Something Fishy

I needed a break from policy debate and court cases this week, so I decided to find some free speech philosophy to write about. A couple of weeks ago, I noticed an essay by Stanley Fish called "There's No Such Thing as Free Speech . . . And It's a Good Thing Too." Fish is a literary scholar who "got into the First Amendment or free speech business" because of his interest in John Milton. He currently keeps an editorial blog for the New York Times. Hoping that the essay would make a good blog topic, I bought Fish's book (which shares the essay's title) and read the essay.

As I read "There's No Such Thing as Free Speech," I noticed that the essay was a direct attack on my libertarian pondering in "Abhorring Hate Speech." Fish's essay completely contradicts my "faith" that political inaction regarding speech is best for society, and in his conclusion, he claims, contrary to my article, that hate speech should be regulated.

The Myth of Free Speech
Fish immediately attacks the existence of free speech. Essentially, he says, "Free Speech is just the name we give to the verbal behavior that serves the substantive agendas we wish to advance." In other words, it is simply a concept created for political use, something nice-sounding that we can cloak otherwise unappealing viewpoints with. This leads to the second point: "Restriction [of expression] . . . is constitutive of expression." The general framework of what we can and cannot say is a form of expression itself, and expression would be meaningless without it. Thus, Fish claims, "when the pinch comes . . . and the institution (be it the church, state, or university) is confronted by behavior subversive of its own rationale, it will respond by declaring . . . 'That we extirpate,' not because an exception to general freedom has suddenly . . . been announced, but because the freedom has never been general and has always been understood against the background of an ordinary exclusion that gives it meaning." In claiming that "There's No Such Thing as Free Speech," Fish means that as much as we pretend to support the lofty ideal of free speech, it is no more than a guise (new word picture) for our political aims, for speech derives its meaning from what is or is not restricted.

Speech and Action
Another trouble with an over-arching right to free speech, according to Fish, is that it is difficult to distinguish expression from action. Obviously, we cannot say that all action is speech (even though it has ideas), for "no one would think to frame a First Amendment that began, 'Congress shall make no law abridging freedom of action.'" Speech must be something more particular than a mere conveyor ideas. It "must be a special form of action lacking the aspects of action that cause it to be an object of regulation." Fish notes the "fighting words" exception as an action-like regulation of something that may have been speech. From this, he brings us back to the very same conclusion as above, that "there was never anything in the zone [of constitutionally protected speech] in the first place." There is no good way of separating speech from action, so "insofar as the point of the First Amendment is to identify speech separable from conduct . . . , there is no speech and therefore nothing for the First Amendment to protect."

Faith
Fish admits that my libertarian faith, if true, "would weaken one of [his] key points, that speech in and of itself cannot be a value." Though he does not answer my claim with any empirical evidence (I do not think such evidence could ever be collected), he argues, "it raises more questions than it answers" and can be seen as a strategy "designed to delegitimize the complaints of victimized groups." Fish attributes the high acceptance of this "faith" to the fact that people "do not wish what they correctly take to be the alternative. That alternative is politics." However, as mentioned above, Freedom of Speech is itself a political tool.

Fish concludes that free speech advocates "urge us to put our faith in apolitical abstractions, but the abstractions they invoke . . . only come in political guises, and therefore in trusting them we fall (unwittingly) under the sway of the very forces we wish to keep at bay." Thus, Fish feels no qualms stating that "the risk of not attending to hate speech is greater than the risk that by regulating it we will deprive ourselves of valuable voices."

My View
Fish repeatedly attacks free speech for its political nature. Politics is hardly a problem. The point of free speech, or of speech in general, is to advance some sort of policy, so why should it be wrong to use Free Speech as part of your argument. It certainly is not some sort of argument winning wild card. Either way, the political "misuse" of Free Speech is certainly not proof that it does not exist (and, incidentally, much of the essay is spent making this point). His next claim, the one about "institutions" extirpating any speech against their rationale is void for this simple reason: it does not always happen that way. Take, for example, the Communications Decency Act. Pornography is certainly against the "rationale" of our government, but the Supreme Court upheld the Freedom of Speech. In other words, Free Speech is not totally subjective to the caprices of authorities. In fact, noting the limited exceptions in over two hundred years of policy-making, it is fair to say that Free Speech does indeed exist, having a power of its own.

I have little patience for Fish's argument regarding the distinction between speech and action. I submit that speech is any action that only conveys ideas. When I write, I am conveying ideas, and doing nothing else. Words on a shirt convey ideas through a different medium, but still convey only ideas. However, should I trip someone, I would be both conveying an idea (that I do not like them) and acting (sticking my foot out). In almost every case, the difference between speech and action is intuitive. Paradoxically, it requires more mental effort to argue for a confusion between them.

Fish affirms the classic neoliberal viewpoint that we should solve all of our speech problems with fresh legislation, and rejects Libertarianism because of the questions it raises. On the contrary, Libertarianism only raises two significant questions: First, "Will we eventually learn the truth?" In the issue he raises, hate speech, the answer is almost positively affirmative. A glance at the last fifty years shows how far we have come already. Second, "Can we afford to wait?" This question is much harder, but, as Fish mentions, my answer is in his neoliberal alternative. To see if we prefer Freedom of Speech, we have only to look at the past and see times when the government would have liked to solve its problems by limiting it. The Pentagon Papers case comes to mind, as well as the "McCarthy era" of viewpoint discrimination. Freedom of Speech was the only protection against the government in these cases. And these are not, as Fish would like to claim, "slippery-slope" hypothetical situations, but real situations where freedom was unnecessarily restricted. It is interesting that Fish uses a minority rights issue like hate speech as an example, for what he proposes is nothing other than to throw the fate of the minority to the whims of the majority (this is, after all, a representative government). In the end, I would prefer to risk obnoxious speech by private citizens instead of government over-restriction and tyranny of the majority.

Fish's argument rests on a single definition: Free Speech. He claims that this freedom is created only by restrictions on it. On the contrary, Free Speech is the lack of restrictions. I would not claim that speech is now without restriction, but only that the restrictions are so few and so narrow that Free Speech really does exist. Beyond this definition, Fish gives a poor solution. He says that politicizing is a problem, so why hand control of speech to the politicians? He thinks Free Speech is a tool used against minorities, so why hand control of it to the majority? I acknowledge that we do not live in the best of all possible worlds, but I can not understand Fish's determination to destroy what good we have.

Dear Readers,
Along with your regular comments, I was wondering if you could help me out by suggesting a better definition of "speech" that would clearly and concisely separate it from action.

I could not find "There's No Such Thing as Free Speech . . . And It's a Good Thing Too" posted anywhere on the internet (which is why I quoted so much), but I did find an interview he did about it.

Extraneous:
An interesting article by Stanley Fish related to my last post.