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There's No Such Thing As Free Speech: And It's a Good Thing, Too

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Stanley Fish is a provocative, clever, engaging.....charlatan. His main idea: censorship isn't bad, it just depends on what we're trying to do with it. Fish's most ludicrous claim is that the free speech paradigm is not "tolerant" of those who, like himself, argue for a "more restrictive" approach to expression. Yet here he is, writing, publishing, a profiting from a book with such a view. Did I miss something here? Apparently he feels that because many people vehemently disagree with him, he is not being tolerated. Poor Stanley.

Fish attempts to compare the prohibition of "hate speech" to other limits on expression, such as those on obscenity, fighting words, or matters of national security, without recognizing the miserable failures and excesses that have resulted from all three. His one promising analogy, libel/slander law, is left unexplored.

Fish also claims that the "slippery slope" argument is mere exaggeration. He argues that the PC culture on college campuses cannot be compared to McCarthyism because nobody has really been seriously victimized by it. His one piece of evidence is a quote from a Time magazine article. The Shadow University by Kors and Silvergate gives the lie to Fish's rosy scenario. Fish also fails to account for a mechanism by which we might recover from an unduly expansive or repressive application of his progressive censorship (an ideal borrowed from Marxist scholar Herbert Marcuse, an intellectual forebear whom he never acknowledges). Once Fish's program has been fully implemented, it is only a matter of time before such censorship precludes not only "hate" speech but arguments in favor of greater liberty of expression. For example, people often confuse the KKK's right to free speech with advocation of the KKK's views. Despite the logical fallacy of this belief, Fish's "consequentialist" view of speech cannot recognize this distinction. Civil libertarian Nat Hentoff wrote a recent op-ed describing how a woman defending the right of the KKK to rally in New York City was physically attacked by a mob of presumably "progressive" citizens who apparently held this view. THIS IS THE FACE OF "PROGRESSIVE CENSORSHIP." (Nor does Mr. Fish explain how claims of "hate speech" may be adjudicated without ultimately relying the wholly subjective assertions of the supposed victim, to the exclusion of objective fact. Case in point: the word "niggardly" as racist epithet).

Fish's views are typical of leftist scholars who promise us "true" or "real" freedom if only we implement their prescribed policies. The catch is that we may have to curtail some previously cherished freedoms, but don't worry, this is only temporary and done for the sake of the oppressed.....hmmmmm.....where have we heard this before?

What Fish and his ilk can't stand is watching a dynamic process like public discourse continue unimpeded. They feel a need to control it, or direct it, or guide it, or engineer it, however you want to describe it. Sorry Professor Fish, but I must unsheath the cliche he so dreads: the answer to bad speech is more good speech, not to ban the bad speech. When God forbade Adam & Eve from eating the apple, did it stop'em?

Free speech does not exist. American democracy is a sham. Our feeling that the holocaust was wrong is merely an irrational emotional reaction. The U.S. constitution allows churches to persecute nonbelievers - and that would be just fine. These - and many other controvertial opinions - are expressed by Stanley Fish, one of the leading postmodernists of today, in this book.

The core of Fish's argument is that *any* discussion, by the mere fact of *being* a discussion that uses words in a certain languages, involves "censorship", because the words, terms, and expressions used in the language have hidden biases in them. Therefore, we are better of without preserving the "illusion" that there is an objective right or wrong, or that democracy is objectively better than fascism, or that the first amendment means anything.

Fish, I think, is pulling an "Andy Kaufman" on us. It is highly unlikely that he actually believes any of this nonsense, despite his articulate defense of it. (Fish is, one must admit, a compelling writer, who can get you convinced - momentarily - of the most absurd nonsense. You only notice the logical lapses, non-sequitors, and stretching of anaolgies *way* past their breaking point - if at all - when you finish the reading.) I think it is much more probably that he just wants to get people angry by taking up a "provocative" position with a seemingly straight face - hence the book's title.

The question is what is Fish's purpose in all this. If his purpose is to get an apathetic public to question and defend their beliefs in freedom of speech and democracy, that is good. But it seems to me more likely that Fish is simply being meritricious for personal gain: he is using his considerable rhetorical and pedagogical talents to defend nonsense, not because he believes it or wants others to object to him, but in order to make a name for himself as academia's "bad boy".

Stanley Fish writes with an overarching theme: general principles and theories might be pragmatically necessary (as communicative rhetoric) but beyond that are just not real or feasible. It is the ultimate irony, then, that while reading this book I found myself asking why Fish didn't apply this 'princple' (and principle it is) to himself.

The idea is that principles like 'fairness,' 'free speech,' 'justice,' and 'equality,' are, in truth, no more than rhetorical abstractions we use to justify things WE like. To be honest, Fish argues well for this and gives us many examples. But, as Fish himself writes, 'general principles' can be taken too far and outlive any semblance of usefulness. It is when he tries to apply this 'principle' to different problems that he gets a little weird and alas, the 'no general principle' thing comes to bite HIM.

The first section is a collection of essays written for campus debates with Dinesh D'Souza in relation to affirmative action and campus diversity - Fish being ademantly for each of these. Fish's argument seems to be this: "Since 'fairness' and 'equality' can mean anything to anyone and they as principles don't exist, Mr. D'souza or anyone else shouldn't appeal to them. We should only ever appeal to historical context - history is everything here." The problem is that subtley, Fish is (a) making argument against him impossible because...what do you say to someone who refuses to acknowledge any principle at all1?; and (b) subtley sneaking general principles back in by saying: "When we take history into account, affirmative action (etc.) turns out to be fair (even though fairness is not a valid principle).

The next set of essays is on freedom of speech. Fish says that that too doesn't really exist and then proceeds to demonstrate by pointing out the obvious: no matter what 'theory' of free-speech one uses, there will always be hard cases where principle can't decide alone. He then proceeds to take principle too far and declare that because of this, the whole of free-speech law is a rhetorical put-on and therefore, things like hate-speech legislation or pornography bans are really justified. After all, if there are hard cases, then we can do whatever we'd like, right? The problem is that just because there are hard cases doesn't mean that we can't try to be as inclusive and libertarian as POSSIBLE. From Fish's recognition that free-speech always has boundaries doesn't follow that therefore we should just censor everything.

His next section is on legal theory and it is here he takes an almost opposite turn. He concludes (with Richard Posner) that general principles in law and legal theory are just as bogus as they are in any other field. BUT, he disagrees with people like the legal crit school (bet you didn't think Fish would do that!) by saying that here, general principles are at least pragmatically necessary so as to maintain the reason d'etre of law: consistency, order, and at least the appearance of trying to be impartial. Whereas in the other two sections, lack of general principles meant we should sort of do whatever is whatever, here - somehow - general principles have a vital role to play.

All of this is to say that while I enjoyed the book and it was very provocative, Fish does as most people who discover a 'general principle' do: he takes it a bit too far, applying it with a gusto to everything he can get his hands on. What he SOMETIMES pays lip-service to in these essays (and most of the time, not) is that while general principles may be hollow on examination, we can't help but use them as they are (a) valuable communicative tools; (b) unavoidable linguistically; and (c) pragmatically useful in things like law, science, philosophy, and even...literary criticism. LIke those Fish criticzes, I just think he is too drunk with his own "no principle" principle.

But get the book anyway. It is a great read and will most certainly make you think. Fish really is not that ultra-post-modern guy the conservatives like to pretend he is and some of the positions he takes in this book - against interdisciplinarianism and New Historicism - will prove it.

First, readers should be warned - if you're not comfortable with the jargon of academia, this book is going to be something of a slog - the author seems to be writing for other academics here, going so far in several of the essays to dispute points made in other articles, by other scholars, without sufficient context for readers who don't read the academic journals.

Once you hack your way through the erudite, convoluted obfuscation of the writing style, you're presented with 17 essays examining a spectrum of topics, largely intended to lead the reader to re-examine basic beliefs and assumptions that may not have previously been closely examined - a worthy goal, and the reason I picked this book up.

The rhetoric is as good as one would expect of a Professor of English, and it's understandable when the text convinces some readerss. The logic of his assertions, however, is remarkably strained, when it appears at all. Much of his reasoning is accomplished by way of case law - he'll take a few legal decisions about the topic, show the flaws in the logic used by the judge in those cases, and present this as proof of his own assertion. This is equivalent to proving that a wall is blue by showing that two people who claimed it as green are color-blind.

He uses unproven assertions, analogy, and observations with little relevance fairly convincingly, but the careful reader will spot the tricks and remain unconvinced.

In academia, one must publish or perish. If one must publish, it is an added benefit if one can re-publish one's work in a book for the general public. This has been used by other members of academia, and there's nothing wrong with it. If you understand the flaw in the logic of 'others have done it well, therefore, Mr. Fish does it well', then this book won't convince you of any of the author's assertions.

Stanley Fish takes advantage of the fact that many people fail to grasp an essential aspect regarding all human communities: censorship is unavoidable and intrinsic. It is inherently impossible to do otherwise. The only legitimate question is how extensive and invasive the censorship of the society will be. We are all censors and somebody will ultimately decide if and when someone has gone too far in violating the values that the overall group considers heretical. It's only a question where one draws the line. Everybody practices censorship. All societies must select and impose the values considered non negotiable. Heretics of either religious or secular dogmas are always punished. The philosophical premises of Logical Positivism are insufficient to underpin our democratic culture. Reasonable certitude is epistemologically the best humans can achieve. "Political correctness" is actually a neutral term. The only real debate is over the situations demanding tacit or explicit prohibition. Language is intrinsically nebulous. The meanings of words mutate endlessly. So what? Deconstructionism is merely the mistaken notion that since words cannot be preserved from inevitable change that logically we cannot oppose the forces of Nihilism. We might, for example, feel yucky about the murder of innocents in a concentration camp, but this is mere sentiment and not the result of rational thinking. Fish is simply taking advantage of our society's preference to indulge in self delusion. Many feel reluctant to admit that our values are rarely absolute and there are indeed times when they must appropriately be abandoned. The occasional exception, it is mistakenly perceived, always precariously places us on the slippery slope leading to Armageddon. The late Sidney Hook was one of the few who even dared to tackle the dilemma surrounding the paradoxes of democracy. An unspoken Taboo prevents many others from even admitting a problem exists. .

Stanley Fish admittedly has half a point to make when claiming that hiring practices are rarely an exercise in total objectivity and meritocracy. Such decisions made by flesh and blood human beings will indeed be flawed. Subconsciously, if not even consciously, factors such as class, race, gender, etc. may play a disturbing and invalid role. Nonetheless, Fish seemingly pushes his argument to the point of absurdity. The real answer, of course, is that human beings must learn to confront their prejudices and develop the virtuous habits to overcome them. Stanley Fish is merely building a career around the fact that prudential judgment, and not a hard-science absolutism, underpins our decision making. He is something of a con man who exaggerates his main points to deceive us regarding their ultimate value. Perhaps others can perceive the debate over Fish as merely an abstract intellectual exercise of no real importance to the real world. I am not one of these people. Deconstructionism asserts that human beings cannot achieve reasonable certitude in their decision making. The underpinnings of this epistemology destroy any hope of building a democratic society. The result is that we must ultimately rely on pure brute force. One possesses power not because of the ability to persuade others---but you can kick the crap out of them!

Fish presents essentially a social constructivist argument and aptly applies it to common political and social trends and concepts. That is currently a huge issue in philosophy and relates to debate on the objectivity/subjectivity of moral claims. There is much to Fish's argument but it might be better to study ethics and metaethics to get a better grasp of these issues. However, Fish's claims certainly are thought-provoking and relevant. He claims that there are no absolute moral concepts, which is a fair case to be made, and then applies it to free speech. The difficulty is that, even if one's support of free speech is not based on some universal morality, that does not imply that there is no internally coherent concept of free speech. Furthermore, Fish seems to argue solely for his own particular version of speech policy, to which he does not apply his own framework. Although free speech may not be an 'absolute value' there are too many sophisticated arguments attempting to whittle away any pretense of it. Even so, this book is definitely worth the read.

This series of essays is extremely thought-provoking and intellectually rigorous. I have returned to this book numerous times either for an essay or the entire collection. It makes me wish I could have been there for his debates with D'souza. Fish's thoughts on affirmative action, free speech, etc... are very timely and really make you ponder some of the deeper issues that face us literally every day because of legislation, simple discussion or introspection. I always love reading someone who takes you far away culture either as an american or a human being and reminds us that things do not always have to be as they are. He can make you look at you the world in a new way (as Edward Hall does for cultural anthropology). The essay format makes it very readable. I wanted to put in a word for those who may be browsing but are not part of the academic elite, don't know who Mencken, is and aren't into Milton critiques.

Stanley Fish is not content to be one of the greatest Milton scholars of our time--he also has to write brilliantly about the state of the academy and the nation. Clearly he has learned his rhetoric lessons from Milton. Fish is a rare creature, an extremely sharp intellect able to convey points without taking an anti-intellectual turn or resorting to the rather exclusive vocabularly common to so many of his colleagues. This particular outing finds the good professor Fish critiquing Free Speech as it is often resorted to in contemporary politics, taking issue with both right and left. But make no mistake: Fish has his politics, and the reader can chase them through some 307 pages of engagements with Supreme Court decisions, New Historicist literary scholars, the Critical Legal Studies movement, and plenty of neoconservatives. The only that's dry here is Fish's ample wit. The result is stunning: a critique of the Left from the Left which goes beyond the now-tired critique of political correctness to ask some very astute questions about how America will face its dark self in its past, present, and future. Flinch we might, but Fish won't let us simply turn our back and run in whichever direction we should choose

Now, sitting comfortably? Are you a liberal or a conservative? Do you think your views, sane, rational, fair, unbiased or generally decent? Well what if I told you that you are a biased, interested, often irrational and double-dealing individual who rigs debates, fixes the meanings of discourses (and things) and generally configures things to your own advantage and your opponent's disadvantage? OK, you would disagree with me: BUT THAT IS EXACTLY WHAT STANLEY FISH IS SAYING ABOUT YOU!! He does this in a series of extraordinary essays attacking conservatives and liberals alike (though under the post-Enlightenment rubric of "liberalism" in general, that belief system shared by most modern, Western thinkers) for their slipperiness in debate and their use of fake and polemical principles, actually the products of politics (a noble because unavoidable category for Fish). Fish's aim in all this seems to be to drag everyone back to their contextual and historical time and place(s) and to do away with the notion that we can avoid this or retreat into our various cognitive, abstract and universalising hiding places. What is left is what we had before Fish started writing and what, according to Fish, we will always have: political debate, the opportunity to convince your peers that this way is better than that, that this conclusion is better than that one. But, after Fish, we won't be able to do this by appealing to principles anymore since he has exposed them all as partisan and political. So "hoorah" for Stanley Fish's eye opening book, let's build a better world, and watch out, Stanley Fish is after you!

PoSTmodERnFoOL

One of the great things about Stanley Fish is that he tells us what we all already know, and gets us to pay him for it--even though we don't like what he tells us! After all, who DOESN'T know that the First Amendment is just a bunch of words. Who, these days, DOESN'T think that the law is just however the court happens to be feeling that day? The answer is, unfortunately, a great many, which is why there continues to be a need for people like Stanley Fish. The fact that somebody has to do this job is, I think, really too bad. In fact, it might not be too much to say that what we really ought to do, as a country, is to apologize to Mr. Fish for making him do things that would make any sensible person disgusted. You would think that, as a nation, we wouldn't need Fish after having had Mencken, but there you go. Anyway, if you are a bright undergraduate, you might want to read this book, especially because your teachers have (and they've laughed at it), but if you really want to know about the things Fish is talking about here, you would do a lot better reading Mencken's "Chrestomathy" at the least. And then, just maybe, you might begin to have some idea of the sort of country you are inhabiting.