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

by Stanley Fish
(Oxford University Press, 332 pp. $25)

The contemporary debate about free speech on the campus follows a predictable script. On one side stand the self-described absolutists. Proudly decrying political correctness, they claim to insist on principle. Invoking the specter of McCarthyism, they say that we may always control action, but that we may never control speech, however offensive we find it. On the other side are people who like to use the words "politics" and "power." They think that restrictions on speech are really all over the place, and that those restrictions are a product of--no surprise--"politics" and "power." For them, the question is not whether we should restrict speech, but whether the left or the right gets to decide whose speech will be restricted. In the words of Stanley Fish, free speech is "not an independent value but a political prize."

This is a confused and dreary debate, but it has major consequences, and we should try to figure out what is wrong with it. Fish's latest book is a fine occasion for such a clarification. A prominent member of the department of English at Duke, Fish has written a distinguished book on John Milton; and he is an influential literary theorist who has helped to establish the "reader response" school of literary criticism and has also argued that the meaning of a literary text is a function of the views of the "interpretive community." Recently, declaring himself a "pragmatist," Fish has become interested in law, where he is having a significant impact. He now teaches at Duke Law School and publishes in prominent law journals. His latest book consists of eighteen heterogeneons essays, a long introduction and an appendix in the form of an interview entitled "Fish Tales: A Conversation With 'The Contemporary Sophist.'"

Fish likes to say that "partisan politics," or some form of "political correctness," lies behind every assertion--from the right, from the left, from everywhere in between. Fish especially likes to say that there is no privileged place to stand. This claim, found on many pages of his book, is now prominent in many fields, including literature, anthropology, history and increasingly law; the ranks of an these fields are now swelled by the enemies of objectivity. I do not believe that this is a helpful or even an adequate claim. The idea that there is no privileged place to stand could mean that all of us make assumptions, have commitments and live in the world--in which case it is quite trivial, and hardly worth worrying over. Or the idea could mean that all views are equally valid and that we can never decide among them on the basis of good reasons--in which case it is deeply wrung.

And yet this denial of a privileged point of view is becoming popular, and so it is important to see what it is about. Fish has founded no school of thought--he is very much a special case--but he is influential, and what he thinks is thought in many other places, too. The first half of his book is mostly an attack on conservative critics of the university, whom Fish charges with treating traditional education as if it were nonpartisan or handed down from God. The second half is directed mostly against liberals and radicals; Fish does not identify himself with the campus left, whose politics he does not share, and whose belief in liberation he likes to ridicule. Many of the essays in the first half come from Fish's spirited debates with Dinesh D'Souza, author of Illiberal Education, a widely read book that arraigned modern universities for sacrificing educational standards to the causes of affirmative action and political correctness. In these essays, Fish stakes out his own position, which is anti-antipolitical correctness.

There are two parts to Fish's argument. The first is empirical. Fish says that the phenomenon of political correctness is, just as a matter of fact, overstated. On his view, well-financed right-wing groups have tried to "generalize a few fired incidents into an assertion of a wholesale crisis," feeding "the public's appetite for crisis with the help of a cadre of well-placed and largely ignorant journalists." But Fish doesn't just rely on facts. The second part of his argument, which is quite interesting and, I think, in some ways correct, is that the entire debate has been misdescribed. The contest is not between the advocates of merit or excellence and their left-wing adversaries, but between "two forms of political correctness." Before now, Fish says, there was also a political orthodoxy on the campus. It was just a different one: education was dominated by middle-class and upper-middle-class white males. Fish claims that it is a historical, or worse, to treat the new developments as imposing politics onto neutral territory. Instead we have a new set of political positions competing with the old.

According to Fish, complaints about "political correctness" have obscured this large point. Indeed, he thinks that there is no way of escaping "political correctness"--that everyone is in the grip of a certain set of convictions, many of them unanalyzed, and that to any particular person, those convictions will seem so self-evident that they will not even appear to be convictions. In his view, political correctness is literally inescapable, ubiquitous. It is not a characteristic of campus leftists alone.

In the title essay, Fish links his claim about the ubiquity of political correctness with an attack on the usual understandings of free speech. He says that freedom of speech does not exist, since social and even governmental intrusions on speech are inevitable (not good--inevitable). In some lamentably abstract jargon (of which most of the book is free): "all affirmations of freedom of expression" are "dependent for their force on an exception that literally carves out the space in which expression can then emerge." Thus "the freedom has never been general and has always been understood against the background of an originary exclusion that gives it meaning."

I am not entirely sure what this means, but I think that Fish is mostly emphasizing something simple and not really controversial: that the scope of the free speech principle is determined by exceptions to that principle. Some limits on speech are nearly inevitable--for example, banning "Fire'." in a crowded theater; protecting private homes against people who want to yell in your bedroom; preventing perjury, conspiracy, attempted bribery, false advertising. So the question is not whether we will limit speech--the absolutist's false question--but when we will do so.

Fish adds that any marketplace of ideas will inevitably be managed by government. By this he appears to mean something simple, too: government determines the contours of file market by establishing, say, property rights and the law relating to tort and contract. Any random person can't get on NBC OF write for The New York Times; and one reason is that government protects the property rights of both of these institutions, and any efforts to get access will be found to be unlawful acts of trespass. The playing field itself is a political construct. Fish says, too, that speech is not "free" in the sense that what people want to say is a product of social and ideological forces. Fish does not spend much time on this point, but he appears to mean that speakers are influenced, whether or not they are aware of it, by many social pressures, which form the background against which self-consciousness occurs.

Even though none of this is surprising, Fish thinks that a lot is at stake. If we are not free speech absolutists--and despite appearances, who really is?--the distinction between protected speech and unprotected speech will always show, in Fish's view, that a "political line" has been drawn. In a nutshell (and a mouthful):

Abstract concepts like free speech do not have any "natural" content but are filled with whatever content and direction one can manage to put into them.... Free speech in short is not an independent value but a political prize, and if that prize has been captured by a politics opposed to yours, it can no longer be invoked in ways that further your purposes, for it is now an obstacle to those purposes.... We have never had any normative guidance for marking off protected from unprotected speech.... In short, the name of the game has always been politics.

What about seeking principles to govern the system of free expression? Any line-drawing effort will rest "on disputable definitions and stipulations of value." The exercise "will always be a political and contestable action and therefore inseparable from the biases and blindnesses inherent in politics." With this point we get to the heart of what Fish considers to be his most important claims (and now we are dealing with some widely held views in academic circles). No view about free speech will be based on external and transcendent standards. No one is really an absolutist; this means that we are all partisans pushing political agendas. These claims help define parts of Fish's own creed, which he labels "pragmatism."

Unlike Fish, many people believe that a recognition of contingency--of the absence of extrahuman or transcendental standards--is liberating. It helps us see that we are often imprisoned by our own categories, and that we might do something other than what we do; it thus helps us embark on the project of figuring out what to do, by reference to our interests and our needs. This conviction can be found among many liberals and progressives, and many pragmatists, including two great founders of pragmatism, John Dewey and William James. But Fish has no patience with all this. There is nothing liberating about his form of pragmatism. We are still stuck in all we have: our beliefs. Fish therefore insists that pragmatism leads absolutely nowhere. He is weirdly proud of this. "Hearkening to me will lead to nothing. Hearkening to me is supposed to lead to nothing."

Thus Fish is sharply critical of Richard Rorty, Richard Posner and Ronald Dworkin--the first two self-styled pragmatists, the third sometimes said to fall in that category--on the ground that all three make recommendations for what society and law should actually do. Dworkin in particular says that judges are often reflective and critical, at least in the sense that they look for a theory behind a precedent or a legal text, and seek to decide hard cases by helping to develop that theory, or by deciding on the point of that precedent or text. Fish has no sympathy for this account. He thinks that people just do what they do, and that no theory behind a practice really is necessary to the practice, or helps to generate it. Nor is Fish at all enthusiastic about Posner's apparently innocuous (and pragmatic) suggestion that an inquiry into facts and consequences, illuminated by economics, can help with social and legal problems. "All I have to recommend is the game, which, since it doesn't need nay recommendations, will proceed on its way undeterred and unimproved by anything I have to say."

Fish is especially scornful of "liberalism," which he takes to embody the search for neutrality among competing agendas, the belief that reason can resolve everything and the insistence that conviction, belief and passion are "very close to fascism." It's well worth noting that this is a distinctly peculiar description of liberalism. All or almost all the great liberals---Madison, Mill, Dewey, Constant--thought nothing of the sort. Nor does the description fit such contemporary liberals as John Pawls, Ronald Dworkin, Susan Okin, T. M. Scanlon and Joseph Raz. In an essay on the law of contract, Fish contends that "legal reasoning is circular, question-begging and endlessly manipulable," but he thinks that these are not criticisms of legal reasoning. In Fish's view, the very legitimacy of legal practice depends on disguising ("effacing") these facts. Legitimacy requires an appearance of logical compulsion when manipulation is really at work. But for Fish, nothing is at all wrong with this "amazing trick." Where he finds circularity and manipulation, he issues no call to reform.

What might account for all this? I speculate that the animating impulse of Fish's work (like much other writing in this vein) is democratic. He wants to say that philosophers and theorists are nothing special, that they are just like the rest of us. His debunking impulse is intended to be antiaristocratic: he opposes what he sees as the aristocratic view that some people can stand above our practices and evaluate them. But does Fish's own position make sense? Is it a sensible way to be democratic? Or--the old pragmatic test--is his position useful?

I think that it is not. Loudly proclaiming the pragmatic heritage, Fish (most ironically) offers little that is useful to real human beings. Yet the original pragmatists, in whose mantle Fish wraps himself, were devoted to doing just that. They sought to avoid large abstractions in favor of examining what could be put to human use. To this end John Dewey, probably their most distinguished member, sharply challenged existing intellectual and social conventions and constantly insisted on the enterprise of reasserting liberalism's human possibilities. But Fish's pragmatism consists largely of abstractions, says little about human possibilities and ridicules liberalism. It comes across as mostly tired and even as self-righteous in the sense that it insists that we are stuck in our current understandings--our conventions--and that we cannot get a critical purchase on them.

The difference is important, for Fish is not alone here. Pragmatism is enjoying a huge rebirth in the academy, parry under the influence of Rorty; but in its new incarnation pragmatism has sometimes become a set of unhelpfully broad claims, geared not to solving human problems but to making them seem far away, even trivial. (I do not include all current pragmatists here; for all their differences, the philosopher Hilary Putnam and Posner--for example--are keeping faith with much of the pragmatic project.)

Let's pause for a moment with pragmatism's original concerns. All of the original pragmatists--Dewey, James, Charles Peirce--emphasized the human origins of human claims. Our views, they believed, are inevitably a product of our own interpretive filters; we do not have unmediated access to the world. In making this claim, the pragmatists criticized what is sometimes called "foundationalism" or "metaphysical realism." But the pragmatists did not think that we should give up on ideas like truth. For James, when an idea or belief is said to be true we should always ask "what concrete difference will its being true make in anyone's actual life? ... What, in short, is the truth's cash-value in experiential terms?" The pragmatists thought that we should not see truth in a disembodied way; we should think of truth not as a "stagnant property inherent" an idea (James's words), but as something that is made true by experiences and events. In short, we need to figure out what is useful to human beings, and what matters for them.

On this view, pragmatism does not mean that the idea of truth is a that objectivity is a false ideal or that it is unimportant to be rigorous about truth. It does not lead to the play of perspectives or to simple conventionalism. It hardly spells the end of philosophy. On the contrary, the human role in creating truth and meaning meant more philosophical work, not less philosophical work. The pragmatists offered a rallying cry for more rigor, more and better philosophy and more clarity, in the interest of exploring what difference our claims might make in our lives. Their insistence on the living relationship between truth and experience was not a cynical or sophistic enterprise.

Fish's version of pragmatism is nothing like this; it is as if Dewey and James have been put through a bizarre distorting mirror. Since Fish usually (and vulgarly) sees "political prizes" everywhere, he generally provides no one with a reason to accept any position, including Fish's own. ("Hearkening to me will lead to nothing. Hearkening to me is supposed to lead to nothing.") Furthermore, he recommends "the game" but is largely reluctant to play it; he says everything is political positioning, and then usually refuses to take political positions. This is an oddly distanced and self-insulating view, quite foreign to the pragmatic heritage.

Think for a moment about Fish's own claims. Does he believe that they are actually true? In what sense? Fish's own words strongly suggest that he thinks his own claims are true, not in the sense that they can be defended from an external or transcendental standpoint, but in the sense that they are based on good reasons, of the sort that sensible people use when evaluating arguments about facts and values. In making factual claims, Fish seems to want readers to adhere to conventional standards--showing with actual numbers, for example, that Shakespeare is still very widely read on the campus, hardly taking a back seat to African American writers. Mid in arguing about issues of value, he tries to appeal to the reader's own convictions, showing how past exclusionary practices are relevant to assessing current educational reforms.

Nor is it at all clear that metaphysical realism or foundationalism has really been routed. (Fish just asserts that the issue is closed, without engaging the issues involved.) But let us suppose that we really must be pragmatists, understanding pragmatism to mean very simply that there are no wholly extrahuman grounds for our beliefs, and that our beliefs are justified to the extent that they serve our own human purposes. Then all the work must begin. This was obvious to James and Dewey; it is also a starting point for Rawls's version of liberalism. Of course people often disagree about things that they care about, and of course it would be most surprising if partisan struggle did not affect ultimate outcomes. But what makes Fish's book (and much related current work) so puzzling is that it does not try to describe how people might deal with urgent questions, such as what a good system of free speech would look like. It rests instead on pretty uninteresting and abstract claims about the inevitability of exceptions and the likelihood of bias.

Turn now to the matter of free speech. In insisting that free speech is not an absolute, and in pointing to the inevitability of both social and governmental constraints, Fish is entirely right. What he says here is a useful corrective to many current claims. Free speech absolutism is at best a theology--indeed, a theology in which no one really believes. Often regulation of speech is perfectly acceptable; consider again the laws governing perjury, attempted bribery, false commercial speech, unlicensed medical and legal advice, criminal solicitation, access of speakers to private property, and much more.

But the failure of free speech absolutism does not mean that there is no such thing as free speech. (Speed limit laws exist even though ambulance drivers and police officers can go as fast as they need to go; there is a law against murder even though you can kill in self-defense; the fact that you can't make a contract to sell heroin doesn't eliminate freedom of contract, and so on.) Instead we need to develop principles by which we may run a good system of free expression. The whole question, a central one in contemporary democracies, is how to proceed when some distinctions are inevitable.

About this question, Fish has little to say. Still, we can start by insisting that in the American legal order, decisions are supposed to be made on the basis of reasons, not on the basis of authority or "nature." A system of free speech allows competing views to be brought forward. It permits people who disagree to offer reasons for their views. Reasons should be met with reasons. The goal of all this is a kind of deliberative democracy, in which political accountability and majority rule are combined with an obligation to allow judgments to emerge through public discussion. Ideals of this kind are fully compatible with the pragmatic conception of truth. I don't mean to say that Fish disparages public discussion or process or reason-giving; he doesn't really take a stand on them. But because Fish sees pragmatism as a kind of crude perspectivism, he is unable to discuss its basic ideals.

If we inspect those ideals, we will probably conclude that the current system of free expression has many problems. Some people think that new restrictions on campaign expenditures would violate the First Amendment, but our present approach to expenditures on campaigns cannot be easily justified; disparities in wealth should not translate, as they now do, into disparities in political influence. Nor is it clear that the current system of broadcasting regulation is anything to celebrate. Advertisers influence the content of programming, especially since they dislike controversial or depressing shows. The result is to deter risk-taking discussion, or even serious discussion of important topics. In any case, the economic market often creates an accelerating "race to the bottom," reducing quality, limiting programming about public issues and substituting sound bites and sensationalism for attention to what really matters.

In these circumstances, a different system of regulation might actually improve the speech market. We might consider greater public financing of elections, and at least some version of the fairness doctrine for broadcasters, requiring or encouraging licensees to attend to public issues and to ensure a diversity of views. Thus we should have campaign finance laws if they reduce the distorting effects of wealth on elections, and efforts to encourage political discussion on the airwaves should be entirely acceptable. At the very least, we need much more democratic talk and experimentation on these subjects.

All this suggests that we might understand the principle of free speech at least partly through the lens of democracy. If we do this, we will not be thrilled with a system of laissez-faire for speech; sometimes laissez-faire will not serve democratic goals. And from this simple point we are also on the way to coming to terms with the issue of hate speech, which occupies much of Fish's book. We should probably draw a distinction between speech codes that intrude on the exchange of ideas and speech codes that are limited to the regulation of simple epithets. The latter are far less objectionable than the former. Fish, once more, discusses none of these details. He briefly supports restrictions on "hate speech," which he does not define, and he says that he can "offer reasons" for his view. Then he offers no reasons.

So much for law. The problem of political correctness raises broad issues about how to think about the ideal of "neutrality" on the campus and elsewhere. Fish puts his finger on something infuriating about the current discussion, which is that it is simply not true that most universities are overrun by radical leftists, or that the traditional curriculum is neutral. Until recently, for example, history departments largely ignored women and constitutional law courses said little about slaver).

Fish is right to complain about the partisan aims behind many of the attacks on "political correctness," which are most selective in their complaints about slanted teaching. There is no similarly derisive term to describe what happens when a law professor disparages the concept of "fairness," when a historian ridicules feminism, when an economist treats distributional issues as trivial or silly. To be sure, the words "political correctness" aptly describe some deplorable classrooms in which literature is assessed only on political grounds and left-wing platitudes can be challenged at the student's risk; but those words could also be applied, say, to many economics departments, where a student risks ridicule if she challenges the assumptions of neoclassical economics. Consider even the "she" in the foregoing sentence, is it political? Is it correct?

But people like Fish are not in a good position to sort out these issues. Those who see partisan views everywhere are unlikely to be able to explain which challenges to traditional education have merit and which do not. Teachers have to figure out what and how to teach. Fish claims that every view about education rests on substantive assumptions or on "politics." If he means that everyone has convictions, and that any judgment about education must have substance behind it, then no one could object. But we have to know what that substance might be. And there is all the difference in the world between authoritarian education and liberal education, even if liberal education is not value-free.

The real question involves the appropriate content of liberal education at the university level, and about this matter claims about contingency and the biases of the past provide little help. Those who want to defend educational reform cannot rest content with a demonstration that defenders of tradition can be biased, too. They should come up with their own conception of a good education. They should defend that conception on the basis of reasons, which must include an account of the purpose of education. I think that the liberal tradition is well equipped to provide such a defense and such an account; and surely it is in a better position to do so than those who emphasize the unsurprising point that all claims are situated. If we are to revive the spirit of James and Dewey, both of them liberals, it should hardly be in a mood of perspectivism or conventionalism, but on the basis of their commitment to rigor and clarity, and their insistence on the relationship between intellectual life and the rest of life.

Cass R. Sunstein is Karl N. Lewellyn Professor of Jurisprudence at the University of Chicago Law School and author of (Free Press).

By Cass R. Sunstein