Is Performative Speech Protected by the FIrst Amendment?

It is agreed that freedom of speech does not imply freedom to make whatever performative utterance one chooses.

It just isn’t agreed what “performative” means. Some (of whom you are the first I ever heard do so ever in my life) use it in this sense.

The usage condemnation is performative when, for example a judge condemns one to death – the sequelae are nonverbal and very direct (much more so before the current practice of 7 years or so if appeals). I agree that speech, which is in that sense, performative is not 1st amendment protected — judges do not have a first amendment right to declare guilty defendants who juries have found innocent (just cause they feel like it).

Others condemn performative speech, but they use the word with a new meaning*: roughly theatrical, ostentatious or (shudder) virtue signaling. Such performative speech includes chanting while Martin Peretz crosses Harvard Yard to be honored by the Harvard Social Studies Department.

The NY Times described the right to speak freely without being shunned. Clearly a right only of the elite (homeless people don’t even have to speak to be shunned). I will show my age by calling it the Studio 54th amendment.

I really really want to write** about how Alan Dershowitz keeps arguing that Martha’s Vinyarders violate his Studio 54th amendment rights.

He resents rejection after laboring for so many years in the Martha’s Vinyards of our Lord

* Why neologism ? Sometimes neologisms are created to describe a new concept. Much more often, they are used to pretend that a familiar and obvious statement is novel. SOmetimes they are used to suggest that a problem roughly as old as speech is new (or recently worsened). The new meaning of performative to mean theatrical (or ostentatious) is an example.

Such “performative” speech has been criticized for some time “And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward.” Mathew 6:5. Note the absense of the word “performative”

**however actually writing an actual essay on the topic would require actual work, so it aint gonna happen.