Flexner Book Club Blog

I have read “Burning Acts, Injurious Speech,” several times now, and I remain somewhat confused by the argument. Not unconvinced, but uncertain of how all the parts fit together.

All speech is “excitable,” meaning that it is, at some level, beyond the control of the speaker. This is because language is produced out of a cultural and social matrix that precede and supercede the speaker. Therefore meaning can’t be dictated by the speaker. Furthermore, because the meaning stems from the context that precedes excitable speech, the speaker is actually produced as a subject from that pre-existing meaning and context. In the case of hate speech, the law—by predetermining the meaning of certain words in advance of their utterance—creates the speaker as subject so that the speaker can then be prosecuted. This seems in line with Butler’s comment in last week’s essay (“Endangered/Engendering”) about the beating of Rodney King as a necessary cultural production of blackness (and, quoting Ruth Gilmore, as an instance of nation-building). The prosecution of hate speech requires that the speech itself is rehearsed in public and that it become part of the official state record (in court). Yet after this rhetorical move, Butler then asserts that speech does not have to be understood as hateful. Not only is all speech excitable (out of the speaker’s control), but it is also “ex-citable”—it can be uncoupled from its cultural meaning and assigned a new meaning by those who hear it.

But that seems to imply that a speaker can never assert the meaning of her speech, and that only the listener has the power to subvert the predetermined meaning of the speech. In which case, the audience can assert agency, but the speaker never can.

Who or what should be held accountable, if at all, for injurious speech? In Judith Butler’s “Burning Acts, Injurious Speech,” she explains that while we think that we are subjects who are responsible for everything we say, in actuality, “a community and history of . . . speakers . . . [is] magically invoked at the moment in which the utterance is spoken” (219). In other words, we are not the “origin” (219) of our thoughts, feelings, and utterances—every time we think we speak our own words, the framework and lineage that actually produced those words is hidden. Thus, when it comes to injurious utterances, Butler is concerned with the following: “if the utterance is to be prosecuted, where and when would that prosecution begin, and where and when would it end?” (219).

Can we prosecute history? Institutions? Where do we draw a line, if at all, between personal responsibility and inherited structures of feeling and citations? How can we prosecute individuals when dominant orders (e. g. the Supreme Court) systematically sanction certain kinds of injurious speech and behavior? Butler thinks that “there are probably occasions when [subjects] should” (220) be prosecuted for their injurious words, but she wonders if “understanding from where speech derives its powers to wound [could] alter our conception of what it might mean to counter that wounding power” (220).

While reading this, I couldn’t get the recent tragedy of Jamey Rodemeyer out of my mind. Jamey, a 14-year-old boy, committed suicide after being bullied for years because of his sexual orientation. Much of this bullying occurred on the Web, particularly on sites like Formspring—forums that allow you to publicly but anonymously pose questions and comments to account owners. Jamey’s story is sadly one that we are hearing too often.

More and more, reports of suicide in young persons are linked to bullying of that person’s confirmed or suspected sexual orientation and/or gender identity. Cyberbullying (especially in forums like Formspring or on social network sites where it’s easy to create fake accounts for the purpose of harassment) is also on the rise, perhaps because these sites almost guarantee that the one doing the bullying won’t be held responsible because of anonymity and privacy policies. In Jamey’s case, authorities are currently considering pressing charges against at least three classmates for whom they do have evidence of bullying, which include utterances such as “JAMIE IS STUPID, GAY, FAT ANND [sic] UGLY. HE MUST DIE!” and “I wouldn’t care if you died. No one would. So just do it : ) It would make everyone WAY more happier!”

While prosecution is difficult in cases like this, the students who bullied 15-year-old Phoebe Prince, who committed suicide in March 2010, all received some sort of sentencing, and the roommate of Tyler Clementi, the college student who committed suicide after his roommate released a recorded video of Tyler in a sexual encounter, was recently indicted. None of their charges were actually called bullying, but rather the acts that have been deemed as playing a role in the person’s suicide. As more of these reports make it into the mainstream media, the more discussion about anti-bullying legislation has entered the conversations.

With these cases in mind, it’s difficult to wrap my mind around the ideas put forth by Butler. Yes, the dominant order systemically enforces homophobia, racism, classism, transphobia, fatphobia, and a multitude of other —isms and —phobias of all those bodies who fall outside of or threaten the norm. Yes, we are interpellated, yes we have structures of feeling that conceal the dominant order’s oppressive aims. So yes, bullying might be a symptom of larger issues. But how can we not hold individuals accountable for statements like the ones mentioned above to Jamey?

What might Butler say about injurious speech’s ability to contribute to these tragic ends? Who else could be even held responsible for such blatant speech consciously being put forth with the intent of hurting another? If all subjects are subject to the dominant order’s oppressive aims, why aren’t all normative subjects bullying or uttering injurious speech? In regard to legislation, Butler might argue that it would be difficult to create some kind of law when the very system creating the law helps perpetuate that which it would supposedly be preventing. With that in mind, should anti-bullying legislation focus on the individuals who bully, or should the context(s) of the individual (Family? Neighborhood? Communities?) be taken into account? When can and should the subject be responsible? How might we intervene at levels beside the individual, and how might these interventions occur in a way that doesn’t serve the hegemonic order?

I have said many times in these blog entries that I am fortunate. Of course, being fortunate does not mean you never experience pain. Pain fades, however, and a little hurt you can get over.

Harm, on the other hand, is a hurt that won’t heal. It is ongoing, the result of repetitive hurts—or traumatic ones. Harm is usually over time, and it is often systematic. Harm is a pervasive threat. And harm makes us anxious.

I pondered the connection between hurt, harm and anxiety in reading Butler’s “Burning Acts, Injurious Speech.” The decision of the Supreme Court in R.A.V. v. St Paul constitutes “highly consequential speech” (223) that Butler suggests can itself be seen as harmful. In its decision, Butler tells us, the Court erases both the blackness of the victimized family and the historical connotations of cross burning. It negates the hurt to the family and the harm to society from such actions and, incredibly, places harm with the Minnesota State Supreme Court, whose previous application of a St. Paul city ordinance, Justice Scalia implied, threatened the First Amendment. Butler suggests that the justices’ writing might be seen as “anxious deflections and reversals of the injurious action at hand” (227). And I believe, as she suggests, that anxious responses to harm have the capacity to cause additional harm.

The impact of harm—even the threat of harm—makes us anxious. When the citizens of Los Angeles responded to the harm caused by the LAPD (over time, but graphically in the video of the 1991 beating of Rodney King and indirectly in the jury’s acquittal of the officers inflicting the violence) by burning their own city, their anxiety and anger caused additional harm.

What happens when those in power act on their anxiety? Was the Supreme Court in its 1992 R.A.V. v. St Paul decision “protecting itself against [past and future] riots. . . which appeared to be attacking the system of justice itself,” as Butler theorizes? (227)

The failure to deal appropriately with harm in our society yields more harm. When we ignore or in our anxiety attempt to invert the harm of racism, homophobia, and sexism, we lose. When we substitute the injured for the injurer (229), we harm. Butler urges us to look at the “discursive power” of the Supreme Court (223), claiming rightly that its “speech [sometimes] exercises the power to injure precisely by virtue of being invested with the authority to adjudicate the injurious power of speech” (229).

Our freedom of speech is limited; it is restricted if it causes harm. As Butler observes, it can be difficult to say what speech/which actions are harmful. In “Burning Acts, Injurious Speech,” she points out inconsistencies and incongruities in who or what is protected and who or what is harmed. I appreciate, as always, her intellect and her ability to pick apart language and assumptions. But sometimes, I want to retreat to what I can do—what the average person can do about the issues she raises. Primum non nocere—First, do no harm. The charge should apply to everyone, not just doctors. And then, it should be followed by another rule: Work to right the harm already existing in society.

Having previously read MacKinnon’s work on pornography in relation to how liberalism undermines women’s rights, I was pleased to see Butler address MacKinnon’s theories in “Burning Acts, Injurious Speech.”  As far as we know, in 1997, Butler disagreed with MacKinnon’s assertion that pornography “establish[es] what women are said to exist as, are seen as, are treated as, constructing the social reality of what a woman is…” (232).  Butler roots her case against MacKinnon’s thesis in the notion that pornography presents “unrealizable” imperatives and thus merely “depicts” a constructed social reality as opposed to “delivering” and successfully projecting the constructions onto the performances of women’s bodies.

However, with fourteen years having passed since the publication of “Burning Acts, Injurious Speech,” I would argue that at least some of the imperatives of pornography have become realizable.  With the rising popularity of labiaplasty and pubic depilation, the images depicted in pornography can also now be “delivered” onto the body through physical modification.  Perhaps “the faulty imaginary relations” of pornography cannot fully be enacted, but performances of genital modification surely reach for that enactment (235).  If gender is merely the result of a repetition of performances, can we think of procedures like labiaplasty as an extreme performative undertaking that supports the coherence of future performance?

On another note, I find it interesting that MacKinnon and Butler omit direct considerations of how pornography constructs a limiting social reality for men.  Although I abhor that pornography grants dominance to masculinity in a way that furthers rape culture, it shouldn’t be ignored that pornography contains imperatives of the male performance of sexuality that are depicted and “delivered” onto the bodies of men.  Depilation and muscularity are just two of the “desirables” of masculinity that are constructed through pornography.  Many of these constructions of masculinity work to simultaneously promote the sexual dominance of males while policing performances of masculine sexuality.

How do you think Butler would respond to the idea that men are both exalted and policed by pornography?  Would the tranference of a socially constructed reality from a visual field to a “lived field” be disrupted by the possibility that pornography projects conflicting imperatives for masculinity?

“I want to suggest that the court’s speech carries with it its own violence, and that the very institution that is invested with the authority to adjudicate the problem of hate speech recirculates and redirects that hatred in and as its own highly consequential speech, often by co-opting the very language that it seeks to adjudicate.” – Butler, p. 233.

“The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied.” – Supreme Court order denying Troy Davis a stay of execution, resulting in his death within the hour.

What the Supreme Court (and before them, the Georgia courts) did this past week was a tragic, shocking example of court-sanctioned violence. With one simple sentence, the Supreme Court condemned a man to death, ignoring mountains of evidence that suggested his possible innocence.

In the Troy Davis case, the Supreme Court’s one-line refusal to stay the execution reenforces Butler’s assertion that the judicial system has its own brand of hate speech, in this particular instance, denying a motion which directly results in someone’s death. The stay of execution is silent on matters of racial justice, on legal principles such as reasonable doubt, and on the judicial system’s history of perpetuating racism and inequality. This silence is criminal. Similarly to the way the Court reacted to the cross burning case Butler discusses, this one-line refusal strips Troy Davis of his civil rights in refusing to acknowledge that he is constitutionally entitled to a fair trial.

“Here it is clear that what is needed is not a better understanding of speech acts or the injurious power of speech,” Butler says, “but the strategic and contradictory uses to which the Court puts these various formulations” (p. 229). How do we make sense of the Supreme Court’s willingness to perpetuate the denial of justice, especially given that their function as a legal body is to make sure that all citizens’ rights are protected?