ayer, A. J. (1936). Language, Truth and Logic. London: Gollancz. Brentano, F. (1874). Psychologie vom empirischen Standpunkt. Leipzig: Duncke and Humbolt. Marty, A. (1908). Untersuchungen zur Grundlegung der allgemeinen Grammatik und Sprachphilosophie. Halle: Nyemeier. Reid, T. (1894). The Works of Thomas Reid. Edinburgh: Maclachlan and Stewart.

Source: Key Ideas in Linguistics and the. Philosophy of Language. Edited by Siobhan Chapman and Christopher Routledge. Edinburgh University Press. 2009.

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Speech Acts: Conventions and Intentions

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The praxeological approach understands communication as a sub-category of human action—the conscious aiming at ends and intentional utilisation of communicative means for the attainment of goals in social world. This approach corresponds to the views of speech act theory, which suggests that certain communicative actions—performatives—function normatively within a structured system of communication. Such performative speech acts possess “illocutionary force”, which enables them to accomplish things with normative consequences. Speech act theory and praxeology seem to be in accord on multiple issues, including the notions of the requirements of meeting both external and internal conditions (maintaining necessary social conventions and mental states accordingly) in order for a performative to succeed. However, not all performatives create normative (and legal) effects; instead, they can be viewed as a continuum. In addition, a necessary distinction must be made between felicitous and infelicitous performatives, as well as communicative actions that are not performatives at all.

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Throughout this book, I will use the terms “speech” and “communication” interchangeably (with the term “speech act” being the equivalent of “communicative act”), reflecting the idea that contemporary speech act theory encompasses written, spoken and non-verbal discourse.

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Slutskiy, P. (2021). Speech Acts: Conventions and Intentions. In: Communication and Libertarianism. Springer, Singapore. https://doi.org/10.1007/978-981-33-6664-0_4

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Speech Acts in Linguistics

Brooks Kraft LLC/Getty Images

• An Introduction to Punctuation
• Ph.D., Rhetoric and English, University of Georgia
• M.A., Modern English and American Literature, University of Leicester
• B.A., English, State University of New York

In linguistics , a speech act is an utterance defined in terms of a speaker's intention and the effect it has on a listener. Essentially, it is the action that the speaker hopes to provoke in his or her audience. Speech acts might be requests, warnings, promises, apologies, greetings, or any number of declarations. As you might imagine, speech acts are an important part of communication.

Speech-Act Theory

Speech-act theory is a subfield of pragmatics . This area of study is concerned with the ways in which words  can be used not only to present information but also to carry out actions. It is used in linguistics, philosophy, psychology, legal and literary theories, and even the development of artificial intelligence.

Speech-act theory was introduced in 1975 by Oxford philosopher J.L. Austin in "How to Do Things With Words"   and further developed by American philosopher J.R. Searle. It considers three levels or components of utterances: locutionary acts (the making of a meaningful statement, saying something that a hearer understands), illocutionary acts (saying something with a purpose, such as to inform), and perlocutionary acts (saying something that causes someone to act). Illocutionary speech acts can also be broken down into different families, grouped together by their intent of usage.

Locutionary, Illocutionary, and Perlocutionary Acts

To determine which way a speech act is to be interpreted, one must first determine the type of act being performed.  Locutionary acts  are, according to Susana Nuccetelli and Gary Seay's "Philosophy of Language: The Central Topics," "the mere act of producing some linguistic sounds or marks with a certain meaning and reference." So this is merely an umbrella term, as illocutionary and perlocutionary acts can occur simultaneously when locution of a statement happens.

Illocutionary acts , then, carry a directive for the audience. It might be a promise, an order, an apology, or an expression of thanks—or merely an answer to a question, to inform the other person in the conversation. These express a certain attitude and carry with their statements a certain illocutionary force, which can be broken into families. 

Perlocutionary acts , on the other hand, bring about a consequence to the audience. They have an effect on the hearer, in feelings, thoughts, or actions, for example, changing someone's mind. Unlike illocutionary acts, perlocutionary acts can project a sense of fear into the audience.

Take for instance the perlocutionary act of saying, "I will not be your friend." Here, the impending loss of friendship is an illocutionary act, while the effect of frightening the friend into compliance is a perlocutionary act.

Families of Speech Acts

As mentioned, illocutionary acts can be categorized into common families of speech acts. These define the supposed intent of the speaker. Austin again uses "How to Do Things With Words" to argue his case for the five most common classes: 

• Verdictives, which present a finding
• Exercitives, which exemplify power or influence
• Commissives, which consist of promising or committing to doing something
• Behabitives, which have to do with social behaviors and attitudes like apologizing and congratulating
• Expositives, which explain how our language interacts with itself

David Crystal, too, argues for these categories in "Dictionary of Linguistics." He lists several proposed categories, including " directives (speakers try to get their listeners to do something, e.g. begging, commanding, requesting), commissives (speakers commit themselves to a future course of action, e.g. promising, guaranteeing), expressives (speakers express their feelings, e.g. apologizing, welcoming, sympathizing), declarations (the speaker's utterance brings about a new external situation, e.g. christening, marrying, resigning)."

It is important to note that these are not the only categories of speech acts, and they are not perfect nor exclusive. Kirsten Malmkjaer points out in "Speech-Act Theory," "There are many marginal cases, and many instances of overlap, and a very large body of research exists as a result of people's efforts to arrive at more precise classifications."

Still, these five commonly accepted categories do a good job of describing the breadth of human expression, at least when it comes to illocutionary acts in speech theory.

Austin, J.L. "How to Do Things With Words." 2nd ed. Cambridge, MA: Harvard University Press, 1975.

Crystal, D. "Dictionary of Linguistics and Phonetics." 6th ed. Malden, MA: Blackwell Publishing, 2008.

Malmkjaer, K. "Speech -Act Theory." In "The Linguistics Encyclopedia," 3rd ed. New York, NY: Routledge, 2010.

Nuccetelli, Susana (Editor). "Philosophy of Language: The Central Topics." Gary Seay (Series Editor), Rowman & Littlefield Publishers, December 24, 2007.

• Illocutionary Act
• Locutionary Act Definition in Speech-Act Theory
• Speech Act Theory
• Perlocutionary Act Speech
• Illocutionary Force in Speech Theory
• Performative Verbs
• Appropriateness in Communication
• Information Content (Language)
• Felicity Conditions: Definition and Examples
• The Power of Indirectness in Speaking and Writing
• Politeness Strategies in English Grammar
• Mental-State Verbs
• The Definition and Examples of Folk Linguistics
• Pause (Speech and Writing)
• Context in Language
• What "Literal Meaning" Really Means

28 U.S. Code § 4101 - Definitions

Pub. L. 111–223, § 2 , Aug. 10, 2010 , 124 Stat. 2380 , provided that:

Judith Butler: Performativity

by Stephen Young | 14 Nov 2016

KEY CONCEPT

Butler’s notion of ‘performativity’ is most famously associated with her views on gender and is important for critical legal thinkers because performativity is deeply entangled with politics and legality. Her focus on performance has been widely influential because performance and performativity enable discussants to move beyond analyses of legal definition or status to consider the political and social discursive forces that construct and normalize legal or political practice. For Butler, performativity is not solely an extension of discourse theory as her later works suggest bodies “speak” without necessarily uttering. This brief review will provide an abbreviated history on the conceptual genesis of the term “performativity,” how Butler (re)defines and employs it, and finally how Butler’s account may be useful for critical legal thinking.

John Austin was an “ordinary language” philosopher who is credited with initiating the study into performatives. Ordinary language philosophers tend to collapse the use/meaning distinction and replace it with the notion that the meaning of a word is its use. 1 Stanely Cavell, The Claim of Reason 206-7 (1972). Austin analyzed performative utterances in three parts: locution, illocution and perlocution. 2 J.L. Austin, How to Do Things with Words 1-11 (1962). His project, somewhat similar to late Wittgenstein’s, theorized how speech-acts do or mean things in ways other than generating true and false sentences. Although each sentence may be said to be true or false, sentences do more than provide true or false pictures of the world. For Austin a ‘performative utterance’ was a speech act that creates events or relations in the world. An example is when a bride/groom and groom/bride say “I do” at a wedding, they may then actually become married. Every utterance is a locution , the noise of an utterance when “saying something.” 3 Jacques Derrida, Signature Event Contest, in Limited Inc. 3-12 (1988). The illocution is the effect intended in saying something (the locution determined by social conventions in particular situations, i.e. marriage), while perlocution is the effect (upon listeners and in society) by saying something. 4 Austin, supra at 122-131.

Without going into too much nuanced details of Austin’s theory, one should attend to the distinction between performance and performative. All utterances are performed, but not all utterances are performatives. When an utterance meets the social conventions it is has felicitous uptake making it into a performative that transforms. The bride(s)/groom(s) must fit into socially constructed roles, i.e. “bride(s)/groom(s)”, that allow them to say “I do” for those utterance to enact “marriage.” Saying “I do” at a rehearsal dinner will not enact marriage. Performatives are utterances that engender formative force per the utterance (formative + per (utterance) = performative). Performatives are, even without a Butlerian slant, fecund arena for legal interrogation.

Although Butler does not strictly adhere to an Austianian notion of speech-act theory, occasionally (re)citing John Searle, Derrida and many others, the notion that speech does something beyond the intended semantic and syntactical meanings remains a central aspect of her writings. 5 Judith Butler, Bodies that Matter (1993); Excitable Speech (1997). Importantly, she combines speech act theory with a phenomenological theory of “acts,” Lacanian psychoanalysis, as well as a heavy dose of Foucault’s notions of subject formation to explain how social agents constitute and reconstitute reality through their performance of language, gesture and sign. 6 Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory (1988) 40(4) Theatre Journal 519-531; Gender Trouble (1990); The Psychic Life of Power 83 (1997). Under Butler’s account, “agency” already implies “social agency,” which is to say that someone exhibiting agency is already publicly identifiable. Performatives are then “inserted in a citational chain, and that means that the temporal conditions for making the speech act precede and exceed the momentary occasion of its enunciation.” 7 Butler, Notes Toward a Performative Theory of Assembly 176 (2015).

Early Butler focused on the production of women as subjects of feminism. Following Foucault, who argued that subjects are constructed through the juridical notions of power to produce the subjects they come to represent, Butler seeks to uncover how it is that “woman” comes to be a subject and how subject status allows one to stand before the law. 8 Gender Trouble, 2. This notion that someone comes to stand before the law through the (re)construction of subjective agency is continually explored through her texts. The “law” Butler speaks of does not necessarily mean juridical law. Instead, it could be “heterosexual law” which is a bundling of juridical and disciplinary forms of power into a discursive performance as a way of being. Throughout the course of one’s life, one reiterates performances of gender that conform to a gender norm, which has the discursive function of re-inscribing gender performatives and rendering the individual intelligibile. As such, “gender is always a doing, though not a doing by a subject who might be said to pre-exist the deed.” 9 Gender Trouble, 25.

To see how this works, consider a doctor/nurse’s announcement, “It’s a girl!” The doctor/nurse’s utterance is a performative act that initiates and constitutes that infant’s way of being in the world. One could too hastily object that the infant is sexed and is therefore a girl. That objection elides the doctor/nurse’s performative utterance that collapses sex/gender into social identity formation. Consider the terms cited in the following sentence: “the infant had female-body parts that allowed the doctor to exclaim it is a girl.” The “infant-body,” which is also called “it” before it is “girl-ed” or “boy-ed,” has no social identity. When the body is identified as “girl,” the utterance imposes “girl-ness” upon the body, therein interpellating the “infant”/”it” into “girl.” The act of the doctor/nurse is not mere performance. It is performative because the act of naming the body a “girl” also constructs “her” identity as “girl.” This is not a natural fact of the body, but a forcible “citation of a norm, one whose complex historicity is indissociable from relations of discipline, regulation, punishment’. 10 Bodies that Matter, 232. It is salient to Butler’s account that before being girl-ed or boy-ed the “infant-body” or “it” is also excluded from social identification by the re-iterability of the norm.

As connected with legal studies, she writes “Law is not literally internalized, but incorporated, with the consequences that bodies are produced which signify that law on and through the body.” 11 Gender Trouble, 134-5. Law dictates the form of performance but one performs the law through their expression even if it not necessarily of their choosing. The doctor’s/nurse’s or someone else’s performative initiates a ‘script’ (or form) that “governs” and gives rise to the performance of and on the body. This does not mean one cannot reject that script and adopt a new one. Much has happened since Gender Trouble was published in 1990! The point is that the subject only remains a subject so long as they are able to reiterate oneself as an identifiable, intelligible and hence governable subject, which is dependent on the subject’s ability to reiterate performatives coherently. If one initiates a performative without a script, one that is fully outside the bounds of intelligibility, the performance or identity will be unheeded, but it does not mean they are outside the bounds of power. What renders one intelligible also demarcates what is unintelligible.

The performative naming of a body upon birth, either male/female or girl/boy, engages an artificial binary that suppresses more subversive sexual disruptions of hegemonic heteronormative discourse. However, the disciplinary apparatus that produce discourses of subjection bring about the very conditions for subverting that same apparatus. “In other words, the law turns against itself and spawns version of itself with oppose and proliferate its animating purpose.” 12 Psychic Life, 100. Those performatives, those most “injurious interpellations” may then become sites of radical reoccupation and resignification because those ‘signs/scripts/forms’ are discursively constructed.  Were gender identities fail to fit within the binary form one may enact an identity that challenges intelligibility while subverting the gender binary.

The subversive uses of performativity are manifest through citation and re-citation of the performative. It is the use of “ordinary language” in “non-ordinary” ways, or what Derrida would call “reinscription” that a term can break with discourse to engender insurrectionary potential. 13 Excitable Speech, 144-5. The iterability of the performance is generated from the citationality of the sign that allows one to ‘make trouble’ by citing or reciting the performative in ways that are contrary to or revealing of the instability of heteronormative hegemony. 14 See, e.g., Derrida’s Limited Inc., 7-12. Instead of saying “it’s a girl” the doctor/nurse could have uttered “it’s a lesbian!” For Butler, “the queer appropriation of the performative mimes and exposes both the binding power of the heterosexualizing law and its expropriability.” 15 Bodies that Matter, 232.

Although there is a subversive use, there is always the fear that (re)citing the performative either re-inscribes the heteronormative hegemony or falls outside of the intelligible. For instance, one might query whether gay marriage promotes or opposes heteronormative hegemony? One might easily say that it opposes hegemonic powers because gay marriage makes marriages gay. However, following Michael Warner, gay marriage might also make gays who marry more heteronormative thereby re-entrenching the status quo and further marginalizing those that are not yet before the law. 16 Michael Warner, The Trouble with Normal: Sex, Politics and the Ethics of Queer Life (1999). A way out of this, I think, is the notion that whatever is the status quo that gives rise to the real, the “forms” or the “scripts” that are performed giving rise to intelligible performance, is discursively constituted. This always allows for rearticulation and re-inscription.

For Butler, there are no natural bodies or bodies that pre-exist societal or cultural inscription. Unlike Arendt, who appears to believe that there are bodies that can remain private, Butler disagrees. Although a body may not be in the space of appearance, or the sphere of the polis, their exclusion from that realm is a result of discursively constructed performative effects upon the body that marginalize or exclude it. They are still “saturated” in power relations. There is no zoe to the bios or “bare life” in Agamben’s sense. 17 Butler, Notes, 79-80. Revealing and calling attention to that discursive operation through performances can assist in reimaging how bodies relate to one another.

The ability to continually challenge is more clearly illustrated in Butler’s later works. Where Butler’s early works are more focused on, perhaps, the individual, recent works are more on “precarity,” or the making of those who are precarious or on the margins. 18 See, Judith Butler & Athena Athanasiou, Dispossession: The Performative in the Political (2013); Notes Towards a Performative Theory. Again, this recites how one comes to stand before the law – or how the law disallows people to stand before it. Not everyone can come before the law, but the legal construction that acts to marginalize those who cannot come before it generates the very conditions of destabilization. While performatives enact structures of exclusion, they are the same that give rise to conditions of radical demonstration.

Performative contradictions, those speech acts that undermine their performative use in the act of speaking, demonstrate the failure of norms to be universalizing and totalizing. For instance, in terms of legal censorship, the regulation that “ states what it does not want stated thwarts its own desire…that throws into question that regulation’s capacity to mean and do what it says[.]” 19 Excitable Speech, 130. Performative contradictions can be tactically performed to publicly destabilized pretenses of universality by highlighting it’s spatial and temporal dimensions. For instance, Butler discusses how undocumented people in Los Angeles took to the streets to sing the American National Anthem in Spanish in 2006. 20 Judith Butler & Gayatri Chakravorty Spivak, Who Sings the Nation-State? 62-3 (2007). When so-called illegal aliens, who are “supposed” to be in the dark, appropriate a public space, especially in an “illegal public demonstration” to sing “America’s” National Anthem in Spanish, they enact multiple contradictions that interject conflicting ruptures within notions of public/private, legal/illegal, self/other, and national/non-national “ownerships.” It is the legality that makes the illegal, and the performative reclamations, possible. The performance of bodies, even those that do not or cannot sing, enact “speech” through performative contradictions in spaces and times, momentary flickers, that question who owns what and who is it one thinks one is.

Butler writes of three uses for performativity: 1) it “seeks to counter a certain kind of positivism,” which might be with regard to gender or the state, 2) it may “counter a certain metaphysical presumption about culturally constructed categories and to draw our attention to the diverse mechanisms of that construction” and 3) it is also useful in beginning to articulate the processes that produce ontological effects, or the naturalized assumptions of what constitutes reality. 21 Butler, Performative Agency, 3(2) J. Cultural Econ. 147 (2010). I also add that Butler’s account is useful for understanding how struggles for subject status interpellate individuals who seek to interpolate which may produce the unintended effect of further marginalizing those who are already precarious.

Although Butler is recognized for her influence in gender/queer studies, her work is widely influential. Performatives are generally useful to legal studies because the announcements of law are often performative. How a judge reads a verdict that has (or fails to have) performative power to transform relations is a potential object of further inquiry. When combined with Butler’s interest in the location of the social subject, questions about who may be the subject of the performative utterance, who is the speaker with the ostensibly authority to make performative utterances, or who is the unseen or unheard body not yet before the law.

Stephen Young is working on a PhD at UNSW.

Call for contributions to ‘Key Concepts’.

• 1 Stanely Cavell, The Claim of Reason 206-7 (1972).
• 2 J.L. Austin, How to Do Things with Words 1-11 (1962).
• 3 Jacques Derrida, Signature Event Contest, in Limited Inc. 3-12 (1988).
• 4 Austin, supra at 122-131.
• 5 Judith Butler, Bodies that Matter (1993); Excitable Speech (1997).
• 6 Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory (1988) 40(4) Theatre Journal 519-531; Gender Trouble (1990); The Psychic Life of Power 83 (1997).
• 7 Butler, Notes Toward a Performative Theory of Assembly 176 (2015).
• 8 Gender Trouble, 2.
• 9 Gender Trouble, 25.
• 10 Bodies that Matter, 232.
• 11 Gender Trouble, 134-5.
• 12 Psychic Life, 100.
• 13 Excitable Speech, 144-5.
• 14 See, e.g., Derrida’s Limited Inc., 7-12.
• 15 Bodies that Matter, 232.
• 16 Michael Warner, The Trouble with Normal: Sex, Politics and the Ethics of Queer Life (1999).
• 17 Butler, Notes, 79-80.
• 18 See, Judith Butler & Athena Athanasiou, Dispossession: The Performative in the Political (2013); Notes Towards a Performative Theory.
• 19 Excitable Speech, 130.
• 20 Judith Butler & Gayatri Chakravorty Spivak, Who Sings the Nation-State? 62-3 (2007).
• 21 Butler, Performative Agency, 3(2) J. Cultural Econ. 147 (2010).

SEE OUR CALL FOR CONTRIBUTIONS TO KEY CONCEPTS ⇒

I am working on performativity among Sindhi women .kindly guide me more on this topic, will wait for your next article on performativity.

Thanks, this was an excellent article. I’ve been exposed to her ideas before, but I didn’t understand them very well until reading this article

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US TikTok Bill Sets up Fight Over Free Speech Protections

FILE PHOTO: Giovanna Gonzalez of Chicago demonstrates outside the U.S. Capitol following a press conference by TikTok creators to voice their opposition to the “Protecting Americans from Foreign Adversary Controlled Applications Act," pending crackdown legislation on TikTok in the House of Representatives, on Capitol Hill in Washington, U.S., March 12, 2024. REUTERS/Craig Hudson/File Photo

By Mike Scarcella

(Reuters) - The U.S. Senate set up a likely court showdown over the scope of TikTok's free speech protections under the U.S. Constitution when it approved a bill on Tuesday to ban the social media platform from app stores unless its Chinese owner sells it.

While the bill itself does not say anything about speech, the proposal has alarmed civil rights advocates, TikTok and users of the app, all of whom could sue if President Joe Biden signs it into law as expected.

Legal experts said opponents of the law could argue it infringes free speech by preventing users from expressing themselves and businesses from using the app to promote products.

TikTok has already beaten a similar attempt to ban its use in the U.S. state of Montana, although the state is appealing that ruling.

Jameel Jaffer, executive director of the Knight First Amendment Institute, called the U.S. legislative effort "censorship — plain and simple" in a letter that his group and others sent to lawmakers in March.

A court that agrees with that assessment would apply strict scrutiny, meaning the government would have to prove it has not violated speech rights under the Constitution's First Amendment and that there are no lesser ways to achieve the government's national security goals.

The bill's promoters have argued it has nothing to do with speech but merely regulates a commercial activity by requiring TikTok's Beijing-based owner ByteDance to sell the U.S. operations within about a year, denying China easy access to users' data.

The bill sets the U.S. Court of Appeals for the D.C. Circuit as the venue for any legal challenges. TikTok could ask the court to preliminarily bar enforcement of the law while it pursues a case contending the measure is unlawful and should be struck down.

Legal experts said if the government winds up fighting a First Amendment case under the strict scrutiny standard, it must prove national security or some other compelling government interest is at stake. It will also have to prove the law was "narrowly tailored" to address that particular issue.

Critics spot a weakness in the government's potential case on this point: Washington thus far has seemed unconcerned about abuse of users' data by other social media platforms.

Plenty of companies such as Meta Platforms' Facebook collect, store and share users' data, but the government has never treated that activity as a national security threat or enacted data protections.

The Electronic Frontier Foundation's David Greene said that if the U.S. were really concerned about China and data privacy, it would push legislation that applies to all social media companies, not just TikTok.

The government would need to convince a court the measure is not a limitation on speech but a regulation of a commercial transaction and a way to protect national security.

The government would argue that TikTok could continue to operate and U.S. users continue to use it, just not under Chinese ownership, so the law's effect on speech was "incidental" and permitted.

In November, a U.S. federal judge in Montana blocked Montana’s effort to ban TikTok within the state. TikTok and some users filed a pair of First Amendment lawsuits challenging the proposed ban, which had been set to take effect in January.

U.S. District Judge Donald Molloy issued a preliminary injunction halting the state’s ban, saying it "violates the Constitution in more ways than one" and "oversteps state power." Montana, backed by Virginia and 18 other states, is challenging the order on appeal.

"The law is not narrowly tailored, nor does it leave open any alternative channels for targeted communication of information," Molloy wrote.

TikTok is due to respond to the Montana appeal by April 29.

(Reporting by Mike Scarcella; Editing by David Bario, Tom Hals and David Gregorio)

Copyright 2024 Thomson Reuters .

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Your Brain Waves Are Up for Sale. A New Law Wants to Change That.

In a first, a Colorado law extends privacy rights to the neural data increasingly coveted by technology companies.

By Jonathan Moens

Consumers have grown accustomed to the prospect that their personal data, such as email addresses, social contacts, browsing history and genetic ancestry, are being collected and often resold by the apps and the digital services they use.

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Supporters of the bill expressed their concern that neural data could be used to decode a person’s thoughts and feelings or to learn sensitive facts about an individual’s mental health or physical condition, such as whether someone has epilepsy.

“We’ve never seen anything with this power before — to identify, codify people and bias against people based on their brain waves and other neural information,” said Sean Pauzauskie, a member of the board of directors of the Colorado Medical Society, who first brought the issue to Ms. Kipp’s attention. Mr. Pauzauskie was recently hired by the Neurorights Foundation as medical director.

The new law extends to biological and neural data the same protections granted under the Colorado Privacy Act to fingerprints, facial images and other sensitive, biometric data.

Among other protections, consumers have the right to access, delete and correct their data, as well as to opt out of the sale or use of the data for targeted advertising. Companies, in turn, face strict regulations regarding how they handle such data and must disclose the kinds of data they collect and their plans for it.

“Individuals ought to be able to control where that information — that personally identifiable and maybe even personally predictive information — goes,” Mr. Baisley said.

Experts say that the neurotechnology industry is poised to expand as major tech companies like Meta, Apple and Snapchat become involved.

“It’s moving quickly, but it’s about to grow exponentially,” said Nita Farahany, a professor of law and philosophy at Duke.

From 2019 to 2020, investments in neurotechnology companies rose about 60 percent globally, and in 2021 they amounted to about $30 billion, according to one market analysis . The industry drew attention in January, when Elon Musk announced on X that a brain-computer interface manufactured by Neuralink, one of his companies, had been implanted in a person for the first time. Mr. Musk has since said that the patient had made a full recovery and was now able to control a mouse solely with his thoughts and play online chess.

While eerily dystopian, some brain technologies have led to breakthrough treatments. In 2022, a completely paralyzed man was able to communicate using a computer simply by imagining his eyes moving. And last year, scientists were able to translate the brain activity of a paralyzed woman and convey her speech and facial expressions through an avatar on a computer screen.

“The things that people can do with this technology are great,” Ms. Kipp said. “But we just think that there should be some guardrails in place for people who aren’t intending to have their thoughts read and their biological data used.”

That is already happening, according to a 100-page report published on Wednesday by the Neurorights Foundation. The report analyzed 30 consumer neurotechnology companies to see how their privacy policies and user agreements squared with international privacy standards. It found that only one company restricted access to a person’s neural data in a meaningful way and that almost two-thirds could, under certain circumstances, share data with third parties. Two companies implied that they already sold such data.

“The need to protect neural data is not a tomorrow problem — it’s a today problem,” said Mr. Genser, who was among the authors of the report.

The new Colorado bill won resounding bipartisan support, but it faced fierce external opposition, Mr. Baisley said, especially from private universities.

Testifying before a Senate committee, John Seward, research compliance officer at the University of Denver, a private research university, noted that public universities were exempt from the Colorado Privacy Act of 2021. The new law puts private institutions at a disadvantage, Mr. Seward testified, because they will be limited in their ability to train students who are using “the tools of the trade in neural diagnostics and research” purely for research and teaching purposes.

“The playing field is not equal,” Mr. Seward testified.

The Colorado bill is the first of its kind to be signed into law in the United States, but Minnesota and California are pushing for similar legislation. On Tuesday, California’s Senate Judiciary Committee unanimously passed a bill that defines neural data as “sensitive personal information .” Several countries, including Chile, Brazil, Spain, Mexico and Uruguay, have either already enshrined protections on brain-related data in their state-level or national constitutions or taken steps toward doing so.

“In the long run,” Mr. Genser said, “we would like to see global standards developed,” for instance by extending existing international human rights treaties to protect neural data.

In the United States, proponents of the new Colorado law hope it will establish a precedent for other states and even create momentum for federal legislation. But the law has limitations, experts noted, and might apply only to consumer neurotechnology companies that are gathering neural data specifically to determine a person’s identity, as the new law specifies. Most of these companies collect neural data for other reasons, such as for inferring what a person might be thinking or feeling, Ms. Farahany said.

“You’re not going to worry about this Colorado bill if you’re any of those companies right now, because none of them are using them for identification purposes,” she added.

But Mr. Genser said that the Colorado Privacy Act law protects any data that qualifies as personal. Given that consumers must supply their names in order to purchase a product and agree to company privacy policies, this use falls under personal data, he said.

“Given that previously neural data from consumers wasn’t protected at all under the Colorado Privacy Act,” Mr. Genser wrote in an email, “to now have it labeled sensitive personal information with equivalent protections as biometric data is a major step forward.”

In a parallel Colorado bill , the American Civil Liberties Union and other human-rights organizations are pressing for more stringent policies surrounding collection, retention, storage and use of all biometric data, whether for identification purposes or not. If the bill passes, its legal implications would apply to neural data.

Big tech companies played a role in shaping the new law, arguing that it was overly broad and risked harming their ability to collect data not strictly related to brain activity.

TechNet, a policy network representing companies such as Apple, Meta and Open AI, successfully pushed to include language focusing the law on regulating brain data used to identify individuals. But the group failed to remove language governing data generated by “an individual’s body or bodily functions.”

“We felt like this could be very broad to a number of things that all of our members do,” said Ruthie Barko, executive director of TechNet for Colorado and the central United States.

Senate passes bill renewing key FISA surveillance power moments after it expires

WASHINGTON — The Senate voted to reauthorize a powerful surveillance tool the U.S. government describes as critical to combating terrorism, after defeating efforts by civil liberties advocates on the left and right to rein it in.

The vote of 60-34 sends the bill to President Joe Biden, who has championed it. The legislation extends Section 702 of the Foreign Intelligence Surveillance Act , or FISA, for two more years.

The final vote came after the Senate defeated six amendments from progressive and conservative senators who said the spying powers are too broad and demanded protections for Americans’ civil liberties and privacy. The Biden administration and FISA supporters had warned that even a brief lapse could have a detrimental impact on the intelligence-gathering process.

Senators just missed the midnight deadline to reauthorize the FISA Section 702 statute but voted to reauthorize it minutes later. Had any amendments been adopted, the bill would have been sent back to the House, potentially forcing a lengthy lapse of the law.

“In the nick of time, bipartisanship has prevailed here in the Senate,” Senate Majority Leader Chuck Schumer, D-N.Y., said.

“It wasn’t easy, people had many different views, but we all know one thing: letting FISA expire would have been dangerous. It’s an important part of our national security to stop acts of terror, drug trafficking, and violent extremism,” Schumer said on the Senate floor. “Thank you to all my Senate colleagues on both sides of the aisle for their good work in getting this done.”

The House passed a two-year FISA renewal last week after defeating, by the slimmest of margins, an amendment to require a warrant to search through the communications of Americans as part of data collected while surveilling foreigners. Senators delayed a vote for days by pushing for amendments to make changes to the bill.

The bill’s passage came on the heels of a pitched battle between the U.S. intelligence community and an unusual coalition of progressive and conservative civil liberties advocates, who argued that the powers are too expansive and impinge on the privacy of Americans.

“It’s important that people understand how sweeping this bill is,” said Sen. Ron Wyden, D-Ore., a member of the Intelligence Committee and outspoken proponent of privacy protections. “Something was inserted at the last minute, which would basically compel somebody like a cable guy to spy for the government. They would force the person to do it and there would be no appeal.”

In a rare break with Schumer and Biden, Sen. Patty Murray, D-Wash., the president pro tempore, opposed the bill, saying: “I have strong concerns that this expansion of FISA Section 702 authorities would allow for increased abuse and misuse of the law — infringing on the rights of Americans here at home.”

Senate Intelligence Committee Chair Mark Warner, D-Va., pushed back on that and other criticisms of a House amendment added to the FISA reauthorization bill, arguing that it “is narrowly focused on a significant intelligence gap,” but some members like Wyden worry it could be abused.

“Contrary to what some have been saying, it expressly excludes coffee shops, bars, restaurants, residences, hotels, libraries, recreational facilities and a whole litany of similar establishments,” Warner said on the Senate floor Wednesday. “It also absolutely would not, as some critics have maintained, allow the U.S. government to compel, for example, a janitor working in an office building in Northern Virginia to spy for the intelligence community.”

Warner said that allowing FISA to expire would have put the U.S. in “uncharted territory” as companies who work with the government to provide intelligence might have stopped doing so without a reauthorization.

Sen. John Cornyn, R-Texas, said that “60% of the president’s daily brief is composed of 702-derived materials, so this is absolutely critical.”

Attorney General Merrick Garland called Section 702 "indispensable" in a statement.

“This reauthorization of Section 702 gives the United States the authority to continue to collect foreign intelligence information about non-U.S. persons located outside the United States, while at the same time codifying important reforms the Justice Department has adopted to ensure the protection of Americans’ privacy and civil liberties," he said.

Frank Thorp V is a producer and off-air reporter covering Congress for NBC News, managing coverage of the Senate.

Sahil Kapur is a senior national political reporter for NBC News.

Ryan Nobles is a correspondent covering Capitol Hill.

Tennessee Gov. Bill Lee signs bill requiring fetal development videos in public schools

School children in most Tennessee counties will be required to view a three-minute animated video depicting fetal development, such as one produced by a political group that advocates against abortion, a under a bill signed by Gov. Bill Lee on Tuesday.

HB 2435/SB 2767 mandates the inclusion of a 3-minute computer-generated or high definition ultrasound video depicting fetal development in family life curricula across the state beginning in the 2024-25 school year.

The new state law cites as an example an animation developed by Live Action, a political advocacy group, that asserts that human life begins at conception. While the law does not specifically require viewing of Live Action’s animation “Meet Baby Olivia,” the law touts it as an example of one that would fit the stringent requirements. The legislation is titled the Baby Olivia Act.

“Meet Baby Olivia” describes for young viewers the timeline of fetal development based on one that does not align with the U.S. medical standard. The video describes development in the weeks beginning at fertilization, not the U.S. medical standard of measuring gestational age based on a woman’s last menstrual period. 

Proponents of the “Baby Olivia” video argue the difference in calculating age is a feature of the video. Critics of the measure have questioned the video’s neutrality and medical accuracy, say the video could be misleading or confusing to young viewers, and called it an effort “to advance the idea that fetuses are people and that abortion care is wrong.”

Similar legislation, all specifically referencing Live Action’s Baby Olivia video, has passed or is being considered in Missouri, North Dakota, West Virginia, Kentucky, and Iowa.

Tennessee's family life curriculum is required by state law in all counties where the teen birth rate exceeds 19.5 per 1,000 females between the ages of 15 and 19. That's 78 of the state's 95 counties, according to the Centers for Disease Control and Prevention.

Vivian Jones covers state government and politics for The Tennessean. Reach her at [email protected] or on X at @Vivian_E_Jones.