there is no such thing as free speech fish interview

8/3/2019 There is No Such Thing as Free Speech Fish Interview

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There is no such thing as free speech": an interview with Stanley Fish

Stanley Fish discusses his book

There's no such thing as free speech ...

and it's a good thing, too (OUP, 1994)

with Peter Lowe & Annemarie Jonson

© all rights reserved

Q : Professor Fish, what do you mean when you say that there is no such thing as free speech?

A : Many discussions of free speech, especially by those whom I would call free speechideologues, begin by assuming as normative the situation in which speech is offered for its own

sake, just for the sake of expression. The idea is that free expression, the ability to open up your

mouth and deliver an opinion in a seminar-like atmosphere, is the typical situation and any

constraint on free expression is therefore a deviation from that typical or normative situation. I begin by saying that this is empirically false, that the prototypical academic situation, in which

you utter sentences only to solicit sentences in return with no thought of actions being taken, is infact anomalous. It is something that occurs only in the academy and for a very small number of

people.

Therefore, a theory of free speech which takes such weightless situations as being the centre of the subject seems to me to go wrong from the first. I begin from the opposite direction. I believe

the situation of constraint is the normative one and that the distinctions which are to be made are

between differing situations of constraint; rather than a distinction between constraint on the onehand and a condition of no constraint on the other. Another way to put this is to say that, except

in a seminar-like situation, when one speaks to another person, it is usually for an instrumental purpose: you are trying to get someone to do something, you are trying to urge an idea and, downthe road, a course of action. These are the reasons for which speech exists and it is in that sense

that I say that there is no such thing as "free speech", that is, speech that has as its rationale

nothing more than its own production.

Q : In your work you have stated that free speech must be understood against a background of

the originary exclusion which gives it meaning. What are the conditions giving rise to this

originary exclusion?

A : Before I got into the First Amendment or free speech business I was for many years and still

am a teacher of English Renaissance poetry and prose, especially that of John Milton. Milton'scontribution to the history of the discussion of free speech and censorship is of course the

Areopagitica, published in 1643, a vigorous and eloquent protest against a licencing law passed

by the parliament.

Much of the Areopagitica is a celebration of toleration in matters of expression, for reasons that

have now become more familiar to us: the more information the better able are we to choose

wisely; the more information the better are we able to exercise our intellects so that they become



more refined and perceptive. Another part of Milton's argument is that when something is

suppressed it does not go away. It just takes on a romantic underground life and flourishes rather

than being brought to the light of day where it might be refuted. All of these are today familiar arguments and components of free speech rhetoric.

There is one part, however, of Milton's Areopagitica that is rarely noticed in such discussionsand when noticed is noticed with some embarrassment. About three quarters of the way through

the tract Milton says, "Now you understand of course", and the tone in his prose suggests that he

assumes that most of his readers have always understood this, "that when I speak of tolerationand free expression I don't mean Catholics. Them we extirpate".1 Milton's admirers, especially

those who have linked him to John Stuart Mill as one of the cornerstones of the free speech

tradition, have difficulty with this passage and attempt to explain it away by saying that Milton,

because of the limitation of his own historical period, was not able to see what we are able to see.The idea is that our conception of free speech is more capacious, more truly free, than this

because we do not have an exclusion up our sleeves, ready to be sprung.

But the difference between Milton and us is a difference in what we would exclude from thezone of "free speech", not a difference between exclusion and inclusion. When Milton names

Catholic discourse as the exception to his toleration he does so because in his view Catholicspeech is subversive of everything speech, in general, is supposed to do -- keep the conversation

going, continue the search for Truth. In short, if speech is really to be free in the sense that he

desires, Catholics cannot be allowed freely to produce it. This might seem paradoxical, but in

fact it is Milton's recognition of a general condition: free speech is what's left over when youhave determined which forms of speech cannot be permitted to flourish. The "free speech zone"

emerges against the background of what has been excluded. Everyone begins by assuming what

shouldn't be said; otherwise there would be no point to saying anything.

Another example: one of the foremost proponents of free speech in this country is Nat Hentoff, a

journalist well known for his jazz criticism and who has also taken up the cause of free speech nomatter how disreputable or offensive the speech in question. But about two years ago he

recanted, when he drew the line at campuses allowing certain forms of anti-semitic speech to

flourish. Disciples of a certain Muslim group came to campuses and began to talk about "bageleating vermin who had escaped from caves in the middle ages and were now, as then, infecting

the world". Hentoff said this has gone too far. My point is that everyone has such a trigger point,

which is either acknowledged at the beginning or emerges in a moment of crisis.

There is no one who believes that everything should be said. Most of us today would not say,

"Well, of course, you understand I don't mean toleration of Catholics". But we would say things

like, "I don't mean toleration of neo-nazis" or "I don't mean toleration of discourses advocatingchild molestation". There is no-one in the history of the world who has ever been in favour of

free speech.

Q : You have also referred to speech being only intelligible against a background of what isn't

being said, the background of what already has been silenced. What is the silence you're talking

about?



A : The silence has to do with the shape of any discourse. As Hobbes brilliantly points out again

and again in his Leviathan, thought of a sequential and rational kind can only proceed when

some set of stipulated definitions has been put at the beginning and established. Unless you havedefinitions of your topic, of your subject, demarcations of the field that you are about to explore,

you cannot proceed because you have no direction. Hobbes also points out that such stipulative

definitions are necessarily exclusionary. They exclude other possibilities, other possible ways of defining the field from which you might then have proceeded; since speech and reasoning can

only occur when something is already in place and since the something that is already in place

will be in place of something else that could have been in place, that something else which isn'tthere is the silent background against which the discourse resounds.

Q : You have written that speech is never a value in and of itself but is always produced within

the precincts of some assumed conception of the good to which it must yield in the event of conflict. Could you elaborate on this notion?

A : That's a wordy way of simply saying that when you talk you're talking in the service of

something. In any normal situation you speak for a reason: to inform, to command, to acquiesce,to ask a question, to further an agenda, to close an agenda down. Another way to put this is to

say that speech and communication are the signs of our distance from the condition we wouldmost like to inhabit.

In paradise or in heaven (I speak here only through report and not direct experience), discursive

speech is unnecessary because everyone is already in the place he or she would desire to be,allied in a perfect and an indistinguishable way with the good. Therefore there is no reason to say

anything to anyone; because again the only reason to say something to someone else is to

advance both of you in the direction you desire. But in heaven, everyone is at the place of optimal desire so it is imagined in great literature like Milton's Paradise Lost not as a scene of

communication, but as a scene of celebration. Heaven's inhabitants express themselves as a

chorus all of whose members sing the same song, and sound a note that is repetitive, ritual andceremonial -- in short a long endless amen or hallelujah. It is only in Heaven that speech is free

and spontaneous, because it doesn't mean anything; it doesn't have to mean anything. In this vale

of tears, speech means, has a purpose and when we feel this purpose threatened by some of speech's forms, we will always curtail it.

Australia does not have such a principle of free expression such as the First Amendment

enshrined in its Constitution. In what sense is it necessary or desirable for speech to be protectedunder a Constitution?

A : There is an important sense in which speech requires constitutional protection. Discussionsof the First Amendment are often discussions about the history of the First Amendment: the

reasons for which it was first instituted. One position, championed in the last thirty years by

Judge Robert Bork who was famously denied a position on the Supreme Court, is that theoriginal intention of the framers of the First Amendment was to protect political speech and

therefore to prevent the government from silencing its own critics. It is Bork's view that the

protection of political speech should mark the limits of First Amendment protection and

therefore First Amendment protection should not be extended to slander, pornography,



vituperation, and other socially undesirable forms of expression. I agree with Judge Bork. It

seems to me that the First Amendment's protection of political speech is critical in a society

which does not want its government to perpetuate by a number of illegitimate means thesilencing of its critics.

This view of the First Amendment, a view that thought of the scope of its protection rather narrowly, was pretty much the standard view until the 1950s and 1960s. It is only since that time

that a view of free speech protection which I would call libertarian has arisen and more or less

won the field. By libertarian I mean a view of the First Amendment which privileges and valuesexpression in and of itself independently of any real world consequence the speech might have.

Before the '50s and '60s there were a number of balancing tests that were at the heart of First

Amendment jurisprudence; the rights of individuals to free expression were recognized but theywere balanced against other rights and values. And so you had a series of formulae put forward

by the courts designed to instruct you in how to balance various interests. One famous formula,

put forward by Oliver Wendell Holmes in a series of cases in the beginning of the twentieth

century, was the test of 'clear and present danger', which meant that expression was to be allowedin the service of robust and wide open debate in a democratic society up to the point where it

seemed that the effect of that expression might constitute a danger to the very democratic processthat was allowing it. Not surprisingly, both sides were dissatisfied with this formula. One side

feared that with a 'clear and present danger test' in force some might be tempted to see the clear

and present danger so early on that it amounted to censorship, others feared that a clear and

present danger test if adhered to might lead to recognizing the danger only when it hadmaterialized and it was too late to do anything about it.

Whichever side of this particular debate you might be on I think my point holds -- there was asense of balancing the rights of individuals to freely deliver their opinions against the desires and

needs of the society and the community. Since the '50s and '60s that second pole has dropped out

and more and more you get a First Amendment rhetoric of individual liberty which has the effectof producing a roster of First Amendment heroes, who gain that status by uttering the vilest

statements that can be imagined in situations designed to cause harm, embarrassment, and

psychological damage to others. These persons are then put forward as representing the bestinstincts of the American experiment.

In this particular version of the First Amendment you get points (a) for being as vile as possible,

and (b) for championing the rights of those you consider vile. This is a view associated in thiscountry with the American Civil Liberties Union, an organisation whose project is to go out and

find things it hates and then grow them.

Q : But isn't it the case that, sometimes, the best principles which underpin many social justice

and equity issues are raised for consideration and debate only when the worst cases are involved?

A : I don't believe in such things as principles, if by that word you mean abstract rules which will

apply to any number of fact situations while not being attached to any of them. Whenever such a

"principle" is formulated it seems to me to have only two possible shapes: either it's perfectly

empty because it is formulated at so high a level of generality -- "be ye perfect" -- that nothing or



everything follows from it; or it is full of an agenda that has not yet announced itself and so is

not a principle -- in the claimed sense -- at all. Nevertheless, the rhetorical weight of so called

principles is considerable. If you can get the right "principles" on your side, if you can announceyour own program and wrap it literally in the flag of the right high- sounding phrases, you can

have a great advantage over your opponents. That is why, even though I am always arguing

against the coherence of most First Amendment arguments and doctrines, I never urge people tostop using First Amendment formulas -- because they have so much resonance. Freedom of

speech, individual rights, the establishment of autonomy, the freedom from governmental

restraint -- these are magic phrases. The trick is to take those magic phrases and fill them in withthe content that will then generate the outcome that you desire.

Q : You have written that free speech is a conceptual impossibility as the condition of speech

being free in the first place is unrealizable. Why is this so?

A : The condition of speech being free is not only unrealizable, it is also undesirable. It would be

a condition in which speech was offered for no reason whatsoever. Once speech is offered for a

reason it is necessarily, if only silently, negating all of the other reasons for which one mighthave spoken. Therefore the only condition in which free speech would be realizable is if the

speech didn't mean anything. Free speech is speech that doesn't mean anything.

Once meaning, assertion, predication get into the act the condition of freedom has already been

lost and, as I would say, well lost because you want speech to mean something; you don't want to

live in a world where people's utterances are weightless -- neither commit to anything, nor illuminate or challenge you in any way. The impossibility of free speech is one of the happy facts

of our condition and not a fact to be lamented. There's no such thing as free speech and it's a

good thing too.

Q : How do you assess the contribution of Critical Race Theory2 to the discourse grounding First

Amendment rhetoric?

A : I think Critical Race Theorists are in a difficult position once they accept First Amendment

rhetoric and look for a moral high ground from the vantage point of which racist speakers willeither be shown the error of their ways or universally condemned. Insofar as critical race

theorists buy into liberalism's valorization of rational discourse, they will think that their job is to

show that racist speech is irrational and therefore is in some sense not speech at all. But this is to

mistake both the nature of the enemy and the strategy for defeating him.

Those who utter racist speech (as we call it) would not accept that designation. The people that

we think of as racist do not wake up in the morning and say to themselves "Today I'm going togo out and spew racist speech". What they say (and it's exactly what we say) is, "Today I am

going to go out and tell the truth." Once you realise that racists don't think of themselves as

racists but as tellers of the truth, then you realise that hate speech or racist speech as wedesignate it is not an anomaly, is not a cognitive mistake, is not a correctable error, is not

something that can be diagnosed and therefore cured, but is in fact the rationality and truth

telling of a vision we happen to despise.



The correct response to a vision or a morality that you despise is not to try and cure it or to make

its adherents sit down and read John Stuart Mill's On Liberty, that's not going to do the job. The

only way to fight hate speech or racist speech is to recognize it as the speech of your enemy andwhat you do in response to the speech of your enemy is not prescribe a medication for it but

attempt to stamp it out. So long as Critical Race Theory and others fall into the liberal

universalist assumption of regarding hate speech as some kind of anomaly which could berecognized as such by everyone, they're going to lose the game. They will win the game only if

they really try to win it, rather than falling in with Justice Brandeis' pronouncement that

"Sunshine is the best disinfectant".

This bromide flies in the face of all recorded history which tells us that forms of speech, once

they get into circulation, do not wither away in the light of day; rather they attract the attention of

some hearers, and begin to circulate in a more effective way. I know that this is heresy in theliberal discourse to which we all are, in some sense, committed. But it seems to me that I must

agree with the American politician and journalist, Pat Buchanan, who once said, "If you can

pollute the physical environment, you can pollute the cultural and mental environment".

This is an abridged version of an interview with Stanley Fish by Peter Lowe & Annemarie

Jonson originally published in UTS Review.Thanks to Stephen Muecke and Peter Lowe for their help and co-operation.

Stanley Fish is Professor of English in Arts and Science and Professor of Law at Duke

University, North Carolina. He is a leading cultural and literary theorist, and his books includeDoing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and

Legal Studies (Duke UP, 1990) and Professional Correctness: Literary Studies and Political

Change (Clarendon Press, 1996).

References

1. John Milton, Prose Writings (London: Dent Dutton, 1974), 182.

2. For an examination of the relationship of Critical Race Theory to the First Amendment seeMari J Matsuda, Charles R Lawrence III, Richard Delgado and Kimberlè Williams Crenshaw

(eds), Words that Wound: Critical Race Theory, Assaultative Speech, and the First Amendment

(Boulder: Westview, 1993).

there is no such thing as free speech fish interview

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