There’s No Such Thing As Free Speech ,.. And It’s a Good Thing, Too by Stanley Fish. Oxford University Press, 332 pp., $25.00.
January 31, 1994        

“Poetry makes nothing happen,” Auden wrote-- nothing political, anyway. And neither does philosophy, as Richard Rorty has recently shown. You’d never know it, though, from the last decade or so of all-out cultural polemics. The sky is falling, warns the right, and it’s the fault of tenured radicals and trendy artistes. Racism, sexism, and imperialism remain unsmashed, complains the left, and it’s the fault of the dominant cultural/ideological formations and of the literary/artistic canon that underwrites their hegemony. Along with several grains of truth, a certain amount of chaff has found its way into the arguments on both sides, as Rorty has pointed out with unfailing, almost excessive tact and Stanley Fish has pointed out with unflagging, almost excessive energy.

One can identify a master argument on each side. The right declares: judgments about merit, desert, responsibility, and liberty-- who to admit, hire, elect, promote, aid, or punish, what to teach, what to prohibit-- should be made according to permanent, neutral, objective, universal criteria, which will be acknowledged as valid and relevant by all rational, disinterested persons. This is only fair; it is, in fact, the definition of fairness. Past unfairness cannot justify present unfairness; two wrongs do not make a right. Ergo, away with affirmative action, racial redistricting, hate-speech codes, rainbow curricula, diversity requirements, administration-subsidized campus separatism, and all other violations of formal equality.

The left rejoins: beings who are always and necessarily partial, local, temporal, embodied, and purposive-- that is, human beings-- cannot attain universality, disinterestedness, or “pure” rationality. Principles and definitions are empty until interpreted, and every interpretation rests on a chain or network of assumptions and stipulations, which cannot all simultaneously be examined. Criteria and values do not come from nowhere (or from God or the nature of things), but from their proponents’ histories and interests. Since the latter must differ, so must the former, fundamentally and irreducibly. Ergo, to invoke objectivity, formal equality, and other purportedly nonpartisan, noncontroversial principles is bad faith, an effort to place one’s own perspective or goal above criticism.

This rejoinder-- “anti—foundationalism” in twenty-five words-- is true and
important. But to explain why would be to review Stanley Fish’s last book rather than his new one. Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989) comprehensively maps the consequences of anti—foundationalism, which only sounds like an arcane project until one reflects that anti—foundationalism is another name for philosophical modernity. Along with Rorty’s Consequences of Pragmatism (1982), Doing What Comes Naturally is the best available guide to where we are now, to our current understanding of (in my favorite definition of philosophy) “how things, in the largest sense of the term, hang together, in the largest sense of the term.” Where we are now is where we’ve always been-- still in base camp, civilizationally speaking-- but with the metaphysical mists dissolving. We’ve just about gotten rid of God, Reason, freedom, dignity, and even, pace Nietzsche, grammar; nearly dispensed with the illusion of salvation by theory (or anti-theory); and at last acknowledged the primacy (not quite the right word, since it implies a distinction--between theory and practice-- that Fish deconstructs) of the practical. And having repeatedly and epistemologically demonstrated that progress requires getting down to cases, Rorty and Fish have lately begun getting down to cases-- i.e., getting political.

For Rorty this has meant eloquent, wistful essays in the quarterlies on feminism, human rights, the responsibilities of intellectuals, and the hollowness of liberal hope. For Fish, who is about as wistful as the 12-cylinder engine of his infamous Jaguar, it has meant barnstorming the country in campus debates with Dinesh D’Spuzaand browbeating William F. Buckley Jr. on Firing Line. There’s No Such Thing As Free Speech collects the D’Souza debates and assorted essays, reviews, and addresses. Though more topical and less focused than Doing What Comes Naturally, it displays the same dazzling facility-- Fish’s stock in trade-- for making apparently solid and fundamental distinctions melt into air: direct vs. indirect evidence (in contract law), original intent vs. non-originalism (in constitutional law), determinate vs. indeterminate, neutral vs. partisan, principled vs. self-interested, logical vs. rhetorical, persuasion vs. force, autonomy vs. authority, individual vs. community. The book’s title and much of its contemporary salience derive from yet another, and perhaps the politically weightiest, of these deconstructive gambits: speech vs. action.

What is freedom of speech for? To have no answer at all to this question is, in a democratic society, to have nothing to say for ourselves. On the other hand, any answer undermines First Amendment absolutism. The standard answers in liberal political theory and First Amendment jurisprudence are, as Fish writes: “(1) the emergence of truth as the product of public discussion, (2) the self-fulfillment of individuals, who are best served if they have access to as many views and arguments as possible, and (3) the maintenance and furtherance of democratic process, of the serious business of self—government by an informed population.” Whatever one thinks of these customary reasons (I think they’re perfectly adequate, and so, it appears, does Fish), they all presuppose-- as will any other imaginable reason-- that speech has consequences and that we protect and encourage speech not for its own sake (whatever that might mean), regardless of the consequences (again, an empty and incoherent notion), but for the sake of those consequences. In ethics and politics, we are all consequentialists rather than absolutists, whether we know it or not.

To put this argument another way: what is free speech supposed to be free from? Political and legal restrictions, presumably. But commercial fraud, libel, perjury, declaiming in a stranger’s living room, and shouting “Fire!” in a crowded theater are all uncontroversially restricted forms of speech, whose boundaries are nevertheless sometimes contested. Those contests are resolved-- and hence the boundaries of “free” speech are determined-- legally and politically: not once and for all, through metaphysical discovery, but contingently and revisably, through democratic deliberation. And so, if free speech is conceived (as it is in much contemporary liberal and conservative rhetoric) as a pristine and protected region, founded on and defined by abstract, immutable rights, then there’s no such thing as free speech.

Why is that a good thing, too? What’s good is not contingency; contingency is just the way things are. What’s good, at least potentially, is the recognition that ahistorical abstractions like free speech (reason, equality, merit, tolerance, etc.) are, as currently deployed by neoconservatives, a swindle. “When such words and phrases are invoked,” Fish charges, “it is almost always as part of an effort to deprive moral and legal problems of their histories so that merely formal calculations can then be performed on phenomena that have been flattened out and no longer have their real-world shape.” This (which is, by the way, exactly the form and function of capitalist economic theory as well) is how efforts to correct for the limitations and vulnerabilities bequeathed by a history of disadvantage come to be stigmatized as discrimination, a reaction which is analogous to maiming or poisoning a rival and then inviting him to compete with you on equal terms, or to degrading and insulting someone from birth and then being surprised that she is easily intimidated or offended. That is plainly bad faith; and that, Fish demonstrates, is what the standard, “principled” arguments against affirmative action, hate-speech codes, etc. amount to.

There are, however, non-standard, pragmatist arguments against affirmative action, hate-speech codes, etc., and one wishes Fish had spared a little time from pulverizing Lynne Cheney, Arthur Schlesinger Jr., and Dinesh D’Souza to ponder them. “I am persuaded,” he concludes, judiciously enough, “that at the present moment the risk of not attending to hate speech is greater than the risk that by regulating it we will deprive ourselves of valuable voices and insights or slide down the slippery slope toward tyranny.” By all means, let us attend to hate speech, but we cannot very well do that if we suppress it. Hate speech is invaluable: it is the best indicator we have of hate. And like any other pathology, hate should not merely be officially and symbolically disapproved but rather understood and addressed-- I would even say alleviated. Hate does not come from nowhere. It comes from aggrieved, resentful people who deserve, as citizens, to have their grievances and resentments considered, even if they cannot articulate them properly. The racism of economically secure whites does not issue in hate speech but in tax revolts. Hate speech is (I suspect; I have no data) more often than not the last refuge of the beleaguered.

Similarly, it is unworthy (and uncharacteristically obtuse) of Fish to equate opposition to affirmative action with bigotry and crass selfishness. He remarks offhandedly, apropros the Miss Saigon episode, that “in the 1990s being sensitive to the sensibilities of Asians and blacks is a higher priority than being sensitive to the sensibilities of whites, who have been, and continue to be, doing quite well in the theater and everywhere else.” Actually, they haven’t been. Moreover, whites who are doing quite well are (again, I’m speculating) less often hostile to affirmative action than are working class ethnics and nonblack minorities whose livelihoods, neighborhoods, and moral identities are anything but secure.

There is another relevant argument, not exactly against affirmative action but aslant it. The purpose of affirmative action is to change the current distribution of jobs and educational credentials, since that is what determines the distribution of status, leisure, medical care, retirement security, and most other social and individual goods. But why should the former determine the latter? There is an intrinsic connection between medical, managerial, or any other kind of skill and the supreme pleasure one may feel practicing that skill and being esteemed by fellow practitioners. But there is no intrinsic connection between practicing any kind of skill and driving a Jaguar, flying first class, owning a summer home, having state-of-the-art consumer electronics, or sending one’s children to private schools. Now let’s face it: affirmative action is about spreading around Jaguars and private schools rather than spreading around the satisfactions of removing brain tumors or explicating Milton. The latter are not for everyone; and besides, usually only those with a reasonable chance of attaining them even want them. Why not, then, distribute sports cars and summer homes at random, by lot, so that cardiology, poetry, and investment banking will be practiced only by those attracted to and capable of their peculiar pleasures?

This ought to be Stanley Fish’s program, too. A few months ago in the London Review of Books there appeared an extraordinary essay, “Why Literary Criticism Is Like Virtue,” in which Fish expounded, fervently and convincingly, the joys of explicating Milton. The writer of that essay would obviously have become an inspired interpreter and inspiring teacher of Paradise Lost even if condemned to drive a Volvo or a tricycle. Which suggests, to me at least, yet another distributive scheme: why not pay the hardest, dullest, meanest jobs the most, letting the gaudy baubles serve as consolation prizes for those who are incapable of moral or intellectual jouissance?

Behind these admittedly flippant questions lurk some dauntingly grave and complex ones, which Fish is exceptionally well qualified to elucidate. In There’s No Such Thing As Free Speech he exuberantly trounces New Criterionism (and occasionally deals Nationism a box on the ear). This is amusing, and it needed to be done-- once. Let’s hope he will now apply his cherubic wit and diabolical dialectical prowess to another “great Argument” (Paradise Lost: I, 24): not merely deconstructing but completing and reconciling the fragmentary, conflicting political intuitions of his earnest and confused fellow citizens.