Thursday, February 15, 2007

with Peter Lowe & Annemarie Jonson ,© here

Q : Professor Fish, what do you mean when you say that there is no such thing as free speech?

A : Many discussions of free speech, especially by those whom I would call free speech ideologues, begin by assuming as normative the situation in which speech is offered for its own sake, just for the sake of expression. The idea is that free expression, the ability to open up your mouth and deliver an opinion in a seminar-like atmosphere, is the typical situation and any constraint on free expression is therefore a deviation from that typical or normative situation. I begin by saying that this is empirically false, that the prototypical academic situation in which you utter sentences only to solicit sentences in return with no thought of actions being taken, is in fact anomalous. It is something that occurs only in the academy and for a very small number of people.

Therefore, a theory of free speech which takes such weightless situations as being the centre of the subject seems to me to go wrong from the first. I begin from the opposite direction. I believe the situation of constraint is the normative one and that the distinctions which are to be made are between differing situations of constraint; rather than a distinction between constraint on the one hand and a condition of no constraint on the other. Another way to put this is to say that, except in a seminar-like situation, when one speaks to another person, it is usually for an instrumental purpose: you are trying to get someone to do something, you are trying to urge an idea and, down the road, a course of action. These are the reasons for which speech exists and it is in that sense that I say that there is no such thing as "free speech", that is, speech that has as its rationale nothing more than its own production.

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 : You have also referred to speech being only intelligible against a background of what isn't being said, the background of what already has been silenced. What is the silence you're talking about?

A : The silence has to do with the shape of any discourse. As Hobbes brilliantly points out again and again in his Leviathan, thought of a sequential and rational kind can only proceed when some set of stipulated definitions has been put at the beginning and established. Unless you have definitions of your topic, of your subject, demarcations of the field that you are about to explore, you cannot proceed because you have no direction. Hobbes also points out that such stipulative definitions are necessarily exclusionary. They exclude other possibilities, other possible ways of defining the field from which you might then have proceeded; since speech and reasoning can only occur when something is already in place and since the something that is already in place will be in place of something else that could have been in place, that something else which isn't there is the silent background against which the discourse resounds.

Q : You have written 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. Could you elaborate on this notion?

A : That's a wordy way of simply saying that when you talk you're talking in the service of something. In any normal situation you speak for a reason: to inform, to command, to acquiesce, to ask a question, to further an agenda, to close an agenda down. Another way to put this is to say that speech and communication are the signs of our distance from the condition we would most like to inhabit.

In paradise or in heaven (I speak here only through report and not direct experience), discursive speech is unnecessary because everyone is already in the place he or she would desire to be, allied in a perfect and an indistinguishable way with the good. Therefore there is no reason to say anything to anyone; because again the only reason to say something to someone else is to advance both of you in the direction you desire. But in heaven, everyone is at the place of optimal desire so it is imagined in great literature like Milton's Paradise Lost not as a scene of communication, but as a scene of celebration. Heaven's inhabitants express themselves as a chorus all of whose members sing the same song, and sound a note that is repetitive, ritual and ceremonial -- in short a long endless amen or hallelujah. It is only in Heaven that speech is free and spontaneous, because it doesn't mean anything; it doesn't have to mean anything. In this vale of tears, speech means, has a purpose and when we feel this purpose threatened by some of speech's forms, we will always curtail it.

Australia does not have such a principle of free expression such as the First Amendment enshrined in its Constitution. In what sense is it necessary or desirable for speech to be protected under a Constitution?

A : There is an important sense in which speech requires constitutional protection. Discussions of the First Amendment are often discussions about the history of the First Amendment: the reasons for which it was first instituted. One position, championed in the last thirty years by Judge Robert Bork who was famously denied a position on the Supreme Court, is that the original intention of the framers of the First Amendment was to protect political speech and therefore to prevent the government from silencing its own critics. It is Bork's view that the protection of political speech should mark the limits of First Amendment protection and therefore First Amendment protection should not be extended to slander, pornography, vituperation, and other socially undesirable forms of expression. I agree with Judge Bork. It seems to me that the First Amendment's protection of political speech is critical in a society which does not want its government to perpetuate by a number of illegitimate means the silencing of its critics.

This view of the First Amendment, a view that thought of the scope of its protection rather narrowly, was pretty much the standard view until the 1950s and 1960s. It is only since that time that a view of free speech protection which I would call libertarian has arisen and more or less won the field. By libertarian I mean a view of the First Amendment which privileges and values expression in and of itself independently of any real world consequence the speech might have.

Before the '50s and '60s there were a number of balancing tests that were at the heart of First Amendment jurisprudence; the rights of individuals to free expression were recognized but they were balanced against other rights and values. And so you had a series of formulae put forward by the courts designed to instruct you in how to balance various interests. One famous formula, put forward by Oliver Wendell Holmes in a series of cases in the beginning of the twentieth century, was the test of 'clear and present danger', which meant that expression was to be allowed in the service of robust and wide open debate in a democratic society up to the point where it seemed that the effect of that expression might constitute a danger to the very democratic process that was allowing it. Not surprisingly, both sides were dissatisfied with this formula. One side feared that with a 'clear and present danger test' in force some might be tempted to see the clear and present danger so early on that it amounted to censorship, others feared that a clear and present danger test if adhered to might lead to recognizing the danger only when it had materialized and it was too late to do anything about it.

Whichever side of this particular debate you might be on I think my point holds -- there was a sense of balancing the rights of individuals to freely deliver their opinions against the desires and needs of the society and the community. Since the '50s and '60s that second pole has dropped out and more and more you get a First Amendment rhetoric of individual liberty which has the effect of producing a roster of First Amendment heroes, who gain that status by uttering the vilest statements that can be imagined in situations designed to cause harm, embarrassment, and psychological damage to others. These persons are then put forward as representing the best instincts of the American experiment.

In this particular version of the First Amendment you get points (a) for being as vile as possible, and (b) for championing the rights of those you consider vile. This is a view associated in this country with the American Civil Liberties Union, an organisation whose project is to go out and find things it hates and then grow them.

Q : But isn't it the case that, sometimes, the best principles which underpin many social justice and equity issues are raised for consideration and debate only when the worst cases are involved?

A : I don't believe in such things as principles, if by that word you mean abstract rules which will apply to any number of fact situations while not being attached to any of them. Whenever such a "principle" is formulated it seems to me to have only two possible shapes: either it's perfectly empty because it is formulated at so high a level of generality -- "be ye perfect" -- that nothing or everything follows from it; or it is full of an agenda that has not yet announced itself and so is not a principle -- in the claimed sense -- at all. Nevertheless, the rhetorical weight of so called principles is considerable. If you can get the right "principles" on your side, if you can announce your own program and wrap it literally in the flag of the right high- sounding phrases, you can have a great advantage over your opponents. That is why, even though I am always arguing against the coherence of most First Amendment arguments and doctrines, I never urge people to stop using First Amendment formulas -- because they have so much resonance. Freedom of speech, individual rights, the establishment of autonomy, the freedom from governmental restraint -- these are magic phrases. The trick is to take those magic phrases and fill them in with the content that will then generate the outcome that you desire.

Q : You have written that free speech is a conceptual impossibility as the condition of speech being free in the first place is unrealizable. Why is this so?

A : The condition of speech being free is not only unrealizable, it is also undesirable. It would be a condition in which speech was offered for no reason whatsoever. Once speech is offered for a reason it is necessarily, if only silently, negating all of the other reasons for which one might have spoken. Therefore the only condition in which free speech would be realizable is if the speech didn't mean anything. Free speech is speech that doesn't mean anything.

Once meaning, assertion, predication get into the act the condition of freedom has already been lost and, as I would say, well lost because you want speech to mean something; you don't want to live in a world where people's utterances are weightless -- neither commit to anything, nor illuminate or challenge you in any way. The impossibility of free speech is one of the happy facts of our condition and not a fact to be lamented. There's no such thing as free speech and it's a good thing too.


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