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Continuing our free-form discussion, trying to make sense of Stanley Fish's “There’s No Such Thing as Free Speech, and It’s a Good Thing, Too” (1994) and other potential rationales for prohibiting hate speech. How might the same sentence or idea be used in different speech acts, some of which might be legitimately censured but others not? Also, given the legal right to express an opinion, what responsibility might we have to facilitate expression of opinions, given that if no one gives it a hearing, then there's no real right to communication at all?
Listen to part one first, or get the Citizen Edition, along with the full-length follow-up discussion by Mark and Wes.
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Mark understands Fish; Wes seems to not understand him at all — or to get off-track on the issue of outright “meaningfulness” of an utterance that he misses all the big specific points directly in the text. Fish is interested in the ways we are always carving out exceptions (areas of un-freedom and restriction) to make our practices of “free speech” possible — or at least, in our eyes, maintainable.
Universities carve out spaces based on the principles of academic authority, or potentially on their vision of what kind sof political and learning community it should be. Nations carve out areas of speech that violate their basic principles of citizenry, or human dignity, or people’s freedom from harm. Discussions about “hate speech” or “fighting words” or “libel” or “personal affront vs public discourse” — all of these attempt to negotiate a boundary between “mere speech” and “harmful acts.” Fish’s main idea is that we are always making these classifications, and that these acts are always political — carving out areas of unacceptable speech that we think undermine some more central content-laden principle. It’s always politics, and the “freedom of speech” flag is often the politics of ignoring these inescapable politics.
I’m not saying that I agree. But, as Mark said, it seems perfectly consistent with a lot of other texts you have discussed, with MIll’s own ideas of the value of freedom, and with most of our experiences lately as we watch the debates over free and un-free speech. Wes says that the residents of Skokie should be free from the invasive and aggressive action of a Nazi march on their streets. Students at various liberal-arts colleges argue that their community should be free of school-sanctioned speech that, the students feel, questions their very equality and dignity (or safety).
Again, I don’t agree with argument — which seems to fall back on the idea that all regimes of speech protection and exclusion are equally “unfree.” But to call the article sophistical and removed from specific cases just seems wrong. The article is, in essence, about nothing *but* the overriding importance of “specific cases.” That’s what Fish meaning by the “meaningfulness” of speech — including speech about free speech: we use it to get things done.
Hey Peter,
I think I’m on the verge of understanding your comment. Can you unpack this a bit more for me though:
“Universities carve out spaces based on the principles of academic authority, or potentially on their vision of what kind sof political and learning community it should be. Nations carve out areas of speech that violate their basic principles of citizenry, or human dignity, or people’s freedom from harm”
In a concrete sense, the point would be that in Universities there are standards of scholarship which necessarily exclude all other methods of communicating what individuals could deem to be academically valuable? I’m having an even harder time putting the “Nations” point into something concrete? Or is there a part in the podcast I missed where this is discussed?
Hello Cezary,
I am sorry I didn’t see this reply. For some reason, the site didn’t sent me any notifications about updates to this thread. And this means that it’s been a while since I’ve listened to the podcast — so I’ll be talking more about *my* ideas perhaps than those of the show’s hosts.
I think your description of the university as being organized around principles that are, in many context, exclusionary and non-free — this seems to be to be right on point, from a Fishian perspective. A university is, by design, not a democracy and is not a town square. It is a space whose mission requires a commitment to accuracy and investigation and the pursuit of truth (big words!), but this is in many ways opposed (institutionally as well as practically) to letting anyone who has an opinion talk or teach or be given a curriculum podium. That level of “freedom” would hollow out the other purposes of the university.
So for nations or communities, it’s a bit harder — in part because the “rules” and mission of the group are a bit less explicitly laid out. But I think that Fish would argue that even the principle of “free speech” reduces, in practice, to which types of speech we will include and include, and which types of speech are corrosive to very purposes of the institution overall.
Take what they said about Milton’s “Areopagitica.” Milton gives a loud and strong defense of free speech and exchange in England, especially in religious matters: “Let Truth and Falsehood grapple.” But he then turns to Catholicism and says, NOT SO FAST! Catholic dogma should be “extirpated” (I think Mark said “exterminated”), because it undermines the very principles of free thought, religious tolerance, and civil government.
This seems like an old error, easily avoided now, but Fish wants to argue that this is what we perforce keep doing — cutting and restricting, often in the name of preserving some larger principle or practice. Some of these restrictions are called “fighting words”; others are called “libel”; others are reclassified as “actions,” regulated in the name of civic identity or virtue (see the more recent debates in the US about flag burning).
We cannot transform all “meaningful” acts into protected speech (Fish says) without ultimately emptying out the category and, I suppose, undermining the very thing we were trying to promote or preserve.
And as Mark suggests, this emerges from the fact that the very principle of “free speech” is always under-determinative. It always involves a ton of case-by-case decisions, arbitrary exclusions, and re-definitions. It always involves a lot of political fighting, winning, and losing — especially on the edges. And the things that are included and excluded in its protection depend on the equally political decisions about what we want “free speech” to do.
I don’t agree with Fish in many things (i.e., just because every system excludes something doesn’t make all systems equally exclusionary — equally “unfree”). But I always find his anti-foundational pragmatism — his insistence on politics and practice — to be very persuasive.
My best,
Peter
I agree with some of what you said Peter, but I want to ask since you seem to know this work – as I read it, and I understand there are many more essays on his book which I may check out, it felt a little….manipulative. Maybe I was misunderstanding but it was like he would give these case law examples to prove his own point but they were more of an example of the flaw of the judge. I don’t exactly know how to say it but it seemed like backwards engineering of an argument and I felt like sophistry was a good description of that feeling i had. However, despite him doing harm to his own writing in this way I was left wanting to read more bc he does seem to have an interesting point. You know that feeling when you can tell someone is skipping a step in the logical argument but it’s well hidden – I’m left with that feeling here.
Hi Jennifer,
Sorry I didn’t know about your reply. I just haven’t been getting notifications.
I have occasionally shared your feeling of being manipulated when reading Fish, especially when he jumps from the grand principle of “free speech” or “contractual agreement” to some odd specific case — and then shows the the weird case demonstrates something deeply entrenched in the principle.
I guess that Fish’s point in doing this is to insist that there is “no such thing as principle,” or that a abstract principle really only means something in its application — and the applications always push us back to particulars and politics. The principle, by itself, is meaningless. It cannot show you how to apply itself.
I recall reading a Fish article called “The Law Wishes to Have a Formal Existence.” That is,. it wants its power and meaning to be somehow inherent its words, its expression. But even it’s simplest terms become tools for contested inclusions and exclusions. (See the 2nd Amendment.) So, for Fish, even the weirdest judicial examples work exactly like all judges are always working. There is no way around these interpretive moves, and in fact there’s nothing outside of them.
My best,
“Peter
Agreed on that point Peter! I’m reading more of Marshall McCluhan and he makes this pint about language,- that you cannot separate if from context and it reminds me a lot of that.
Hi guys! Great discussion. Disagreement breeds interesting conversations, sometimes, at least with you guys.
I think Fish’s article “There’s No Such Thing as Free Speech and it’s a Good Thing Too,” suffers from the fact that it makes 2 distinct points, only one of which is defensible.
—
Defensible:
“In ordinary contexts, talk is produced with the goal of moving the world in one direction or the other… Free expression could only be a primary value if what you are valuing is the right to make noise; but if you are engaged in some purposive activity in the course of which speech happens to be produced, sooner or later you will come to a point when you decide that some forms of speech do not further but endanger that purpose.” (Fish)
I agree. It is absurd to say that free-speech is a primary value. If it was, one would be forced to prefer, or see as more valuable, any world in which more people are talking more, without any concern as to the content, depth or effect of their speech (except to say “it must be understood,” if you require understanding for it to count as speech, but that doesn’t imply the speech is cared about or acted on). The principle of free speech is never (in my experience) meant as a literal primary value, only as a secondary one, as it CAN further some idea of societal or personal good. If this wasn’t about The Good in the first place, how could we make normative statements at all?
Since free speech is preached as it can produce “good,” the principle is only coherent insofar as you define how speech produces good, and thus, what speech in general produces good. Unless you believe ALL speech produces good, defining “free speech” thus necessitates defining “non-free speech,” or “speech that produces bad (or net bad).” This, I believe, is the valid point that Fish makes.
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Indefensible:
“Independently of a community context informed by interest (that is, purpose) expression would at once be inconceivable and unintelligible.” (Fish)
This statement IS true, trivially, or it is false, depending on what you mean by the “purpose of a word,” and I think Fish’s error is in conflating these two meanings:
1. That which a community has decided words communicate, or make intelligible.
2. The Good that a community believes words create.
Really, these are both about “the good” that words create. #1 is an analytical good, in that words make things intelligible. #2 is more abstract, and is not specific to any particular word or phrase, #2 is the good created by words’ ability to change the large-scale thinking of a person or community, to build new theories and ideas which can increase the wealth and function of a society.
Fish’s point is true (trivally) if he is using “the purpose of words” as in #1. After all, if we don’t agree on what a word makes intelligible, we cannot communicate. Fish’s point is false if he is using it as in #2, since we don’t have to agree on the large-scale good of language to use it intelligibly (though we must at least agree on the purpose of language as communicative).
I have been reading a little Fish. He appears to be arguing that, if the purposes of two groups contradict then all that remains is for them to have a fight. Since the objective of fighting is always to win, speech (i.e., your opponent’s common sense) is inevitably a weapon which, therefore, must be neutralized. Hence, he believes 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.” He is, consequently, some kind of constructivist; that is, he believes that the current state of the universe is contingent. In other words, he’s been reading too much Darwin.
I suggest, as a first step towards his redemption, that he (re-)watch “Twelve Angry Men.” 😉 Personally, I prefer a Kantian analysis in which the proper use of coercion is as a hindrance to the hindrance of freedom generally. Obviously, as long as you are hurling epithets, it is not possible to talk to you.
Hi everyone,
I’ve read a little Mill at university and have listened to the first 2 parts of this topic while on my way to and from work here in Sydney (As Sydney-siders will appreciate, the current public transport situation is less then ideal, leaving ample room for ripping through PEL episodes!)
I have to agree with Mill, and Wes and Dylan, that the preferable approach to considering free speech is to allow for the airing of pro and con arguments on divisive issues within communities, in a way that allows for freedom of expression of positive and negative views, but without overt permissiveness of outright offence and abuse of those on the receiving end that would result in actual harm. It is a tricky concept to adjudicate on though, as perceived harm can differ in its subjectivity.
One article that is currently in focus in the Australian media is the case of a Australian country town where a new-Indian-Australian family and their associated business was threatened by other local businesses via written signs of hate speech with the slogan ‘no curries here’. http://www.abc.net.au/news/2018-04-20/racist-bottle-shop-sign-sparks-backlash-in-regional-victoria/9679654
Yes, there is perceived offence, on the hands of the Indian-Australian family concerned – threats perceived as so severe as to force the transfer of their children to different schools. In action, though, offensive signage prompted a local backlash in this particular community resulting in an outpouring of support for the new Indian-Australians and their business and their right to operate freely in this particular local region. The article indicates that 600+ people turned out for the opening celebration for their new store. Interestingly, the police force, the official arm of the law, could do very little against the perpetrators of the offensive signage. Overall it seems to be far more a matter of social acceptance and conditioning at play, rather than legal argument that prevails in these local conflicts.
Would love to hear some thoughts from the PEL global community.
Angela