Thursday, February 15, 2007

FROM here

Civil Liberties invited Professor Stanley Fish of Duke University and
ACLU Vice President Franklyn S. Haiman to comment on each other's
new books, both of which explore the subject of hate speech. The
"reviews" are followed by the authors' replies.

There's No Such Thing As Free Speech ... And It's A Good Thing Too
by Stanley Fish. Oxford University Press. 1994. 332 pages.

Civil libertarians are likely to assume from this book's title, as I
did, that it would make them mad as hell. If so, they would be surprised.
Apart from only two chapters on freedom of speech (one of which provides
the book's provocative title) that do, indeed, raise my hackles, I found
much that was agreeable in this collection of superbly crafted speeches
and articles by Duke University English and Law Professor Stanley Fish.
In 16 other chapters devoted to issues such as affirmative action,
multiculturalism and philosophy of law, I discovered what I regard as a
truly liberal perspective.

That characterization will probably raise Professor Fish's hackles
for, although he casts a plague on the houses of both liberalism and
conservatism, he is especially venomous toward the former. This may be
due in part to a tendency we sometimes have to be harder on our friends
than on our enemies. But mostly it is because of his strange definition
of liberalism, which creates a stereotype that in no way resembles my own
concept of it. He claims, for example, that an "impossible dream of
liberalism" is to behave as if there were no history, no context to one's
actions, and he then asserts that, since this is inconceivable,
"Liberalism Doesn't Exist" (title of chapter 10). He also contends that
there is a contradiction between liberalism and conviction or passion, and
persists in maintaining, as in a previous interchange between us in the
Boston Review, that there is no such thing as an open mind, but only
closed or empty ones.

Besides my denial of his unsupported assertion that liberals seek to
escape from their history, my knowledge from experience that liberalism
can be as passionate a conviction as any other, and my utter rejection of
his view that unless one locks one's basic beliefs irrevocably into one's
mind everything in it will spill out, I cannot help but wonder why he
feels it necessary to attack liberalism so feverishly if it doesn't even

From his premise that the "American mind, like any other, will always
be closed," and his "first law of tolerance-dynamics" that "tolerance is
exercised in direct proportion to there being anything at stake," Fish
proceeds to repudiate the advice of Voltaire that we should defend to the
death the right to speak of those whose views we despise. Instead, he
endorses restrictions on racist communication (thus critical of the court
decisions regarding Skokie), on the intentional infliction of emotional
distress through speech (thus condemning the Supreme Court's decision in
Hustler v. Falwell), and on pornography (thus supporting the views of
Catherine MacKinnon that were rejected in American Booksellers Association
v. Hudnut).

On all of these free speech issues I could not disagree more. And
contrary to his assumptions, this is not because of some unexamined,
unarticulable faith in the First Amendment that ignores the fact that
speech may sometimes have harmful psychological consequences, nor because
I view freedom of speech as an end in itself rather than a means to some
greater good. Rather, it is because I differ with him profoundly on what
that greater good is. For Fish it is a set of substantive humanistic
values, laudable though they be, that he would impose coercively on others
because he believes those values to be right. For me it is a belief that
the greatest good for the greatest number is more likely to emerge from a
process of unfettered discussion and persuasion, even if sometimes
emotionally repulsive, than from the imposition of the values of those who
happen to be in power at a given time and place.

I find it ironic that Fish does not share my view on this, given the
attraction he himself has to vehement and often caustic argumentation, as
explicitly avowed and amply demonstrated in his book. Among other things,
for example, he notes with apparent pride how he maintained an entirely
cordial social relationship over meals and on the tennis court with Dinesh
D'Souza as he went from campus to campus with him in a series of debates
on political correctness, multiculturalism and affirmative action, in
which he mercilessly ripped Mr. D'Souza and his neo-conservative views to
shreds. Professor Fish's speeches in those debates constitute five
chapters, which I read with great delight and in almost complete
agreement. Space does not permit me to explain how I found myself in
sympathy with many of the views expressed in other chapters as well, the
two on freedom of speech unequivocally excepted.

One final quibble. I cannot fathom how he could lump Nat Hentoff in
with William Simon, William Bennett, Lynne Cheney, Hilton Kramer and
Dinesh D'Souza as one who would "put those women and blacks and gays in
their proper places, at your feet." Just because Nat is a near-absolutist
on the First Amendment? Perhaps Professor Fish's stereotypes have once
again led him astray.

-- Franklyn S. Haiman
John Evans Professor Emeritus of Communication Studies,
Northwestern University

Fish replies: Franklyn Haiman disclaims any "unexamined, unarticulable
faith in the First Amendment," but then announces just such a faith when
he declares his "belief that the greatest good for the greatest number is
more likely to emerge from a process of unfettered discussion and
persuasion." Nowhere does Mr. Haiman tell us how this process works; what
is it about "unfettered discussion" that makes it a better vehicle for the
emergence of value than the exercise, by responsible (in two senses)
persons of substantive judgment? The usual answer to this question begins
with the Holmesian observation that judgment is variable not only between
persons but in the life of the single person who may discard tomorrow the
viewpoint he would impose today. Why institutionalize a value that in
time might well be rejected by those who now urge it most strongly? Isn't
it the case, as Holmes put it, that "the ultimate good desired is better
reached by the free trade in ideas"? But if our present problem is that
no one an be trusted to specify what the "ultimate good" is, how is it
that anyone will be able to recognize the ultimate good when and if it
appears? And why should it appear at all if the free trade in ideas is
undirected and random in its outcomes, as it must be if "free" is taken
seriously? These questions might receive intelligible answers if the
vision underlying the free trade theory were theological, if, like Milton,
we believed in the process because of a prior belief in a God who was at
once guiding it and waiting to embrace us, suitably transformed, at its
end. But no such "faith," to use Haiman's word, informs First Amendment
rhetoric, which is militantly secular and hostile to theological
imperatives. To be sure, First Amendment rhetoric has its own imperative
-- not "be ye perfect," but "be ye autonomous" -- but that imperative is
as empty as the process it supposedly mandates (autonomous for what?), and
until someone shows me what good (ultimate or not) it generates, and by
what means, I'll put my faith in the convictions that grip me, and put my
efforts into trying to get those convictions enacted into law. If this
means the imposition of my values on others, I prefer it to the imposition
on me of the values thrown up by a process that is either guided by
nothing or guided by forces and agents hiding behind it even as they
preach the false (because impossible) gospel of neutrality.

"Speech Acts" And The First Amendment
by Franklyn S. Haiman. Southern Illinois University Press. 1993. 103 pages.

Franklyn Haiman is wrong about speech act theory, but he is right to
criticize the appropriation of that theory by some legal academics, and
therefore his analysis of First Amendment jurisprudence is pretty much on
target. Haiman is misled into thinking that speech act theory rests on a
distinction between "pure speech" -- speech primarily expressive or
descriptive or assertive -- and "speech acts" -- speech that is a form of
behavior and brings about changes in the world. There is support for this
account of the theory in the opening chapters of J. L. Austin's How To Do
Things With Words, where Austin distinguishes (for example) between my
reporting that a marriage has occurred and saying "I do" in the
appropriate circumstances. "When I say, before the register or altar, 'I
do', I am not reporting on a marriage; I am indulging in it."

That, however, is only half of the story, for after having introduced
the distinction between "pure speech" and a "speech act" Austin undoes it
in the direction of the latter, discovering in the course of his
discussion that assertions, descriptions and expressions, no less than
orders, promises and threats, are part of an effort to do something. An
utterance is never simply words; it is a component in a "total speech
act," an act that is purposive and contemplates consequences; "once we
realize that what we have to study is not the sentence but the issuing of
an utterance in a speech situation, there can hardly any longer be a
possibility of not seeing that stating is performing an act."

I find Austin's analysis entirely persuasive, which means I believe
that there is no pure speech, only speech acts, only speech that spills
out into the world and alters it. Haiman believes the opposite, that
there is only "pure speech," symbolic as opposed to non-symbolic behavior
which changes nothing without the addition of "human agents who are
persuaded, for whatever reasons, to act on" it. But despite the sharpness
of our difference on this point, we finally end up in the same place
because we share an opponent, the person who thinks that one can formally
(by linguistic cues) distinguish mere speech from speech acts, and then
use the distinction to mark off protected speech from speech the state
might regulate.

Haiman's objection to this move is exactly on point: a statement that
takes the form of a threat as in "If you come near me, I'll hit you" might
not, in a particular situation, either be intended as such or received as
such; and therefore the determination of whether it is a threat in any
serious (and culpable) sense could not stop at noting the form of the
utterance, but would have to go on to ask questions about the context of
its production and reception.

But if assessing the real world force of an utterance depends on such
an extended inquiry, then the "a priori" division of utterances into pure
speech and speech acts would "seem to be a fruitless enterprise" since it
won't have told you what you want to know. You might as well, says
Haiman, view the utterance "simply as speech" and get on with your
investigation of the work it does in the world. And I would add, with a
difference that is finally inconsequential, you might as well view the
utterance "simply as action" and get on with your investigation of what
kind of action it is and whether or not its effects warrant state
attention. From apparently opposing directions, Haiman and I will both be
engaged in the task of identifying the factors in play and weighing the
costs and benefits of permitting or restraining certain forms of

The question we both will be asking, whether we pose it to something
called speech or something called action, will be the same: "What harm
does the behavior in question do to other people"? To the question asked
by categorizing theorists -- is this utterance one we should regulate or
protect? -- both Haiman and I will say "it depends"; it depends on any
number of things, on the "seriousness" of the harm, on whether it is
"direct and immediate or indirect and remote", on whether it is
psychological or physical, and, if it is psychological, whether the
psychological effect is so debilitating that judicial attention is
warranted. It is possible that in the course of making these
determinations Haiman and I would end up on different sides of a
particular issue (although on the issues of sexist speech, hate speech and
enhanced penalties for hate crimes we come down just about in the same
place), but we would not differ in our commitment to balancing the
competing interests that can be located in any situation that rises to the
threshold of First Amendment notice. Balancing, of course, is a notion
distressing to many because it admits political considerations into an
area that should, we are told, be a forum of principle. But political
considerations are always there whether they are acknowledged or not, and
it is to Haiman's credit that he acknowledges them even to the extent of
naming consensus and enforceability as criteria for deciding when it would
be wise or unwise to regulate. It is a pleasure to read someone almost as
unprincipled as I am.

-- Stanley Fish
Arts and Sciences Professor of English and
Professor of Law at Duke University

Haiman replies: I am delighted to learn that Stanley Fish would "come down
just about in the same place" as I do with respect to hate and sexist
speech. Either I have grossly misread what he says in his book, or he has
changed his mind on the subject or his chapters on freedom of speech were
uncharacteristically lacking in clarity.

He contends that I am wrong in claiming that speech act theory
distinguishes certain kinds of utterances from others on the basis of
their alleged capacity to change their environment. But he finds this to
be an inconsequential difference between us since we both end up with
essentially the same conclusions when deciding if restrictions on speech
are justified, whether the particular expression at issue is classified as
pure speech or a speech act. He does concede that the uses made of speech
act theory by some legal scholars may justify my critique, and he
apparently shares that concern.

I am likewise prepared to make a concession -- namely, that from a
certain perspective, such as his, it is reasonable to regard all speech as
a form of action that may have consequences in the physical world. What I
find unacceptable about his argument, however, is that obliterating the
line between speech and action, such as the line I draw between symbolic
and nonsymbolic behavior, is, or should be, of no significance in our
decision-making regarding the scope of constitutionally protected speech.
Indeed, this argument seems in direct contradiction to his book's
eloquently pithy analysis of the meaning of the First Amendment:

No one would think to frame a First Amendment that began
'congress shall make no law abridging freedom of action'; for
that would amount to saying 'Congress shall make no law,' which
would amount to saying 'There shall be no law.' ... If the First
Amendment is to make any sense, have any bite, speech must be
declared not to be a species of action, or to be a special form
of action lacking the aspects of action that cause it to be the
object of regulation.

I can only conclude from this passage, which I endorse with
enthusiasm, that if Fish finds my distinction between symbolic and
nonsymbolic behavior to be wanting, he must either come up with some other
principle to distinguish behavior that is protected by the First Amendment
from that which is not or abandon the First Amendment altogether. If he
chooses the latter course he would then have to decide, in every case,
whether the so-called speech act was to be punished or not, and he would
have to do so in the same way he would do it with non-speech acts. I
cannot agree to that kind of blank check balancing of speech against other
competing social interests, and I can never be that "unprincipled" in my
commitment to the First Amendment.


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