Towards a rhetorical understanding of incitement: unfinished conversations with James Arnt Aune.

• Author: Hickey, Jeremiah
• Position: Essay

We begin with quotes, notes, fragmented memories of conversations, blog postings, and text messages. Jim found himself, as all of us do, critiquing the world while living in it, trying to work through a system whose free speech laws have yet to find proper footing amongst technological advancements, where incitement is always already constituted in the liberal tradition of free speech--where the cure for bad speech is simply more speech, where there is still not any meaningful legal recognition of cyber bullying or inciting suicide. In this piece, in this space, we pick up our quotes, notes, fragmented memories of conversations, blog postings, and text messages. We begin to talk with Jim, and with each other, again: "It is not incumbent upon you to finish the task. Yet, you are not free to desist from it" (Rabbi Tarfon, Pirkei Avot 2:16).

During his academic career, Aune's thoughts on the meaning of the First Amendment occurred through many venues: his editorship of Freedom of Expression Yearbook, his thoughts scattered throughout his generously shared notes from his undergraduate and graduate courses like Rhetoric of Social Movements, Freedom of Expression, and the Rhetoric of Religion; and, most importantly, his public engagement through his writings on the Blogora. Because his First Amendment thinking developed through traditional and nontraditional forms of public discourse, this article begins to work through the violence of silence. We embrace Aune's (2012b) method, asking "What is the implicit theory of language and rhetoric here?" in an effort to weave together Aune's evolving theory of incitement.

In this paper we offer an assessment of Aune's writings germane to the First Amendment, focusing explicitly on Aune's discussion of incitement. According to Aune's work, incitement not only exists as a legal concept but also as political and social arguments that citizens employ to maintain and resist forms of social order. In particular, we argue that when examining cases that concern the communicative aspects of incitement, it is best to examine the power relationships that occur between and surround the speaker's attempt to incite the audience. By examining Aune's work on the communicative nature of incitement, we argue that rather than examine the degree to which the speech may lead to conduct, it is best to examine the relations of power inherent in the message itself; in the context of the communicative act and in the contact between the speaker and audience; and in the opportunity that the discourse allows for resistance. In order to complete our analysis, we will, first, contextualize Aune's thoughts on the First Amendment and incitement within the larger discussion of incitement as a communicative concept. Next, we will review Aune's discussion of incitement, especially his discussion of Judith Butler's Excitable Speech and Roman Jakobson's model of communication. Finally, we will offer four concluding thoughts on how Aune's work expands our understanding of the power relationships inherent in the study of incitement.

AUNE AS RHETORICAL AND LEGAL SCHOLAR

Throughout his academic career, Aune focused his ceaseless professional and personal attention on the importance of legal rhetoric to the field's historical and contemporary theory and research. Like legal theorist James Boyd White, Aune believed that legal theorizing is a distinct kind of rhetorical activity, "that art by which culture and community and character are constituted and transformed" (White 1985, pp. x-xi). Aune spent the majority of his academic career studying and inspiring his students to study the ways in which communicative practices constitute the law, and vice versa. Further, Aune was also fascinated by the possibility for transformation--of law, of discipline, of community, of self-through rhetoric. Richard Weaver's "Phaedrus and the Nature of Rhetoric" (1985), serve as one of Aune's favorite quotations on the nature of rhetoric. Weaver writes,

Rhetoric at its truest seeks to perfect men by showing them better versions of themselves, links in that chain leading up to the ideal, which only the intellect can apprehend and only the soul affection for. This is the justified affection of which no one can be ashamed, and he who feels no influence of it is truly outside the communication of minds. Rhetoric appears, finally, as a means by which the impulse of the soul to be ever moving is redeemed, (p. 25)

Weaver's quote provides a normative model of rhetoric that provides us with the ideal. But what happens when we fail to reach that ideal?

If you are familiar with Aune's work and thoughts on the First Amendment, you probably are reciting the quote he would offer as a response to this question: Justice Louis Brandeis' concurring opinion in Whitney v. California (1927), "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." Often in our political, social, and cultural discourse we fail to create links that will chain up to an ideal. Because of self-interest and incommensurability, the limitations of knowledge and reason, or our own failures or unwillingness to engage others in debate, citizens require robust political debate to fuel fulfillment in political, social, philosophical, and cultural lives. As citizens pursue their own individual or collective paths, they find opportunities to clash even if the clash occurs when multiple parties lack the good-faith effort to debate with one another. The law, specifically First Amendment law, simultaneously becomes the way in which communities are to be constituted and a location of being in which citizens may draw upon to change the law and, consequently, community.

Nowhere was Aune's commitment to understanding the way in which the law constitutes communities and serves as a site of resistance stronger than in his stance on the First Amendment. Throughout his academic career, Aune (2007) presented himself as a fierce defender of freedom of speech and a protector of minority rights in society. On campuses, at conferences, and in publications, Aune maintained a near free speech absolutist stance as the primary means for ethical engagement: "Sometimes when you don't agree on anything else, a bedrock commitment to the value of debate and free speech do in fact get you somewhere." In Rhetorical Democracy: Discursive Practices of Civic Engagement (2004), he argues:

We need to defend free speech. I was struck recently by economist Amartya Sen's finding that no nation with a free press and free speech ever has experienced a famine. We can be active on our campus in promoting free speech against groups like American Council of Trustees and Alumni (ACTA, who began drawing up an enemies list of disloyal academics last fall), but also against ourselves, who in the name of sensitivity have stifled classroom debate for a decade, (pp. 91-92)

Aune believed that a vibrant public sphere is necessary to maintain a vibrant pluralistic society. In societies that possess a vibrant public sphere, political groups have the possibility to fight for rights in society, especially if they lack the material resources or stand at a political disadvantage to powerful interests in society.

SPEECH AS ACTION: THE COMMUNICATIVE NATURE OF INCITEMENT

While defending a near absolutist view of free speech, Aune was well-versed in the challenges laden in a liberal commitment to free speech. Aune (2011b) described himself as a "liberal legalist" who believed the "right to speak one's mind is so fundamental to any system of ordered liberty." He had a keen understanding that the priority of persuasion in the traditional, Habermasian public sphere means that words matter even if those words lead to dangerous outcomes or social harms as dangerous speech possesses the potential for violence, especially violence against political and/or racial/ethnic minorities who lack access and power in the political process. In response to the Supreme Court's decision in Snyder v. Phelps (2011), Aune praises not just Chief Justice John G. Roberts's recognition of the tragedy in the case but the Chief Justice's passionate defense of freedom of speech: "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and-as it did here-inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker" (p. 1220). Yet, while defending a near absolutist view of freedom of speech, Aune recognized the ways in which the free speech narrative functions hegemonically (Battaglia, 2010) to govern socially-agreed upon standards for the way in which First Amendment rights should be performed (i.e., notions of civility and decorum, privileging of rational and deliberative debate). Critical of the discipline's traditional emphasis on the creed, "everything can be talked out," Aune (2011a) writes, "The communicative norm in academe is genteel cruelty rather than open displays of emotion." He maintained "all discourse is strategic," and challenged academics to "set a higher standard among themselves."

Troubled by the outbreak in violence and the treatment of political minorities, Aune spent years, and in particular the final year of his life, trying to develop a communicative theory of incitement. In a 2007 campus newspaper interview with Texas A&M University student Abid Mujtaba, Aune notes, "What [is] the borderline between speech and action? The difficulty has been to figure out what the boundaries are between acceptable advocacy of ideas and things that are in effect threats to people, [something] that is more like action." In 2005, Aune sought to explicate a theory of incitement from Judith Butler's Excitable Speech (1997). During the time of the Supreme Court's oral arguments in Snyder v. Phelps, Aune (2010) attempted to clarify the problem of hate speech...