Distributed Digital Property Board

[goin fishn]

Stanley Fish on free speech


http://www.lib.latrobe.edu.au/AHR/archive/Issue-February-1998/fish.html


Q : In your work you have stated that free speech must be understood against a background of the originary exclusion which gives it meaning. What are the conditions giving rise to this originary exclusion?

A : Before I got into the First Amendment or free speech business I was for many years and still am a teacher of English Renaissance poetry and prose, especially that of John Milton. Milton's contribution to the history of the discussion of free speech and censorship is of course the Areopagitica, published in 1643, a vigorous and eloquent protest against a licencing law passed by the parliament.

Much of the Areopagitica is a celebration of toleration in matters of expression, for reasons that have now become more familiar to us: the more information the better able are we to choose wisely; the more information the better are we able to exercise our intellects so that they become more refined and perceptive. Another part of Milton's argument is that when something is suppressed it does not go away. It just takes on a romantic underground life and flourishes rather than being brought to the light of day where it might be refuted. All of these are today familiar arguments and components of free speech rhetoric.

There is one part, however, of Milton's Areopagitica that is rarely noticed in such discussions and when noticed is noticed with some embarrassment. About three quarters of the way through the tract Milton says, "Now you understand of course", and the tone in his prose suggests that he assumes that most of his readers have always understood this, "that when I speak of toleration and free expression I don't mean Catholics. Them we extirpate".1  Milton's admirers, especially those who have linked him to John Stuart Mill as one of the cornerstones of the free speech tradition, have difficulty with this passage and attempt to explain it away by saying that Milton, because of the limitation of his own historical period, was not able to see what we are able to see. The idea is that our conception of free speech is more capacious, more truly free, than this because we do not have an exclusion up our sleeves, ready to be sprung.

But the difference between Milton and us is a difference in what we would exclude from the zone of "free speech", not a difference between exclusion and inclusion. When Milton names Catholic discourse as the exception to his toleration he does so because in his view Catholic speech is subversive of everything speech, in general, is supposed to do -- keep the conversation going, continue the search for Truth. In short, if speech is really to be free in the sense that he desires, Catholics cannot be allowed freely to produce it. This might seem paradoxical, but in fact it is Milton's recognition of a general condition: free speech is what's left over when you have determined which forms of speech cannot be permitted to flourish. The "free speech zone" emerges against the background of what has been excluded. Everyone begins by assuming what shouldn't be said; otherwise there would be no point to saying anything.

Another example: one of the foremost proponents of free speech in this country is Nat Hentoff, a journalist well known for his jazz criticism and who has also taken up the cause of free speech no matter how disreputable or offensive the speech in question. But about two years ago he recanted, when he drew the line at campuses allowing certain forms of anti-semitic speech to flourish. Disciples of a certain Muslim group came to campuses and began to talk about "bagel eating vermin who had escaped from caves in the middle ages and were now, as then, infecting the world". Hentoff said this has gone too far. My point is that everyone has such a trigger point, which is either acknowledged at the beginning or emerges in a moment of crisis.

There is no-one who believes that everything should be said. Most of us today would not say, "Well, of course, you understand I don't mean toleration of Catholics". But we would say things like, "I don't mean toleration of neo-nazis" or "I don't mean toleration of discourses advocating child molestation". There is no-one in the history of the world who has ever been in favour of free speech.....

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

A : I think Critical Race Theorists are in a difficult position once they accept First Amendment rhetoric and look for a moral high ground from the vantage point of which racist speakers will either be shown the error of their ways or universally condemned. Insofar as critical race theorists buy into liberalism's valorization of rational discourse, they will think that their job is to show that racist speech is irrational and therefore is in some sense not speech at all. But this is to mistake both the nature of the enemy and the strategy for defeating him.

Those who utter racist speech (as we call it) would not accept that designation. The people that we think of as racist do not wake up in the morning and say to themselves "Today I'm going to go out and spew racist speech". What they say (and it's exactly what we say) is, "Today I am going to go out and tell the truth." Once you realise that racists don't think of themselves as racists but as tellers of the truth, then you realise that hate speech or racist speech as we designate it is not an anomaly, is not a cognitive mistake, is not a correctable error, is not something that can be diagnosed and therefore cured, but is in fact the rationality and truth telling of a vision we happen to despise.

The correct response to a vision or a morality that you despise is not to try and cure it or to make its adherents sit down and read John Stuart Mill's On Liberty, that's not going to do the job. The only way to fight hate speech or racist speech is to recognize it as the speech of your enemy and what you do in response to the speech of your enemy is not prescribe a medication for it but attempt to stamp it out. So long as Critical Race Theory and others fall into the liberal universalist assumption of regarding hate speech as some kind of anomaly which could be recognized as such by everyone, they're going to lose the game. They will win the game only if they really try to win it, rather than falling in with Justice Brandeis' pronouncement that "Sunshine is the best disinfectant".

This bromide flies in the face of all recorded history which tells us that forms of speech, once they get into circulation, do not wither away in the light of day; rather they attract the attention of some hearers, and begin to circulate in a more effective way. I know that this is heresy in the liberal discourse to which we all are, in some sense, committed. But it seems to me that I must agree with the American politician and journalist, Pat Buchanan, who once said, "If you can pollute the physical environment, you can pollute the cultural and mental environment".


Given the tone that has appeared on the boards, I thought this interview would be of interest. Racists, hate groups, terrorists, ant-semites, etc. are enemy enough to justify stamping out their words and opinions. Must Democrats and Republicans behave as if each other were the enemy too?