A Note To A Friend On The Subject Of Forgiveness

 I’ve done my share of forgiving and even more so have been forgiven but I haven’t thought much about forgiveness as such. To the extent that I have, I’ve thought that for the significant wrongs done to us, there is never really any “closure,” even after we give forgiveness. They linger in our subconscious and aren’t really that difficult to trigger. 

In principle, I’ve thought, forgiveness roughly follows the model of a contract. For a contract, A makes an offer and B accepts it. Performance is vouched by legally enforceable rights; breaches are grounds for suit. In forgiveness, A apologizes and B accepts it. Performance is vouched by the mutual assumption of relationship normalcy. Breaches are grounds for righteous recrimination. 

I have my doubts about public forgivenesses or people making public pronouncements seemingly aimed at expiation. “My doubts,” nah, no doubts: it’s generally unredeemed horseshit. Public apologies, public acts of contrition are too tainted in their nature with calculation and insincerity to be genuine and anything other than symbolic gestures that are usually tendentiously fatuous, and then if not that, nothing more than symbolic, which I grudgingly suppose can have some ritual efficacy. 

Forgiveness, even if never absolutely redemptive, is meaningful in close relationships whether in friendship or in love. I’d think this is where forgiveness operates best. We, imperfect, sinners, with darkness and evil in us, half angel, half beast, are prone always to hurt whom we love and like very much. So, in this realm, apology and forgiveness can be profoundly efficacious. 

Clear self knowledge here is facilitative: we may be able to discern what in us holds us back from apologizing when we should and why we don’t forgive when we should. It’s at these points that the Rabbi’s psychological analysis and insights are illuminating. But if good faith in the apologizing and in the forgiving is assumed, then much of what he says gets swept away. 

An old friend once wisely said, “The emotions have a mind of their own.” I’ve found this to be true my whole life. You wake up one morning and what has been eating away at you for days or weeks is gone, your hurt over a break up is gone, and, to the point here, you’re ready to apologize or to forgive. 

I get your point to a point about no such thing as forgiveness. It’s my point too about there being, not ever, no perfect wiping the slate clean. That’s—a 100% cleansed slate—a piety. But within that, and here I depart a little from you, and as noted, apology and forgiveness can be real, can be a real thing. The imperfect need not be an enemy of the good for it to be so.

Of course I agree that we oughtn’t bow to some notion of forgiveness as an imperative. Simply, some things are unforgivable. I think of that church shooting—I think in Atlanta, maybe some other town, I think it was in a black church—killing many attendees and in the aftermath the members of the church sought to forgive the killer. That seeking was a reflex of their religious belief and I thought it, and I think all like forgivenesses of such egregious wrongs, to be inhuman, and impossible, at least for me, to take seriously. Another example was a white woman, I forget in which state, Texas?, walking into the wrong apartment and shooting its black male inhabitant. At the trial—the result of which I can’t recall, I think it was guilty—the victim’s brother forgave her. If I recall rightly, they embraced. But that was another one that confounded me. 

Refusing to forgive in the right circumstances can be positive, emotionally healthy, righteous and life affirming.

Some Friendly Back And Forth With A Friend About What Poetry Does And How We Approach It

Me:

To say a poem says something about something doesn’t make it a syllogism to be held to logical rigour. It’s poetry not philosophy. Poetry turns on paradox, figurative expression, dense prosody, imagery metaphors, symbols, charged language. And it doesn’t follow from a poem not being a syllogism or an explicit line of reasoning that it’s not saying something about something. The notion that the core of a poem is the character of the speaker is to hive off one aspect of poems and illogically make into the whole. This is the fallacy of composition—“The fallacy of composition arises when one infers that something is true of the whole from the fact that it is true of some part of the whole.” 

R:

Since Plato and Aristotle almost all theorists agree with you.  I am an aesthete deep down, but accept that people want to learn things from fictional works.  Learning truths is what high end western civilization is about.  That was not what our very distant forbears were concerned with.  They knew all they needed, and mostly made it up unless it connected to practice.  All they wanted was to believe the same thing, which they did for the sake of tribal mutuality.  We want to know more and more and it is an endless quest which gives lots of meaning to many people's lives. Not mine.  But of course being infected with the need to be right means that I cannot change my belief that what one gets from fictional literature is illusory intimacy, or virtual intimacy, but just as chimps are happier with rag dolls than nothing, we are happier with substitutes with which we can actually be closer than real folk since one never knows what lurks in the hearts of men.  My poetic folk are all and only made  from the words of the poem, I make them from the poet's words and I love it when I feel I know the person projected by the artist top to toe and so can respond to many more folk and with greater assurance than in real life.  I think I join the billions who are absorbed in  stories and may even celebrate the weddings of characters and who don't think they are learning serious things thereby, 

Me:

It’s not so much that with respect to whether poems say something about something that we want to learn things be it from poems or from fiction. I don’t think that is why we go to them. For the latter, by and large, we want to get engrossed in stories. Not to learn things as such. We do learn things from fiction as it happens but they’re not didactic or expository, unless they’re explicitly meant to be. More, rather than getting expository teaching, we learn, as the phenomenologists put it, what whatever it may be is like. And there can be a certain kind of truth in that, which we judge to be so if it rings true to our own experience or if we feel particularly compelled. 

I may be wrong but I think you though are talking about explanatory truth. 

I’d distinguish though between (at least) two types of learning from fiction, broadly speaking: one is, as noted, learning what something is like; the other, internal to the work and arising in literary criticism, is what theme the story gives rise to, what world is being projected, what determining forces, if any, press forward in that world and how they relate to the way the characters are. 

Typically, protagonists will in the course of the story embody that relation in what happens to them and how it affects them and how they manage to deal with it. Theme, then, is the summary of how all that can be conceptualized at a certain level of abstraction. 

So, thinking through theme isn’t a typical reading experience. Lay readers will typically get what so and such is like, get a sense of the whole story, how they feel about the characters and how it all finally affects them. 

Reviewers go further, typically formalizing these responses by coherently articulating them. 

And literary critics go further than reviewers by, in at least one mode of criticism, among other things, centrally trying to come to grips with theme. 

I’d think with poetry it’s broadly an analogous story with the differences the result of the differences in the genres. While we go to fiction essentially for the stories, we go to poetry essentially for the revelation or illumination of specific experiences rendered in highly changed language deployed to give rise to the various means integral to poetry. In that, revelation is indistinguishable from the compressed art that creates it. 

As argued, the psychology of the speakers, coming to know them, sensing them, feeling them, or for or against them, is but one experience of poems, but not the main or only one, which I take it you argue it is and against which I contend. 

Typically, readers and listeners experience the poem such that they simultaneously get a sense of what something is like via its poetic revelation at one with its poetic art and too maybe get a feel for the person the voice of the poem evokes.

I guess reviewers deepen and formalize those kinds of responses for the same reason that prompts fiction reviewers—coherent articulation . 

As with fiction, literary critics will, in one mode of criticism, among other things, analyze specifically and somewhat minutely how the poetic means rise and cohere into what the poem is “saying” about something, how, putting it differently, form and content are one. How what’s being said about something is the theme of the poem, just as you, your two friends, Randall Jarrell and I came to see Frost’s poem, its speaker, saying something about how at least some people take in or ignore the world, and how the speaker in The Poems Of Our Climate  rejects pristine poems (read all art) stripped down to the image as such and affirms hot imperfection in art, “lies in flawed words and stubborn sounds.” 

By the by, just saying, it strikes me that what this speaker is saying about something in this poem is a more powerful effect, comes across more, than what kind of person Stevens evokes. 

R:

I agree completely with what you say. Here is why.  After a showing of one of her films that I attended, Margaretta van Trotta was asked by a member of the audience what a certain scene meant.  The questioner was pretty clearly assuming that there was allegorical significance to the scene in which two women sit at a table across from each other.  One is a jailed member of the Baader Meinhof group the other her sister.  Van Trotta said, "Life's like that sometimes."  Holy shit, I thought, that's the "message" of every work, or even part of a work, that is to be taken seriously.  The question always is how to answer the question, "like what?"  I just read Tolstoy's wonderful/awful story Polykushka about Russian peasants faced with having to choose someone from their village to be drafted into the Russian Army.  What struck me was that people in the story had to make fateful choices.  That is what struck me and yes I would call that a theme, and I'm even willing to say the movie is about that, but it says nothing about what it portrays, other than that it can be tough making hard choices, which I already knew.   I have had to make very few that felt that way to me (lucky me) and I was utterly oblivious to what might have been dire consequences when I made some of my choices but turned out fine (lucky me).  What did I learn from the story?  People respond in different ways, which I knew, so in that sense the story teaches nothing new, but shows "how things are sometimes."  

There is an obvious "accident" in the story that triggers the worst consequence, but who cares, good plots, those that don't cheat more or less, are tough to come by.  

My Response To John McWhorter’s Piece About The Firing Of Georgetown Law Prof Sellers

John McWhorter: 

https://johnmcwhorter.substack.com/p/so-there-was-a-law-professor-at-georgetown

Me:

Dear Professor McWhorter:

A few points on “So there was a law professor at Georgetown who was a racist.”

In what sense is Sellers’ private conversation with Batson “grimy”? She’s speaking colloquially and informally to a friend. And as I read her, it’s an agony or an anxiety for her that semester after semester her black students are overrepresented at the bottom of the class. And if she’s used an “unideal” word, “Blacks,” so what? It doesn’t hardly deserve a mention. I see no grime. I rather see a bit of a plain spoken cri de couer.

I can see how assigning racism as the cause of that overrepresentation “gets closer to sense.” But that is only to say that that proposition isn’t as off as is a lie—there is no such overrepresentation. I don’t see how citing racism gets any closer to sense than the idea that for her to have spoken so is rude. 

Considering that Sellers was speaking privately with an expectation of privacy, to whom could she have conceivably been rude? This isn’t a reason you address. You instead focus on the rightness of being able to speak up about reality. But isn’t the privacy point closer to actuality and, so, more directly salient? 

Similarly without sense, how can racism as a cause apply to underperforming students admitted to one of the most prestigious and demanding law schools in America? The very act of admission vouches the law school’s expectation that the admittees will succeed. The law school in principle will admit no one it expects to fail. Moreover, while some may claim and argue for it, the plain fact is that it’s preposterous to see the law school as a racist institution. So from where, how ever, can racism be offered as a reason why, generally, these black students do worse than other students? 

Your point about noting black student overrepresentation at class bottoms that “Leaving it there is what makes statements like Sellers’ and Wax’s so repulsive to many, and this is understandable...” isn’t fully clear to me. Are you saying that it’s understandable that many will find what Sellers said repulsive because she didn’t say more, offer a solution? But If so, the contexts were qualitatively different for Wax and Sellers. Wax was in the midst of a public discussion with Glenn Loury. She had no expectation of privacy. (That said, I think it not at all understandable that many people would find what Wax said repulsive by reason of her not saying more. She was stating what she saw as a fact. What more was there for her necessarily to say? What solution could she conceivably have offered? What disavowals was it her duty to make? That she was expected obligatorily to say more is unreasonable.) Sellers, as noted, thought she was in the midst of a private conversation with a sympathetic colleague. So the notion that she needed to say more to save what she said from being seen by many as repulsive doubly makes no sense.

Finally, this is also unclear to me: “Note that what I am saying fully acknowledges the existence of systemic racism, and also points the way towards a better future for black people.” Either you’re saying, that you acknowledge the existence of systemic racism or you’re in effect saying by implication, “Even if I don’t acknowledge the existence of systemic racism, what I’m proposing can be read as acknowledging it exists; in other words, my proposal accommodates that characterization of America regardless of whether that’s so.” If it’s the first, then it seems to me at odds with your conversations with Glenn Loury on Bloggingheads. I stand to be corrected but it’s my firm impression you both disavow that way of seeing America.

Sincerely,

Itzik Basman

A Response To A Friend About An Older Essay By Stanley Fish Denying There’s Such A Thing As Free Speech

 Fish:

https://web.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf

Me: 

Fish’s argument is that there’s no such thing as free speech within the meaning of the 1st Amendment, regardless of, as Fish has it, the pious, abstractions espoused by those who claim there is. (Which is most people who think about it.) 

S.1 of the Canadian Charter exemplifies, Fish says, what he’s arguing. For it provides that legal limits imposed on free speech can be demonstrably justified in a free and democratic society. Fish allows that more latitude may be given to speech in the US than in Canada: we criminalize hate speech; the US protects it. But that difference is beside his point, which is that every line drawn between protected and unprotected speech is political, the result of a power struggle between on one hand speakers and the interests they speak for and on the other the political power behind the constraint. 

For Fish, the the profession of neutral principles in deciding free speech issues is a dodge. There are none. That is so because no one, no group and no organization has an “open mind.” We, they, are all filled with our own values, beliefs, principles, convictions and so on, even though they can change. And those with superior power assert them in deciding what expression is permitted and what is not. 

The deep criterion for what is impermissible is that expression which is inimical to the fundamental purpose of the spoken-to or spoken-against entity, inimical to its very reason for being. This criterion, Fish notes, is the very point of Milton’s censoriousness, Areopagitica notwithstanding: “Popery extirpates all religious and civil supremacy, so should itself extirpate.” 

Fish’s argument is ontological. In the nature of things, we all start with ideologically filled minds. The clashing ideologies of all involved mean that nothing is neutral in the way of dealing with 1st Amendment free speech issues. To say free speech is something is to mistake it for that, since it’s nothing. Those who express themselves do so to advance a position. Those who constrain them do so to obstruct that position and to assert (and reinforce) their own. It must be so by how we are constituted. Speech, contrary to what free speech proponents claim, is not distinct from action, is not inconsequential, is not without agenda and does not exist in some pure realm detached from conduct. 

Rather, these notions—speech against action, inconsequentiality, without ultimate concrete purpose, speech existing in a vacuum—are pious abstractions. Speech always is a form of action and always is consequential. The imagined line between speech and action is but a pretext for those with power to cover the politics of their line drawing. And, so, since every adjudicated issue is function of politics, power against power, there is no free speech zone designed to keep speech detached from political considerations, since politics itself shapes the zone meant to detach speech from politics:

Page 114:

“It is a counsel that follows from the thesis that there is no such thing as free speech, which is not, after all, a thesis as startling or corrosive as may first have seemed. It merely says there is no class of utterances separable from the world of conduct and that therefore the identification of some utterances as members of that non existent class will always be evidence that a political line has been drawn rather than a line that denies politics entry into the forum of public discourse. It is the job of the First Amendment to mark out an area in which competing views can be considered without state interference; but if the very marking out of the area is itself an interference (as it always will be), First Amendment jurisprudence is inevitably self-defeating and subversive of its own aspirations.” 

One way of understanding Fish’s argument is to see the difference between the conventional idea that there is under the 1st Amendment an infinite amount of free speech subject only to a few exceptions—fighting words, incitement to violence, words spoken in furtherance of crime, defamation, others—and Fish’s contention that there is no such body of free speech and that in the nature of things what always constrains speech is what in fact generates its meaning, makes it intelligible: 

Page 115:

“My point...is that constraint of an ideological kind is generative of speech and that therefore the very intelligibility of speech (as assertion rather than noise) is radically dependent on what free speech ideologues would push away. Absent some already-in-place and (for the time being) unquestioned ideological vision, the act of speaking would make no sense, because it would not be resonating against any background understanding of the possible courses of physical or verbal actions and their possible consequences. Nor is the background accessible to the speaker it constrains; rather it constitutes the field in which consciousness occurs, and therefore the productions of consciousness, and specifically speech, will always be political (that is, angled) in ways the speaker cannot know.”

A problem with this argument from ontology is that in the end it becomes reductive as it moves from how (Fish says) we are as individuals, groups and organizations constituted by our convictions, to the conclusion that every free speech decision is perforce the result of the clash of the ideologies of opposed groups with vying power. Nothing neutral or objectively principled informs decisions . As he says,

Page 114:

“so long as so-called free speech principles have been fashioned by your enemy (so long as it’s his hoops you have to jump through), contest their relevance to the issue at hand; but if you manage to refashion them in line with your purposes, urge them with a vengeance.” 

A few points as to this quote.

For all his confident talk about “the real” of free speech, Fish is all over the place in his examples. He talks about college issues, about what student newspapers might publish, about statutes that seek to punish all colleges for penalizing students’ free speech, about his back and forth with Benno Schmidt. 

What’s missing in all this is Fish addressing what concretely goes on at SCOTUS, its jurisprudence, the way arguments are made before it, the intellectual framework within which arguments are made. And it’s remarkable that this is missing because in relation to his argument, SCOTUS is essentially where all the major relevant action is. His examples distract from that. SCOTUS is finally where the 1st Amendment gets tested, played out and decided. Yet Fish can do no better than refer quickly to a case or two and then, rather than analyzing even those few in relation to his thesis, he merely pulls out a few bits of dicta almost completely without factual or legal context. And yet he’s absurdly content to generalize promiscuously about the “real story” of the 1st Amendment and its pretextual jurisprudence. 

His quote just above about the pitched political battle he envisions happening is ludicrous in relation to what goes on before a court on free speech issues. No one is “fashioning free speech principles.” Lawyers study and work with the case law at hand and try to mould the analyses to best conform to their positions. They do this in an ethical framework that prohibits them from misrepresenting what cases say, what the law is or what the facts are. They all operate in the same universe of discourse, to put it one way. No one is dancing to another’s tune, or jumping through their hoops. There are stronger and weaker positions that are generated by the factual matrix of each case. Fish, in this quote, for all the real low down he’s trying to expose, is miles removed from what really goes on. So, he’s the one who’s abstract and in the end reduced to mouthing pieties parading as tough talk about the way it really is with free speech. 

The final point here is an utter refutation of his argument on at least two counts. It’s the case of Texas v Johnson, 1989. By a 5-4 majority, SCOTUS held that the US-flag-burning Johnson, criminally convicted  of that under a Texas statute proscribing it as a criminal act, had his conviction reversed due to the majority holding that flag burning is protected speech under the 1st Amendment. This case is a black swan disproving all swans are white as Fish would have it that the deep criterion for the disallowance of speech is what is inimical to an organization’s deepest purpose. Here, the flag symbolizes everything purposeful for which America stands.

In utter irony, Fish says on page 110:

“...decisions about what is and what is not protected in the realm of expression will rest not on principle and firm doctrine but on the ability of some persons to interpret—recharacterize or rewrite—principle and doctrine in ways that lead to the protection of speech they want heard and the regulation of speech they want heard and the regulation of speech they want silenced. (That is how George Bush can argue for flag-burning statues and against campus hate speech codes.) When the First Amendment is invoked, the result is not a victory for free speech in the face of a challenge from politics but a political victory by the party that has managed to wrap its agenda in the mantle of free speech.” 

Blackening the swan even darker is that Justice Scalia sided with the majority, in fact gave the majority its majority:

“Scalia sided with the majority in that case, which found the First Amendment protects political expression like setting the stars and stripes on fire. That doesn't mean the 78-year-old justice likes flag desecration, but it's the justices' job to interpret the Constitution, not to pass moral judgment, Scalia has said repeatedly.

"I hate the result [in Texas v. Johnson]," Scalia..said at a 2014 question-and-answer session sponsored by Brooklyn Law School.

"I would send that guy to jail so fast if I were king," he added, then referring to Gregory Lee Johnson as a "bearded weirdo." https://tinyurl.com/9tck4tj4

Scalia in the majority completely knocks the props out of Fish’s contention that 1st Amendment doctrine is fatuous and that only the underlying politics is at work, and not just the politics but that politics that has the most power. 

Reinforcing the assassination of Fish’s contention is the fact that under 1st Amendment jurisprudence, anyone is generally free to call for the overthrow of the US government, call for revolution, the tear down of capitalism and even advocate violence as a means. 

In another example, what can Fish say about Snyder v Phelps, the Westboro Baptist case? That obnoxious group picketed a funeral of an American soldier, Snyder, killed in Iraq. 

From Wikipedia:

“On March 3, 2006, U.S. Marine Lance Corporal Matthew A. Snyder was killed in a non-combat-related vehicle accident in Iraq.[3][4] On March 10, Westboro Baptist Church (WBC) picketed Snyder's funeral in Westminster, Maryland, as it had done at thousands of other funerals throughout the U.S. in protest of what they considered an increasing tolerance of homosexuality in the United States. Picketers displayed placards such as “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fag,” “You’re Going to Hell,” and “God Hates You.”, "Fag troops", "Semper fi fags" and "Thank God for dead soldiers".[5] Members of the Patriot Guard Riders, a group of motorcyclists who separate WBC protesters from those who attend military funerals, were present in support of the Snyder family.[6] WBC published statements on their website that denounced Albert Snyder and his ex-wife for raising their son Catholic, stating they "taught Matthew to defy his creator", "raised him for the devil", and "taught him that God was a liar."

In a nutshell, the court held that this outrageous infliction of mental suffering and defamation by Westboro, as vile and hurtful as they were, could not found a tort claim by Snyder’s father. The picketing, their statements and their signage couldn’t form the basis of any such claim. And it was an 8-1 decision, meaning no ideologically conflicting views among the majority Justices. The meaning of the 1st Amendment stood tall, the principle that the state cannot make laws abridging freedom of speech was vindicated in the most offensive circumstances. 

I say the case is another strong example defying Fish’s argument. What political factions are at play here? What political power is having its way here? What politics is hiding under the fig league of the majority’s legal reasoning? How in light of this case, can it be maintained that the idea of free speech is meaningless, is nothing? https://en.wikipedia.org/wiki/Snyder_v._Phelps

So, it’s clear that Fish’s tunnel visioned ontological argument leads him reductively to oversimplify and overgeneralize. And that shows up in this as well: no one sensible thinks that judges’ predilections play no part in their decision making. (This in fact is a big part of what animates textualism and originalism. For when judges aren’t faithful to the text, they then become legislators.) But only a cynic, fool or ideologue will think that predilection tells the whole story. Judges take an oath to interpret and apply the law faithfully. In hard cases, they strive to do this and often the effort is in tension with predilection. Judges through their training and legal careers, whether in practice or in the academy, are highly attuned to their ethical commitments. So while, certainly, predilection makes itself felt in many cases, spills over in some cases, who sensible would say, like Fish, it’s all there is? And in saying this in his all encompassing way, Fish ironically descends into abstraction and an insupportable hard headedness, which actually is piety. 

Fish ignores stare decisis, the doctrine of precedent, under which lower courts are bound by the decisions of higher courts;  and in Canada and the US, the respective Supreme Courts, while they can’t bind themselves, will only depart from previous authority, only depart from settled law, when certain criteria are met, essentially that it’s so compelling to do so that it outweighs the law’s interest in stability and fairness from predictability and notice giving. 

Sometimes precedents go back decades and even centuries. Lower courts in both countries decide the overwhelmingly vast majority of all cases, with only a few each year reaching the Supreme Courts. Some of these in America will be 1st Amendment cases and courts will be bound by Supreme Court precedent, some many decades old and older. And, so, it’s against a fairly stable, not very often dramatically changing, background of what the law is that free speech issues get decided. 

What, therefore, do these facts do to Fish’s claim that for these cases it’s politics all the way down, ideological forces pressing their power against each other, but make it abstract and a reverse piety, which is to say piety parading as the truth telling real deal. 

Guess what: there’s more along these lines. Consider this: in America elected politics is always in flux, a new executive every four or eight years; new legislators every two years with possible changing party control of one or both parts of Congress, often marked by shifting coalitions. But against this electoral flux, SCOTUS is relatively stable. Judges are appointed for life and most stick around for as long they can. And it’s SCOTUS judges who have the last word on freedom of speech issues under the 1st Amendment. So just where and who exactly are the power blocs so militantly contending against each other in case after case as Fish has it? 

In fact, his view of the actuality of 1st Amendment litigation is itself pretty vacuous. It arises in consequence of state action. State actors are diverse and the variety of fact patterns and interests and ways in which the issues come up demand, for Fish to make his argument, that he pick his way through that variety and demonstrate in a fair sample of these cases how his thesis holds up. He utterly ignores all this and it mitigates the force of his argument. 

In line with his refusal to deal concretely with SCOTUS decisions, Fish asserts as a tellingly absolute proposition that the speech action distinction is empty and only serves as a verbal formula to be manipulated by the prevailing power to achieve its end in either allowing, regulating or silencing speech. But nowhere does he illustrate his proposition by confronting any legal reasoning about the issue. Yet, for 1st Amendment purposes, the distinction, even where the dividing line is at times blurry and the court struggles with it, is meaningful. 

As noted, a big exception to free speech is incitement to violence. But to constitute incitement, the court in Brandenburg v Ohio, 1969—and, so, precedent a half century old—distinguished between the advocacy of violence and incitement as a kind of immediate urging of violence. A KKK leader had advocated violence, proscribed under an Ohio statute. SCOTUS held the statute unconstitutional as a law that abridges free speech. Again, as in the Westboro case, the facts are unimaginably vile:

“Clarence Brandenburg, a Ku Klux Klan (KKK) leader in rural Ohio, contacted a reporter at a Cincinnatitelevision station and invited him to cover a KKK rally that would take place in Hamilton County in the summer of 1964.[9] Portions of the rally were filmed, showing several men in robes and hoods, some carrying firearms, first burning a cross and then making speeches. One of the speeches made reference to the possibility of "revengeance" against "Niggers", "Jews", and those who supported them and also claimed that "our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race", and announced plans for a march on Congress to take place on the Fourth of July.[10] Another speech advocated for the forced expulsion of African Americans to Africa and Jewish Americans to Israel.[11]”        https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

What political constituency or interest was served by this decision as opposed to vindicating the constitutional right of free speech? Was it that the KKK was more powerful ideologically than the interests arrayed against it in this litigation? This case, among others, sets Fish’s argument on its ear, makes a hash of it. Again, Fish in making his claims doesn’t attend to the particulars of actual cases where it counts, where the action is, namely SCOTUS.

So, in sum, Fish throughout his essay elides how SCOTUS actually functions, its actual jurisprudence, the intellectual framework, the universe of discourse, it works within, in dealing with free speech issues, the materials it deals with, what must constrain it and the lawyers who argue before it. And so he is reduced to tunnel visioned assertions that can’t bear the scrutiny arising from attending concretely and specifically to the actuality of these matters. And as I keep noting, for all his attack on the 1st Amendment, its jurisprudence, and its defenders as abstract and given to pieties, in this essay abstraction and piety are Stanley Fish’s middle names. 

To end this, I’ll make a textual point that I well could have made at the outset. I’ve characterized Fish’s argument as ontological. To put it another way and with another $64.00 word, he argues from his phenomenological analysis of the nature of speech, how speech is never nothing, how, as he has it, constraints generate speech and make it intelligible. With all his elaborate argument about this, he quite misses the point. The 1st Amendment provides:

“Congress shall make no law...abridging the freedom of speech...”

This prohibition focuses not on the content of speech but on the right to speak regardless of content, subject to the exceptions created by jurisprudence. So, it is quite beside the point to concern ones-self with what speech is, whether it’s “free,” its intelligibility and meaning in relation to constraint. But a not insignificant portion of Fish’s argument turns on his assertions that it is only with constraint that meaning and intelligibility arise and that no one speaks “freely,” which is to say, without prior convictions and without wanting to pursue an agenda, be it only the point being made or something else. In this, he focuses on the wrong thing. The right thing is the right to speak freely, that is, free from abridgement by state action. The content of speech, while of vital importance in determining the justification for any particular  abridgement, is subsidiary to the right to speak, is a vital consideration in determining justification for abridging that right. Therefore, some of what concerns Fish in this essay, essentially whether speech itself is free, is misdirected in relation to understanding the meaning of “abridging the freedom of speech.” 

Three Of Robert Nozick’s Arguments Against John Rawls’ A Theory Of Justice

 Three arguments of Nozick against Rawls:

1. The experience machine thought experiment is where you can hook up to a machine for life that will immerse you completely in whatever you want as most pleasing or fulfilling. Most people would rather live their real lives, no matter how contingent. For there is, it seems, axiomatic transcendent importance and value for us in experiencing our actual lives. This provides an argument against utilitarianism—maximize pleasure and minimize pain—and, relevant here, an argument against the omnivorous, redistributionist, all providing state, which can be analogized to the experience machine in taking from us the actuality of our lives. 

2. The Wilt Chamberlain thought experiment is where we construct a society in which everyone starts from an equal financial position. There is no inequality. But along comes supremely talented  Wilt Chamberlain who will play basketball for people who will pay him a dollar to watch. Eventually, because he’s so good and fills a demand in so many people to see his excellence, he becomes wealthy. Others may be more deserving in the work they do, but who can say he’s not entitled to what he’s earned. So a big point here is that even starting from perfect financial equality, talent and catering to paying demand will inevitably create differences over time and inequality will always be a condition of our social life. And to take what Wilt Chamberlain has earned and redistribute it to maintain equality or minimize inequality is to stifle human freedom and individual flourishing. It would be akin to enslavement.

3. The ugly man thought experiment is most directly put up against Rawls. Rawls argues that all human difference is morally arbitrary and that we don’t deserve the successes we have. We may be born into advantageous circumstances or with special abilities or talents or good looks and so on. So if we were to ask, not knowing how we’d fare in life, from “a veil of ignorance,” what kind of society we’d want, we’d say let the least among us, which could easily be any of us, have enough to allow for a secure, safe, comfortable life and then after that, those blessed with what allows them to earn more have more than those most in need and who by redistribution get their needs met. Nozick posits this though: imagine a beautiful, desirable woman whose hand is sought by two men. Both men have good personalities, are equally wealthy and healthy, and are equally charming. But one is handsome and the other is ugly. The woman chooses the physically attractive man. But then on Rawls’ reasoning, can’t the ugly man demand plastic surgery to equalize their looks? Or can’t he demand that the handsome man be made more ugly? Isn’t a happy marriage to someone you truly desire a human need? The handsome man has been lucky in his looks and by that is getting what he needs to the complete exclusion of the ugly man. So a big point here is how far will the state go to balance need and morally arbitrary entitlement? Not all significant need is satisfied financially and morally arbitrary qualities favour the fulfillment of these needs at the expense of those impoverished by lacking those qualities. So what principle limits Rawlsian redistribution? 

My Reply To A Teacher About Racism In Canada And The Idea Of Anti-Racism

There are endless instances of unfair, insensitive and racist  treatment in Canada. No longer de jure though, which is vitally important. And visible minorities are typically on the short end of that stick. That’s life. We must counter it as best we can. A century ago in North America and before then, invisible minorities faced de jure and de facto prejudice, Jews, the Irish, Italians, Slavs, Poles, others. But against all the instances you cite, you cannot think, setting aside the situation of Canada’s indigenous, that in North America every institutional effort is not being made to be supportive, sympathetic, fair, promoting of, encouraging of, lending a hand to, proactive for, black and brown North Americans. 

(In my view, that effort in its passion is subject to a big conceptual flaw, among others, which is conflating equality of opportunity, including the good of lending a state hand, with equality of outcome.)

I remember attending law school at Osgoode at York in the early seventies and being blown away at how multi cultural York was then, even though the law school was predominantly white. Then I remember going to my daughter’s graduation from law school and being impressed with how diverse her graduating class was. And there’s no way, that it (and other Canadian law schools) isn’t even more diverse now. I remember my more recent visits to UBC while out west and being happily amazed by the big number of Asian students on campus. 

I like you can’t quantify racism in Canada. But what my own experience tells me, what the possibilities for success for visible minorities tell me, what the mainstream cultural honouring of inclusiveness tells me, what the attitudes of my friends, acquaintances, former colleagues, former clients, people I worked with, appeared before and generally interacted with across a wide variety of experiences tell me, what the diverse faces I constantly see around me and interact with in all walks of life tell me, what the institutional efforts I see everywhere in Canada at all levels of government tell me, what I see as the changing face of my own neighbourhood tells me, what they all tell me is that the ascription “systemic” to such racism that does exist in my country is a massive distortion. 

I disagree vehemently with your assessment that a lot of good has come out of “anti-racism,” insofar as that phrase is understood as a term of art for a specific set of understandings rooted in CRT—Critical Race Theory, the notion of White Fragility, intersectionality, and other related ideas. I take it this is what you mean by the “anti-racist movement.” For me, the cons in the movement decisively outweigh its pros, such as they may be. 

The issue isn’t but a few examples of a few activists going too far. That’s bizarrely seriously to understate things. One issue is a moral panic that has infected institutions, businesses and the culture generally such that the pernicious, canceling stories, incidents and microcosmic examples are legion. Do I really need to list specifics to convince you of this? If I do, then I can only think the world you perceive is at great odds with the world I perceive.  And the issue underlying this tidal wave of instances concerns the intellectual flaws at the root of CRT, White Fragility, intersectionality and their moribund relatives, one such flaw I refer to above, another I highlighted in my last post to you, (that was the fallacy of the notion of “racist gaps,” that any disproportion or underrepresentation is evidence of racism), some I incorporate below and here’s another flowing from a concrete situation: https://www.theatlantic.com/ideas/archive/2020/08/meta-arguments-about-anti-racism/615424/

(Obviously, no right thinking person objects to anti-racism insofar as it merely designates being opposed to racism.)  

Listen, I applaud the steps you’ve taken better to improve your teaching. And if that’s a result of the impact of CRT, then so be it. Mind you, I don’t notice in those steps that you’re copping like a mortal sinner to your white privilege and ineradicable deep structure racism, or getting your white students to cop to theirs, or calling for equality of outcome as the measure of equity, or teaching how Canada is a white supremacist, patriarchal, genocidal—with all due attribution to Justin Trudeau for genocidal—systemically racist country, or arguing that good writing and doing math systematically are white supremacist carry overs, or arguing against grading (or for disbanding grading) since grading is inherently racist, or arguing that the experience of marginalization evinces a wisdom that can supplant evidence and logic, or arguing that science is a hegemonic structure, or arguing against merit, or arguing against the category “gifted” for students who demonstrate intellectual superiority, or arguing that we whites are fragile and terrified at being shown to be the incipient racists we all are deep down, or arguing that one’s racism is evident in one not actively combating racism, or arguing that heteronormative white males are at the top of a hegemonic structure of oppressive power who do all they can to keep the oppressed under them ongoingly oppressed, or arguing that underrepresentation is irrefutable proof of racism, or teaching racial essentialism, or pitting whites against blacks and browns, or promoting any kind racial divisiveness, or calling for the “cancellation” of historic giants like John A. MacDonald or more generally pointing to Canada’s history as one of unvarnished evil, or teaching about the past from the viewpoint of “presentism,” and all other matters of unloveliness that are consistent with the constellation of ideas rooted in CRT and intersectionality. 

And it’s to your credit that you don’t.