Fishing for the First Amendment

Michael Rectenwald

Stanley Fish’s The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump is an extended argument against what he sees as mistakenly broad interpretations of the First Amendment to the U.S. Constitution, as well as its misapplication to particular settings, especially the academy (Chapter 3), and, in the case of religious expression, the public sphere (Chapter 4). With this provocative little book, the Floersheimer Distinguished Visiting Professor of Law at Cardozo Law in New York, whom its website lauds as “one of this country’s leading public intellectuals, and a world-renowned literary theorist and legal scholar,”1 is bound to raise the hackles of free speech advocates both within the academy (however few they may be) and outside of it. Fish’s distinguished career as a literary critic, and his appointments in law at Duke University and Cardozo (despite having undertaken no formal legal education), make The First an intervention into the present-day free speech controversies that begs for our attention. Unfortunately, Fish’s new book does little to clarify the issues and in fact only compounds them by introducing a parade of specious homologies and straw man arguments. With his characteristic slipperiness, Fish is a sophisticated postmodern leftist who contrives convoluted arguments for proscribing expression that he doesn’t like.

Chapter 1, “Why Censorship is a Precondition of Free Speech,” is perhaps the most annoying installment of the book, although later chapters surely vie for that distinction. Right out of the gate, Fish argues that free speech is anything but free. It has costs, both for those who speak, and for those whom it affects. Furthermore, it cannot really be defined. “As a concept,” Fish claims, “it [freedom of speech] refuses to sit still and remains elusive to the grasp no matter how closely and rigorously it is examined.” (1) Throughout, Fish confuses the actual protections enshrined in the First Amendment itself with his own vague and fuzzy postmodern-inflected interpretations of it. The effect is to delimit the range of free speech and to abridge the protections of the First Amendment. In the process, Fish engages in the kind of sophistry for which postmodern theory is rightfully infamous.

The first straw man Fish erects is the suggestion that the First Amendment and its defenders posit a free speech absolutism. According to Fish, the First Amendment and its defenders would allow a citizen “to engage in speech without fear of repercussions.” (5) As any staunch free speech advocate knows, no speech is consequence-free, and no serious thinker is suggesting that it should be. Rather, free speech advocates maintain that one of the consequences shouldn't be the prohibition of protected speech or its punishment by the state or state-enabled actors who effectively function as state agents. Social opprobrium and other consequences cannot be precluded but banning speech should be. Fish certainly invites the latter.

Fish’s primary trick is to dissolve the boundary between speech and action, a typical leftist trope for asserting that no such distinction can be maintained:

If speech can be categorized as “symbolic action” (because it has an effect the state finds distressing) and action can be categorized as speech (because it sends a message the state wants to protect), isn’t the distinction infinitely manipulable? How do you draw the line, and who should be authorized to draw it? (5, emphasis mine).

These are precisely the questions as far as free speech advocates are concerned. Certainly, the line shouldn't be drawn by authoritarian activists or extrajudicial commentators like Fish. Thankfully, Fish will never become a Supreme Court judge. Meanwhile, the notion that speech is “symbolic action,” and that it can and often becomes “discursive violence,” as some postmodernist theorists term it, is thankfully not legally acknowledged in the U.S.

Like so many of his ilk, Fish’s understanding of speech is based on confusing the right of expression and the compulsion to believe and act upon it:

But how do we think about those occasions when allowing speech to flow freely, no matter what its effects, causes harm to others? Is that harm just collateral damage, the necessary cost of doing First Amendment business? Are the eleven dead in Pittsburgh martyrs to the First Amendment? Is the First Amendment so basic a value that it must be upheld even when it appears to facilitate evil? (5-6)

It should be noted that the eleven Jewish victims at the Tree of Life Synagogue in the Squirrel Hill neighborhood of Pittsburgh—quite close to where I happened to have lived for many years—were the victims of a shooting rampage, not of the First Amendment. Shooting others is not protected under the First Amendment. It was not speech that killed them, but bullets fired by a madman. How is the First Amendment to blame for someone going on a killing spree? In any case, Fish omits the fact that speech that provokes incipient violence is already unprotected by the First Amendment. Furthermore, no one has a metric for determining whether giving voice to sentiments causes more “harm” than potential action taken when sentiment is pent-up and denied expression.

In Chapter 2, “Why Hate Speech Cannot Be Defined,” a labyrinthine disquisition in which Fish draws on several leftist interpretations of hate speech only to find no definition, The author nevertheless argues for proscribing it, whatever it is, on the grounds that it harms others. As it turns out, the (non-existent) right not to be offended trumps freedom of speech, as Fish sees it.

Chapter 4, “Why the Religion Clause of the First Amendment Doesn’t Belong in the Constitution” amounts to an argument against protecting religious expression in the public sphere because it cannot be deemed “special”—that is, it aims at superseding but should not be allowed to supersede other forms of expression. Here Fish suggests that religious expression, such as bakers refusing to bake cakes for gay, lesbian, or transgender couples on religious grounds, violates the democratic principles of which free speech is apiece. As such, the religious clause principles in the First Amendment do not fit with the more general principles informing the Constitution. Again, the argument involves erecting a straw man in place of the actual opposing position. No reasonable advocate for freedom of religious expression has declared that such expression should have priority or superiority over other expression. Those who engage in religious expression may deem it superior to other expression, but the same can be said of any other speaker. Who doesn’t believe that what they say or believe is right and thus better than other beliefs or expression of others? Fish would have religious belief confined to the privacy of the home and church, a clear curtailment of the individual rights of religious believers.

Chapter 3, “Why Freedom of Speech Is Not an Academic Value,” will be especially interesting to readers of Academic Questions. Here, Fish draws a line between free and open inquiry, and free speech. The latter, he argues, has no relevance in the academy. One wonders what value free and open inquiry could possibly have in the absence of freedom to express what the inquiry yields.

Fish argues that the academy is an institution for knowledge production and that only some, well-vetted, expert opinions are viable and worthy of attention. The issue, of course, is the domination of a particular perspective, so that some views are deemed unworthy of consideration from the outset. Democracy and its attendant freedom of speech have nothing to do with the academic enterprise, according to Fish. Rather, academic inquiry “would be better described as Darwinian, the survival if not of the fittest then of those who still have a place at the table after all the votes have been taken.” (66) But true Darwinian inquiry would nevertheless admit actual competitors, an initially democratic “inclusion” of diverse standpoints. Fish’s formulation would (and in practice does) allow for the elimination of competitors in advance, all but guaranteeing the kind of ideological homogeneity that rules the roost in academia today, allowing rather specious claims, such as the belief in gender pluralism, to go uncontested.

Cherry-picking the American Association of University Professors in their 1915 Declaration of Principles on Academic Freedom and Academic Tenure,2 (67) Fish conveniently omits the fundamental statement of that declaration regarding free speech, which I have previously cited in this periodical: “Genuine boldness and thoroughness of inquiry, and freedom of speech, are scarcely reconcilable with the prescribed inculcation of a particular opinion upon a controverted question.”3 Contradicting the document he supposedly agrees with, Fish insists:

So I say again that freedom of speech is not an academic value, whether or not the college or university is public or private. Accuracy of speech is an academic value. (You should check your facts and identify your sources.) Completeness of speech is an academic value. (You should not leave out evidence that counts against your case).” (67-68, emphasis mine)

The AAUP clearly included free speech as an academic value and Fish violates the vaunted principle of “completeness” by omitting it.

Fish treats the issue of invited speakers and suggests that they constitute “entertainment” and thus that their invitation and speaking engagements are a matter of “crowd control.” Such outside speakers are not essential to the mission of the university. Thus, when a speaker is likely to evoke unruly student and extramural activists to riot and cause damage to the campus, they should simply be uninvited or disinvited. (69) Here, Fish essentially acquiesces to the collective hecklers’ veto. The problem is that student and outside activists will not stop there and, failing to recognize the distinction that he and others maintain, will proceed to shut down curricular events, including entire courses. Such was the case at Reed College, where “Reedies against Racism (RAR)” managed to shut down all the sections of Humanities 101 because they found the course “‘Eurocentric,” “Caucasoid,” and therefore “oppressive.” (80) There goes the entire western canon, and Fish has no real answers for its demise, except to impugn students, without mentioning that his vaunted faculty “experts” have indoctrinated them thusly.

Fish criticizes the administrative response to public speech in the cases of Amy Wax, Steven Salaita, and James Tracy, chalking up the poor decisions to the failure of deans and college presidents to recognize the difference between the academic and public contexts of speech. But Fish’s prior exclusion of freedom of speech, and his lack of any defense of academic freedom, make his criticisms ring hollow. To his credit, he suggests that teaching should not become a soapbox for political proselytizing. However, his own formulation of the problem allows for the construction and maintenance of the echo chambers that make such cases possible.

Finally, this review took weeks to write because Fish’s book is so exasperating that reading it had to come in stops and starts. I expect that Fish’s The First will be an agonizing read for all but confirmed albeit subtle leftist authoritarians.

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