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Principle, Pragmatism, and Paralysis: Stanley Fish on Free Speech

Published online by Cambridge University Press:  20 July 2015

Michael Robertson
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Unlike those who read Fish as declaring that free speech is an illusion or incoherent, I argue that Fish provides a superior explanation of what makes free speech possible, and a more insightful description of what judges are doing when they decide cases under laws which protect it. In this paper I first identify the central philosophical commitment from which Fish derives most of his controversial positions. Next, I demonstrate how his position on free speech in particular flows from this central philosophical commitment. Finally, in the main section of the paper, I consider three serious objections to Fish’s analysis of free speech, and consider how Fish might respond to them. I seek to defend Fish's denial that the relationship between freedom and constraint is one of simple opposition; rather he claims that constraint is the precondition for freedom. He therefore sees all speech as made under conditions of constraint. He also sees a commitment to censoring some speech as inherently contained within any commitment to freedom of speech, and so toleration of all viewpoints is impossible. He denies that any free speech principle can be neutral regarding viewpoints, and he denies that any "free market of ideas" is without bias and exclusions. He therefore rejects the accounts given by American courts deciding cases under the First Amendment which stress a fidelity to neutral principle. Since there are no such principles in existence, such courts are really doing one of two things. Either they are pragmatically advancing a partisan agenda, and constraining some speech in a way which is obfuscated, or their false belief in the existence of neutral principles paralyses them in the face of danger and prevents them from performing this pragmatic exercise.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 16 , Issue 2 , July 2003 , pp. 287 - 315
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2003

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References

I would like to thank Andrew Geddis, Richard Mahoney, Stanley Fish, and Richard Bronaugh for reading and commenting on earlier drafts of this paper.

1. Eagleton, Terry, “The Estate Agent” The London Review of Books (2 March 2000) at 11 Google Scholar. See too Berkowitz, Peter, “The Principle Problem” The Weekly Standard (20 March 2000) at 29 Google Scholar (“Free speech, he claims, does not exist…”); Rothstein, Edward, “A Provocateur for Whom Liberal Principles are a Sham” New York Times (22 January 2000) at B11 Google Scholar (“[Fish claims that] the doctrine of free speech is ‘conceptually incoherent’”). All of these are reviews of Fish, Stanley, The Trouble with Principle (Cambridge, MA: Harvard University Press, 1999)Google Scholar. [hereinafter Trouble].

2. Fish, Stanley, “Introduction: ‘That’s Not Fair’” in There’s No Such Thing as Free Speech, and it’s a Good Thing, Too (Oxford: Oxford University Press, 1994) at 13.Google Scholar [hereinafter Free Speech].

3. Schauer, Frederick, “The First Amendment as Ideology” (1992) 33 Wm. & Mary L. Rev. 853 at 856.Google Scholar

4. See Robertson, Michael, “Picking Positivism Apart: Stanley Fish on Epistemology and Law” (1999) 8 S. Cal. Interdisc. L. J. 401 Google Scholar; Robertson, Michael, “The Limits of Liberal Rights: Stanley Fish on Freedom of Religion” (2002) 10 Otago L. Rev. 251 Google Scholar; Robertson, Michael, “‘What am I Doing?’ Stanley Fish on the Possibility of Legal Theory” (2002) 8 Legal Theory 359 Google Scholar; Robertson, Michael, “Deconstructed to Death? Fish on Freedom” in Olson, G. & Worsham, Lynn, eds., Postmodern Sophistry: Stanley Fish and the Critical Enterprise (New York: SUNY Press, forthcoming).Google Scholar

5. For an expanded description, with supporting references to Fish’s writings, see the works cited in note 4, particularly “Picking Positivism Apart: Stanley Fish on Epistemology and Law”, and “‘What am I Doing?’ Stanley Fish on the Possibility of Legal Theory”. It would take a separate article to evaluate the soundness or coherence of this account of the self, and such a work would not devote much space to Fish, because others, such as Michael Sandel, Charles Taylor and Alasdair MacIntyre, have devoted more effort to elaborating and justifying it. All I seek to do here is describe this conception of the self and indicate how some of Fish’s claims flow from it. This enables me to focus on what is unique about Fish, because although others have endorsed the same conception of the self, they have not seen the same implications of such a commitment.

6. Sandel, Michael, Democracy ‘s Discontent (Cambridge, MA: Belknap Press of Harvard University Press, 1996) at 12.Google Scholar

7. Ibid. at 14.

8. For a fuller consideration of Fish’s position on theory, see Robertson, “‘What am I Doing?’ Stanley Fish on the Possibility of Legal Theory”, supra note 4.

9. Fish, Stanley, “Critical Self-Consciousness, or, Can We Know What We’re Doing?” in Doing What Comes Naturally. Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, NC: Duke University Press, 1989) at 459.CrossRefGoogle Scholar [hereinafter Naturally].

10. Fish, “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 108. See too Fish, “Fraught with Death” in Trouble, supra note 1 at 93.

11. For a fuller elaboration of the points made in this paragraph, see Robertson, “Deconstructed to Death? Fish on Freedom”, supra note 4.

12. Note that this argument is different from the more familiar point that my freedom of speech places some others under a constraint with respect to my actions, that is, they have a duty not to interfere with my speech.

13. Fish, “The Dance of Theory” in Trouble, supra note 1 at 115. See too Fish, “The Rhetoric of Regret” in Trouble, supra note 1 at 85-86; Fish, “Introduction: ‘That’s Not Fair’” in Free Speech, supra note 2 at 13-14; Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 103-04.Google Scholar

14. My consideration of this objection is taken from Robertson, “Deconstructed to Death? Fish on Freedom”, supra note 4.

15. For an elaboration of this argument (with Ronald Dworkin as the target), see Fish, , “Introduction: ‘That’s Not Fair’” in Free Speech, supra note 2 at 14–15.Google Scholar

16. Fish, “Of an Age and Not for All Time” in Trouble, supra note 1 at 50.

17. Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 106-07Google Scholar. See too Fish, , “The Rhetoric of Regret” in Trouble, supra note 1 at 78 Google Scholar; Fish, , “Fraught with Death” in Trouble, supra note 1 at 93.Google Scholar

18. Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 123 Google Scholar. For a slightly different version of this argument see Fish, , “The Rhetoric of Regret” in Trouble, supra note 1 at 86–87.Google Scholar

19. Fish, , “Almost Pragmatism: The Jurisprudence of Richard Posner, Richard Rorty, and Ronald Dworkin” in Free Speech, supra note 2 at 217 Google Scholar. Italics removed.

20. Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech supra note 2 at 129 Google Scholar. See too Fish, , “Fraught with Death” in Trouble, supra note 1 at 102 Google Scholar: “total toleration of speech makes sense only if speech is regarded as inconsequential and unlikely to bring about a result you would find either heartening or distressing.”

21. 250 U.S. 616 (1919).

22. 268 U.S. 652 (1925).

23. 249 U.S. 47 (1919).

24. Abrams, supra note 21 at 628.

25. Gitlow, supra note 22 at 673.

26. Tribe, Laurence, American Constitutional Law, 2nd ed. (Mineola, NY: Foundation Press, 1988) at 843.Google Scholar

27. 341 U.S. 494 (1950).

28. Ibid. at 588-89.

29. Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 127 Google Scholar. See too Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 111 Google Scholar.

30. Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 126–27.Google Scholar

31. Fish, “Fraught with Death” in Trouble, supra note 1 at 94.

32. This is clear in pieces like Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 102-19Google Scholar, and Fish, , “The Rhetoric of Regret” in Trouble, supra note 1 at 75–92 Google Scholar. If Fish is right that the American free speech regime systematically undervalues the harmful consequences of hate speech, it is not a mistake that other liberal countries make. He notes that Canada has provisions in its Criminal Code dealing with hate speech. See Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 104–05 Google Scholar. See too Greenawalt, Kent, Speech, Crime, and the Uses of Language (New York: Oxford University Press, 1989) at 143 Google Scholar footnote 10, which describes how some European countries have outlawed hate speech.

33. Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 129 Google Scholar.

34. Ibid. at 127-29.

35. Fish, , “The Dance of Theory” in Trouble, supra note 1 at 118-21.Google Scholar

36. See Fish’s approval of the approach of the Canadian courts in Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 104-05, 108 Google Scholar; Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 127.Google Scholar

37. 343 U.S. 250 (1951).

38. The ultimate triumph of the Holmes/Brandeis approach to “clear and present danger” in the Supreme Court can be seen in Brandenburg v. Ohio 395 U.S. 444 (1969).

39. Dennis, supra note 27 at 505.

40. Ibid. at 509.

41. Ibid. at 510.

42. Ibid at 542-43.

43. Ibid at 524-25.

44. Beauharnais, supra note 37 at 253.

45. Ibid at 259-61.

46. Ibid. at 275.

47. 578 F.2d 1197 (7th Cir. 1978).

48. 771 F.2d 323 (7th Cir. 1985).

49. Gitlow, supra note 22 at 673.

50. Fish, , “Fraught with Death” in Trouble, supra note 1 at 107 Google Scholar. See too Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 119.Google Scholar

51. On the general importance to liberalism of a progressivist philosophy of history, see Gray, John, “Mill’s Liberalism and Liberalism’s Posterity” in Pincione, Guido & Spector, Horacio, eds., Rights, Equality, and Liberty, (Norwell, MA: Kluwer Academic Publishing, 2000) at 138-39Google Scholar: [I]t is a notable feature of postwar liberal theory in the English-speaking world … that it is indeed reliant upon a particular philosophy of history in which the idea of progressive cultural convergence on a universal civilization is central .... This Eurocentric historical philosophy, which identified European hegemony with the advance of the entire species and understood progress as the universal adoption of Western institutions, beliefs and values, was a central element in the Enlightenment project that Mill ... endorsed unequivocally.

52. Fish questions whether the confidence induced by this liberal belief in progressivism is well-founded. See Fish, , “Fraught with Death” in Trouble, supra note 1 at 103-04, 107-09.Google Scholar

53. Fish develops this second response in “The Rhetoric of Regret” in Trouble, supra note 1 at 75ff, and Fish, “Fraught with Death” in Trouble, supra note 1 at 93ff See too Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 120ffGoogle Scholar

54. Fish, “The Rhetoric of Regret” in Trouble, supra note 1 at 91: “[T]here is no principled way to do this, but let’s remember too that the principle upheld in not doing it—in not standing up for substantive justice when speech is productive of harms—is the principle of doing nothing, the principle, as the dissenting judge in Collin v. Smith put it, of ‘paralysis.’”

55. Fish, “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 127: “Note that a test like this one will not in every case, lead to the regulation of injurious speech; in many instances the calculation the test directs will lead to the conclusion that in this instance regulating injurious speech will be more costly than tolerating it.”

56. Fish, “The Rhetoric of Regret” in Trouble, supra note 1 at 82.

57. Ibid. at 85-86. See too Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 103-04.Google Scholar

58. Greenawalt, supra note 32 at 48.

59. The case of those who do not accept that liberal notions of rationality provide the proper tools to demonstrate which viewpoints are false requires a separate and more detailed analysis. See Robertson, , “The Limits of Liberal Rights: Stanley Fish on Freedom of Religion”, supra note 4 for an analysis of Fish’s discussion of conservative Christians.Google Scholar

60. 376 U.S. 254 (1964).

61. 418 U.S. 323 (1974).

62. Mr. Justice Douglas dissented in Gertz, stating that the First and Fourteenth Amendments bar the states and Congress from passing any libel laws. But the facts before the court involved the publication of false statements that the publisher genuinely believed to be true. Douglas’ dissent does not consider intentional lies, only the chilling effect of libel laws on the ex Pression of genuinely held views on public affairs.

63. Gertz, supra note 61 at 340.

64. Intentional false statements can be protected if they fall within the category of satire or parody which no one would take to be true. See Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

65. Concurring opinion of Mr. Justice|Douglas in Brandenburg v. Ohio, supra note 37 at 456-57. See too Newman, Roger K., Hugo Black. A Biography, 2nd ed. (New York: Fordham University Press, 1997) at 513 Google Scholar where Mr. Justice Black is quoted as saying: “I believe with Jefferson that it is time enough for government to step in to regulate people when they do something, not when they say something, and I do not believe myself that there is any halfway ground if you enforce the protections of the First Amendment.”

66. Fish, “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 124, 127.

67. Gitlow, supra note 22 at 673, cited in Fish, “Fraught with Death” in Trouble, supra note 1 at 106.

68. Fish, , “Fraught with Death” in Trouble, supra note 1 at 94 Google Scholar. Fish’s language may court misunderstanding here. He is not claiming that all speech actually has empirical consequences. Indeed, earlier we saw him give examples of speech which is tolerated precisely because it has no empirical consequences (“call-in talk shows and major league baseball games”). Rather he is making the conceptual point that any speech only has importance for us (i.e., is not just “noise”) because of its linkage with possible consequences. Of course, the possibility of those consequences ensuing may be slight as with the speech Holmes is commenting upon in the Gitlow case, and the con-sequences may in the event fail to materialize. But the ability to redescribe most speech as the action of seeking to achieve certain consequences means that the speech/action distinction is “fatally confused”.

69. Ibid. at 98.

70. See Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 105–06 Google Scholar; Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 125 Google Scholar; Fish, , “Fraught with Death” in Trouble, supra note 1 at 98–99 Google Scholar; Fish, , “The Dance of Theory” in Trouble, supra note 1 at 139–40.Google Scholar

71. Fish, , “Introduction: ‘That’s Not Fair’” in Free Speech, supra note 2 at 15.Google Scholar

72. Fish, , “The Dance of Theory” in Trouble, supra note 1 at 147.Google Scholar

73. Of course, one can employ the strong and the weak response in tandem, as Greenawalt does. See Greenawalt supra note 32 at 5: I distinguish between the outer range of coverage and what should finally be regarded as protected speech. Roughly, if communicative or other acts are beyond the range of coverage, their prohibition can be considered without regard to freedom of speech. If acts are covered by a principle of free speech, it does not follow that their prohibition is foreclosed; in certain circumstances the state’s interest may be powerful enough to forbid acts that qualify as speech.

74. Chaplinsky v. New Hampshire 315 US 568 (1941) per Mr. Justice Murphy at 571-72.

75. See Ely, John Hart, “Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis” (1975) 88 Harv. L. Rev. 1482.Google Scholar

76. See Robertson, , “Deconstructed to Death? Fish on Freedom”, supra note 4.Google Scholar

77. Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 103-4Google Scholar. See too ibid. at 108; Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 123-24, 129-30Google Scholar; Fish, , “The Dance of Theory” in Trouble, supra note 1 at 115.Google Scholar

78. Abrams, supra note 21 at 630.

79. See Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 124 Google Scholar; Fish, , “Fraught with Death” in Trouble, supra note 1 at 95.Google Scholar

80. Fish, , “Fraught with Death” in Trouble, supra note 1 at 95–96 Google Scholar. See too ibid. at 103-04, 109, 112. For other versions of this critique, see Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 109-10, 118-19Google Scholar; Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 132.Google Scholar

81. Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 113 Google Scholar. See too Fish, , “The Rhetoric of Regret” in Trouble, supra note 1 at 92 Google Scholar; Fish, , “Fraught with Death” in Trouble, supra note 1 at 102–03 Google Scholar.

82. Fish, , “Fraught with Death” in Trouble, supra note 1 at 104–05.Google Scholar

83. Ibid. at 105. See too Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 130. Google Scholar

84. Fish, , “Jerry Falwell’s Mother, or, What’s the Harm?” in Free Speech, supra note 2 at 130 Google Scholar. See too Fish, , “The Rhetoric of Regret” in Trouble, supra note 1 at 87–88 Google Scholar. For a slightly different approach to the slippery slope argument see Fish, , “There’s No Such Thing as Free Speech, and it’s a Good Thing, Too” in Free Speech, supra note 2 at 111.Google Scholar

85. See supra note 3.

86. The consequences of Fish’s analysis are therefore confined to the discipline of philosophy, and the answers one would give to some traditional questions asked within that discipline. See Fish, , “Theory Minimalism” (2000) 37 San Diego L. Rev. 761 Google Scholar. For more detail on this point, see Robertson, , “‘What Am I Doing?’ Stanley Fish on the Possibility of Legal Theory” supra note 4.Google Scholar

87. See Fish, , “Consequences” in Naturally, supra note 9 at 322-25Google ScholarPubMed; Fish, , “Anti-Foundationalism, Theory Hope, and the Teaching of Composition” in Naturally, supra note 9 at 346–50.Google Scholar

88. Fish, , “Fraught with Death” in Trouble, supra note 1 at 113-14Google Scholar. See too Fish, , “Taking Sides” in Trouble, supra note 1 at 8 Google Scholar; Fish, , “The Dance of Theory” in Trouble, supra note 1 at 150.Google Scholar

89. Fish, , “Fraught with Death” in Trouble, supra note 1 at 114.Google Scholar

90. Fish, , “The Rhetoric of Regret” in Trouble, supra note 1 at 89.Google Scholar

91. Fish, , “Boutique Multiculturalism” in Trouble, supra note 1 at 72.Google Scholar