Justice Black’s “absolutist” reading of the First Amendment, while celebrated, is not consistent with the actual text of the First Amendment.
You could be forgiven for assuming you were in for a long slog through constitutional doctrine after glancing at the subtitle of Stanley Fish’s new book, The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump. But once you crack the cover of this slim volume, you quickly realize this is a breezy, entertaining, and very idiosyncratic tour of free speech theory and practice by one of America’s best-known legal and literary theorists.
Fish, who holds multiple appointments at law schools despite not being a lawyer, has been known in legal academic circles since the 1990s for his work on the concept of free speech. He started his career studying the late-medieval poetry of John Skelton and the works of John Milton while holding appointments in university English departments. He became well known in the academic legal community when, in 1994, he published a collection of essays on free speech, in which he argued that conservatives needed to understand the historical contingency of some of their claims about human nature and recognize the political purposes for some of their claims about culture and tradition. At the same time, he did not fully embrace the academic Left’s belief that society can be wholly refashioned for the better, if only (the collective) we could escape our historically determined, tradition-bound prejudices. Accordingly, Fish has been criticized as a post-modernist from the Right and a traditionalist from the Left.
In his new book, Fish returns to his idiosyncratic form of pleasing no political school of thought. He starts by proclaiming that the First Amendment (namely free speech) is a political tool—“ a participant in the partisan battle . . . not an apolitical oasis of principle.” This would suggest he sees contemporary claims about the principles of freedom of thought and expression as disingenuous, or at least naïve. Opponents of speech codes or campaign finance restrictions often have ulterior motives when they make arguments ostensibly premised on the need for a free exchange of ideas and the ability of a civil society to strive for truth in an open battle with error. Yet Fish also proclaims that “there is nothing wrong with” such an instrumental use of free speech. In fact, in his typical synthetic manner, Fish contends that freeing speech from the shackles of principle may allow the concept to do “the work we need it to do.” Free speech as a concept must be “flexible” and “malleable” in order to allow for its application in a variety of real-world situations.
This is an example of how Fish engages in theorizing only to wind up rejecting the notion that theory really matters much. In some ways, Fish, although to my knowledge he has never claimed as much, is reminiscent of John Dewey. Dewey rejected theory and claimed principles were really only useful for engaging with the here-and-now of everyday existence. To reach even further back, Fish reminds one of the sophists of ancient Greece, the skeptics who taught reasoning for its commercial or social utility. Fish has even authored a book entitled Winning Arguments: What Works and Doesn’t Work in Politics, the Bedroom, the Courtroom, and the Classroom.
Regardless of whether Fish concedes the importance of theory, his pragmatic concerns with what free speech “does” is ultimately a concern with the application of speech protections and the consequences of those applications. Fish sees speech as a sociological phenomenon with positive and negative effects for society: he eloquently terms it “a gift with two faces.” On the one hand, speech “makes possible the civilizing arts and enables the growth of individuals,” but on the other, “it is also the vehicle of suffering in the form of lies, slanders, and deceptions.” In fact, Fish argues, no one is really a free speech absolutist: everyone supports some exceptions.
Historically, Fish is quite right. Arguments for free speech have often been made in the service of a political goal, whether for the freedom to donate to campaigns, to produce and distribute pornography, or to wear an armband at a public school. And these contextualized applications of free speech doctrine have had their limits, even among the most ardent of speech libertarians. Even Hugo Black, a purported free speech absolutist, dissented in Tinker v. Des Moines Independent Community School District in 1969, when he contended public school officials could constitutionally punish the wearing of black armbands by students at school. In his dissent, Black sounded like the most hidebound traditionalist when he contended that the students’ protests were disruptive and the Court’s protection of such behavior was “the beginning of a new revolutionary era of permissiveness in this country.” Yet Fish’s instrumental defense of free speech runs the risk of reducing speech protections for ostensibly pragmatic reasons, which can often be mere pretenses for silencing dissenters. Free speech may be a means to reach an end: truth. But the effort to reach that end will be jeopardized if speech is curtailed because it does not appear to advance toward the goal of perceived truth.
Yet even Fish seems to agree that principles (and theory) matter and should guide behavior in public life. For example, despite justifying limits of the principle of free speech, Fish strongly embraces the idea of “freedom of inquiry” in colleges and universities. Fish argues that freedom of inquiry is essential to the university’s raison d’être: the search for “truth.” This strikes this reader as a distinction without much of a difference. That is, free speech, whether in principle or pursuant to current Supreme Court precedents, is often justified as a political right that can lead to truth prevailing in the realm of ideas and political disputes. Likewise, Fish’s notion of “freedom of inquiry” seeks to reveal the truth in an academic setting. Yet Fish is also concerned with the practical consequences of protecting speech. For example, he notes that the financial burden of protecting speakers invited to college campuses can be prohibitive.
Fish claims that Jonathan Haidt and Greg Lukianoff are wrongly concerned with the psychological health of students—albeit via a “tough love” approach—rather than with the purpose of a college education, which is “to draw students into an ongoing conversation presided over by academic, not psychological, protocols.” In this vein, Fish (refreshingly, to this reader’s eye) sounds like a curmudgeonly conservative, or at least a traditionalist, who dismisses peripheral concerns that get in the way of the search for truth.
Fish ventures into other First Amendment territory with a chapter on the Free Exercise and Establishment Clauses. He contends the Free Exercise Clause does not belong in the Constitution because it puts the courts in the untenable position of determining the limits of a valid religious or theologically based claim or practice, while the Establishment Clause requires the courts to maintain neutrality toward governmental endorsement of religion. One might respond that the religion clauses can work together to allow for a liberal protection of individuals’ faith and restrict the state from demanding general public support for a particular religion.
Finally, Fish has a chapter on truth and transparency. Here, he returns to the practical applications of free speech ideas by describing the problems with sunshine laws, which he contends hamper the pursuit of free inquiry and the search for truth because people are afraid to be honest when they are under the scrutiny of the media. Fish is not the first to note that mandated disclosure can curb or eliminate freedom of expression. For example, the Supreme Court recognized this in the 1958 decision of NAACP v. Alabama, which prohibited the state from forcing the disclosure of membership lists because it would hinder freedom of association for people who feared being “outed” as a member of a disfavored group.
At this point, you might be wondering what any of this has to do with Donald Trump. The answer? Very little. Trump is only referred to obliquely, which would be fine save for the subtitle’s promise that this book grapples with the Trump phenomenon. (One senses this was his publisher’s subtitle rather than his own.) Trump is disinterestedly assessed in a discussion of our “post-truth” politics. Fish simply notes that Trump does not play by the traditional rules of political discourse, which frees him in a way no politician has ever been freed: his embrace of a flippant regard for the truth liberates him from having to abide by normal standards of consistency and responsibility. Fish makes this remark in a section devoted to truth as a concept. He claims that post-modernists actually believe in objective truth; they simply want us to be aware of the lenses and tropes we use to come to know the truth. He urges us to realize that we must have pre-existing assumptions about the nature of things in order to evaluate claims to the truth of a matter. If this is all that post-modernists have been doing, then count this reader among the faithful.
Fish concludes with a short six-page chapter on “what it all means.” He strikes an optimistic tone, noting that humans today have a “huge inheritance” of tools by which we evaluate truth-claims and try to persuade one another about the reality of the world. Fish wants to protect and preserve these tools in order to pursue the truth, even if we cannot always be sure we have ascertained it. It is rare that one quotes Jacques Derrida in support of the quest for truth and an effort to reassure us that the pursuit is worthwhile. Fish does this with verve and good humor, and, if I may, a postmodern traditionalist’s special insight.