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.”
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