THE GORGIAS
from the Stanford Encyclopedia of Philosophy

The Gorgias is one of Plato's most bitter dialogues in that the exchanges are at times full of anger, of uncompromising disagreement, plenty of misunderstanding, and cutting rhetoric. In these respects it goes beyond even the Protagoras, a dialogue that depicts a hostile confrontation between Socrates and the renowned sophist by the same name.[24] The quarrel between philosophy and rhetoric shows itself as an ugly fight in the Gorgias.

What is the fight about? Socrates asks Gorgias to define what it is that he does, that is, to define rhetoric. And he asks him to do it in a way that helps to distinguish rhetorical from philosophical discourse: the former produces speeches of praise and blame, the latter answers questions through the give and take of discussion (dialegesthai; 448d10) in an effort to arrive at a concise definition, and more broadly, with the intent to understand the subject. The philosopher is happy to be refuted if that leads to better understanding; wisdom, and not reputation, is the goal (457e-458a).

Gorgias is forced by successive challenges to move from the view that rhetoric is concerned with words to the view that its activity and effectiveness happen only in and through words (unlike the manual arts) to the view that its object is the greatest of human concerns, namely freedom. Rhetoric is “the source of freedom for humankind itself and at the same time it is for each person the source of rule over others in one's own city” (452d6-8). This freedom is a kind of power produced by the ability to persuade others to do one's bidding; “rhetoric is a producer of persuasion. Its whole business comes to that, and that's the long and short of it” (453a2-3). But persuasion about what exactly? Gorgias' answer is: about matters concerning justice and injustice (454b7). But surely there are two kinds of persuasion, one that instills beliefs merely, and another that produces knowledge; it is the former only with which rhetoric is concerned. The analogy of this argument to the critique of poetry is already clear; in both cases, Socrates wants to argue that the speaker is not a truth speaker, and does not convey knowledge to his audience. As already noted, Socrates classifies poetry (dithyrambic and tragic poetry are named) as a species of rhetoric. It's goal is to gratify and please the spectator, or differently put, it is just a kind of flattery. Strip away the rhythm and meter, and you have plain prose directed at the mob. It's a kind of public speaking, that's all (502a6-c12).

The rhetorician is a maker of beliefs in the souls of his auditors (455a3-4). And without that skill — here Gorgias begins to wax at length and eloquently — other arts (such as medicine) cannot do their work effectively (456bff). Rhetoric is a comprehensive art. But Gorgias offers a crucial qualification that turns out to contribute to his downfall: rhetoric should not be used against any and everybody, any more than skill in boxing should be. Although the rhetorician teaches others to use the skill justly, it is always possible for the student to misuse it. This is followed by another damaging admission: the rhetorician knows what justice, injustice, and other moral qualities are, and teaches them to the student if the student is ignorant of them (460a). It would follow that, in Socrates' language, the true rhetorician is a philosopher; and in fact that is a position Socrates takes in the Phaedrus. But Gorgias is not a philosopher and does not in fact know — cannot give an account of — the moral qualities in question. So his art is all about appearing, in the eyes of the ignorant, to know about these topics, and then persuading them as is expedient (459d-e). But this is not something Gorgias wishes to admit; indeed, he allows himself to agree that since the rhetorician knows what justice is, he must be a just man and therefore acts justly (460b-c). He is caught in a contradiction: he claimed that a student who had acquired the art of rhetoric could use it unjustly, but now claims that the rhetorician could not commit injustice.

All this is just too much for Gorgias' student Polus, whose angry intervention marks the second and much more bitter stage of the dialogue (461b3). A new point emerges that is consistent with the claim that rhetoricians do not know or convey knowledge, viz. that it is not an art or craft (techne) but a mere knack (empeiria, or experience). Socrates adds that its object is to produce gratification. To develop the point, Socrates produces a striking schema divided into care of the body and care of the soul. Medicine and gymnastics truly care for the body, cookery and cosmetics pretend to but do not. Politics is the art that cares for the soul; justice and legislation are its branches, and the imitations of each are rhetoric and sophistry. As medicine stands to cookery, so justice to rhetoric; as gymnastics to cosmetics, so legislation to sophistry. The true forms of caring are arts (technai) aiming at the good; the false, knacks aiming at pleasure (464b-465d). Let us note that sophistry and rhetoric are very closely allied here; Socrates notes that they are distinct but closely related and therefore often confused by people (465c). What exactly their distinction consists in is not clear, either in Plato's discussions of the matter, or historically. Socrates's polemic here is intended to apply to them both, as both are (alleged) to amount to a knack for persuasion of the ignorant by the ignorant with a view to producing pleasure in the audience and the pleasures of power for the speaker.

Socrates' ensuing argument with Polus is complicated and long. The nub of the matter concerns the relation between power and justice. For Polus, the person who has power and wields it successfully is happy. For Socrates, a person is happy only if he or she is (morally) good, and an unjust or evil person is wretched — all the more so, indeed, if they escape punishment for their misdeeds. Polus finds this position “absurd” (473a1), and challenges Socrates to take a poll of all present to confirm the point. In sum: Plato's suggestion is that rhetoric and sophistry are tied to substantive theses about the irrelevance of moral truth to the happy life; about the conventionality or relativity of morals; and about the irrelevance of the sort of inquiry into the truth of the matter (as distinguished from opinions or the results of polls) upon which Socrates keeps insisting. Socrates argues for some of his most famous theses along the way, such as the view that “the one who does what's unjust is always more miserable than the one who suffers it, and the one who avoids paying what's due is always more miserable than the one who pays it” (479e3-6). And if these hold, what use is there in rhetoric? For someone who wishes to avoid doing himself and others harm, Socrates concludes, rhetoric is altogether useless. Tied into logical knots, Polus succumbs.

All this is just too much for yet another interlocutor in the dialogue, Callicles. The rhetoric of the Gorgias reaches its most bitter stage. Callicles presents himself as a no-holds-barred, bare knuckled, no obfuscation real-poliltik figure. Telling it like it is, he draws a famous distinction between nature and convention, and advances a thesis familiar to readers of Republic books I and II: “but I believe that nature itself reveals that it's a just thing for the better man and the more capable man to have a greater share than the worse man and the less capable man. Nature shows that this is so in many places; both among the other animals and in whole cities and races of men, it shows that this is what justice has been decided to be: that the superior rule the inferior and have a greater share than they” (483c8-d6). This is the “law of nature” (483e3; perhaps the first occurrence in Western philosophy of this famous phrase). Conventional talk of justice, fairness, not taking more than is your share, not pursuing your individual best interest — these are simply ways by which the weak seek to enslave the strong. The art of rhetoric is all about empowering those who are strong by nature to master the weak by nature.

Callicles' famous diatribe includes an indictment of philosophy as a childish occupation that, if pursued past youth, interferes with the manly pursuit of power, fosters contemptible ignorance of how the real political world works, and renders its possessor effeminate and defenseless. His example is none other than Socrates; philosophy will (he says prophetically) render Socrates helpless should he be indicted. Helplessness in the face of the stupidity of the hoi polloi is disgraceful and pathetic (486a-c). By contrast, what would it mean to have power? Callicles is quite explicit: power is the ability to fulfill whatever desire you have. Power is freedom, freedom is license (492a-c). The capacity to do what one wants is fulfillment in the sense of the realization of pleasure. Rhetoric is a means to that end.

The quarrel between rhetoric and philosophy, thus understood, ultimately addresses a range of fundamental issues. “Rhetoric” is taken here to constitute an entire world view. Its quarrel with philosophy is comprehensive, and bears on the nature of nature; the existence of objective moral norms; the connection (if any) between happiness and virtue; the nature and limits of reason; the value of reason (understood as the rational pursuit of objective purpose) in a human life; the nature of the soul or self; and the question as to whether there is a difference between true and false pleasure, i.e., whether pleasure is the good. It is striking that while Socrates wants to contrast “rhetorical” speech-making with his own approach of philosophical dialogue,in practice the differences blur. Socrates too starts to speak at length, sounds rhetorical at times, and ends the discussion with a myth. Callicles advances a substantive position (grounded in a version of the distinction between nature and convention) and defends it. These transgressions of rhetorical genres to one side, from Socrates' standpoint the ultimate philosophical question at stake concerns how one should live one's life (500c). Is the life of “politics,” understood as the pursuit of power and glory, superior to the life of philosophy?

Readers of the dialogue will differ as to whether or not the arguments there offered decide the matter. The nub of the debate is as current today, both in academic and non-academic contexts, as it was in Plato's day.[25] Even though poetry is here cast as a species of rhetoric, a good deal of work would have to be done to show that the substantive theses to which poetry is committed, according to the Republic, are the same as the substantive theses to which rhetoric is committed, according to the Gorgias.

Is all of rhetoric bad? Are we to avoid — indeed, can we avoid — rhetoric altogether? Even in the Gorgias, as we have seen, there is a distinction between rhetoric that instills belief, and rhetoric that instills knowledge, and later in the dialogue a form of noble rhetoric is mentioned, though no examples of its practitioners can be found (503a-b). The Phaedrus offers a more detailed explanation of this distinction.

The text of Gorgias

POSTMODERN WARFARE: THE IGNORANCE OF OUR WARRIOR INTELLECTUALS
by and copyright by Stanley Fish

Who would have thought, in those first few minutes, hours, days, that what we now call 9/11 was to become an event in the Culture Wars? Today, more than nine months later, nothing could be clearer, though it was only on September 22 that the first sign appeared, in a New York Times opinion piece written by Edward Rothstein and entitled "Attacks on U.S. Challenge the Perspectives of Postmodern True Believers." A few days later (on September 27), Julia Keller wrote a smaller piece in the Chicago Tribune; her title (no doubt the contribution of a staffer): "After the attack, postmodernism loses its glib grip." In the September 24 issue of Time, Roger Rosenblatt announced "the end of the age of irony" and predicted that "the good folks in charge of America's intellectual life" would now have to change their tune and no longer say that "nothing was real" or that "nothing was to be believed in or taken seriously." And on October 1, John Leo, in a piece entitled "Campus hand-wringing is not a pretty sight," blamed just about everything on the "very dangerous ideas" that have captured our "campus culture"; to wit, "radical cultural relativism, non-judgmentalism, and a postmodern conviction that there are no moral norms or truths worth defending."

Well, that certainly sounds bad--no truths, no knowledge, no reality, no morality, no judgments, no objectivity--and if postmodernists are saying that, they are not so much dangerous as silly. Luckily, however, postmodernists say no such thing, and what they do say, if it is understood at all, is unlikely to provoke either the anger or the alarm of our modern Paul Reveres. A full account or even definition of postmodernism would be out of place here, but it may be enough for our purposes to look at one offered by Rothstein, who begins by saying that "Postmodernists challenge assertions that truth and ethical judgment have any objective validity." Well, it depends on what you mean by "objective." If you mean a standard of validity and value that is independent of any historically emergent and therefore revisable system of thought and practice, then it is true that many postmodernists would deny that any such standard is or could ever be available. But if by "objective" one means a standard of validity and value that is backed up by the tried-and-true procedures and protocols of a well-developed practice or discipline--history, physics, economics, psychology, etc.--then such standards are all around us, and we make use of them all the time without any metaphysical anxiety.

As Richard Rorty, one of Rothstein's targets, is fond of saying, "Objectivity is the kind of thing we do around here." Historians draw conclusions about the meaning of events, astronomers present models of planetary movements, psychologists offer accounts of the reading process, consumers make decisions about which product is best, parents choose schools for their children--all of these things and many more are done with varying degrees of confidence, and in no case is the confidence rooted in a conviction that the actor is in possession of some independent standard of objectivity. Rather, the actor, you or I or anyone, begins in some context of practice, with its received authorities, sacred texts, exemplary achievements, and generally accepted benchmarks, and from within the perspective of that context--thick, interpersonal, densely elaborated--judges something to be true or inaccurate, reasonable or irrational, and so on.

It seems, then, that the unavailability of absolutely objective standards--the thesis Rothstein finds repugnant and dangerous--doesn't take anything away from us. If, as postmodernists assert, objective standards of a publicly verifiable kind are unavailable, they are so only in the sense that they have always been unavailable (this is not, in other words, a condition postmodernism has caused), and we have always managed to get along without them, doing a great many things despite the fact that we might be unable to shore them up in accordance with the most rigorous philosophical demands. One of the things we might be doing, for instance, when we're not doing philosophy, is condemning someone or some group, though Rothstein seems to think that we can't do that unless we have all our philosophical ducks in a row--and in the right row. Thus, he says, given postmodernist assumptions, "one culture, particularly the West, cannot reliably condemn another," which means, according to him, that we in the United States cannot reliably condemn those who attacked the World Trade Center and the Pentagon. Again, it depends on what you mean by "reliably," a word that takes us right back to "objective" and to the argument I have been making. If by "a reliable condemnation" you mean a condemnation rooted in a strong sense of values, priorities, goals, and a conviction of right and wrong, then such a condemnation is available to most if not all of us all of the time. But if by "a reliable condemnation" you mean a condemnation rooted in values, priorities, and a sense of right and wrong that no one would dispute and everyone accepts, then there is no such condemnation, for the simple reason that there are no such universally accepted values, priorities, and moral convictions. If there were, there would be no deep disputes.

Now, I would not be misunderstood. I am not saying that there are no universal values or no truths independent of particular perspectives. I affirm both. When I offer a reading of a poem or pronounce on a case in First Amendment law, I do so with no epistemological reservations. I regard my reading as true--not provisionally true, or true for my reference group only, but true. I am as certain of that as I am of the fact that I may very well be unable to persuade others, no less educated or credentialed than I, of the truth so perspicuous to me. And here is a point that is often missed, the independence from each other, and therefore the compatibility, of two assertions thought to be contradictory when made by the same person: (1) I believe X to be true and (2) I believe that there is no mechanism, procedure, calculus, test, by which the truth of X can be necessarily demonstrated to any sane person who has come to a different conclusion (not that such a demonstration can never be successful, only that its success is contingent and not necessary). In order to assert something and mean it without qualification, I of course have to believe that it is true, but I don't have to believe that I could demonstrate its truth to all rational persons. The claim that something is universal and the acknowledgment that I couldn't necessarily prove it are logically independent of each other. The second does not undermine the first.

Once again, then, a postmodern argument turns out to be without any deleterious consequences (it is also without any positive consequences, but that is another story), and it certainly does not stand in the way of condemning those who have proven themselves to be our enemies in words and deeds. Nor should this be surprising, for, after all, postmodernism is a series of arguments, not away of life or a recipe for action. Your belief or disbelief in postmodern tenets is independent of your beliefs and commitments in any other area of your life. You may believe that objectivity of an absolute kind is possible or you may believe that it is not, but when you have to decide whether a particular thing is true or false, neither belief will hinder or help you. What will help you are archives, exemplary achievements, revered authorities, official bodies of evidence, relevant analogies, suggestive metaphors--all available to all persons independently of their philosophical convictions, or of the fact that they do or do not have any.

In the end, the post-9/11 flap about postmodernism is the blowing of so much smoke, sound and fury signifying very little apart from the ignorance of those who produced it. There's no there there. This is not true, however, of what succeeded that flap in the popular and semi-popular media, the question of whether this is or is not a religious war. That question was asked against the backdrop of the Bush Administration's desire that the war not be characterized as a religious one. Any public embrace of Samuel Huntington's clash-of-civilizations thesis would have at least three bad consequences. First, key Islamic nations could not be persuaded to support, or at least to refrain from denouncing, U.S. military operations. Second, millions of U.S. citizens of the Islamic faith would be come the large core of an antiwar coalition. And lastly, the United Nations would become polarized along religious lines, with the possible result that any U.S. attack would be censured. In the context of these and related anxieties, the official party line emerged almost immediately: Although Al Qaeda said that its warriors did what they did in the service of Allah, theirs was a perverted version of the Islamic faith, and therefore their claim to be acting in its name was false and illegitimate; they simply did not represent Islam and had misread its sacred texts.

If you think about it for a moment, this is an amazing line of argument that begs the questions contained in its assertions. Who is it that is authorized to determine which version of Islam is the true one? What religious faith has ever looked outside the articles of its creed for guidance and correction? What is the difference between the confident pronouncements that the Al Qaeda brand of Islam is a deviant one and the excommunications and counter-excommunications of Catholics and Protestants, and within Protestantism of Baptists, Anglicans, Lutherans, not to mention Jehovah's Witnesses, Seventh-Day Adventists, Mormons, and Mennonites? Merely to pose these questions is to realize that the specification of what a religion is and the identification of the actions that may or may not be taken in its name are entirely internal matters. This is, after all, the point of a religion: to follow a vision the source of which is revelation, ecclesiastical authority, a sacred book, a revered person. One who adheres to that vision does not accept descriptions or evaluations of it from non-adherents citing other revelations, authorities, and texts; and the fact that non-adherents regard some of the convictions at the heart of the vision as bizarre, and regard the actions generated by those convictions as inadvisable or even evil, is merely confirmation, again from the inside, of the extent to which these poor lost souls are in the grip of error and too blind to see. What this means (and here we link up with the worries over postmodernism) is that in matters of religion--and I would say in any matter--there is no public space, complete with definitions, standards, norms, criteria, etc., to which one can have recourse in order to separate out the true from the false, the revolutionary from the criminal. And what that means is that there is no common ground, at least no common ground on which a partisan flag has not already been planted, that would allow someone or some body to render an independent judgment on the legitimacy of the declarations that issue from Bin Laden and his followers about the religious bases of their actions.

Indeed, only if there were such a public space or common ground could the question "Is this a religious war?" be a real question, as opposed to a tendentious thesis pretending to be a question, which it is. That is to say, the question "Is this a religious war?" is not a question about the war; it is the question that is the war. For the question makes assumptions Al Qaeda members are bound to reject and indeed are warring against: that it is possible to distinguish between religious and non-religious acts from a perspective uninflected by any religion or ideology; or, to put it another way, that there is a perspective detached from and above all religions, from the vantage point of which objective judgments about what is and is not properly religious could be handed down; or that it is possible to distinguish between the obligations one takes on as a person of faith and the obligations one takes on in one's capacity as a citizen; i.e., that it is possible to go out into the world and perform actions that are not related, either positively or negatively, to your religious convictions. And these assumptions make sense only in the context of another: that religion is essentially a private transaction between you and your God and therefore is, at least in principle, independent of your actions in the public sphere, where the imperatives you follow might be political, economic, philanthropic, environmental--imperatives that could be affirmed or rejected by persons independently of their religious convictions or of their lack of religious convictions.

What I have rehearsed for you, in a nutshell, is the core of what has been called America's "Civic Religion," a faith (if that is the word) founded on the twin rocks of Locke's declaration that "the business of laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth" and Jefferson's more colloquial version of the same point: "It does me no injury for my neighbor to say that there are twenty Gods or no Gods; it neither picks my pocket nor breaks my leg." Jefferson's further contribution is the famous "Wall of Separation," a metaphor that has lent constitutional force to the separation of church and state, even though it is not in the Constitution. In combination, these now canonical statements give us the key distinction between the private and the public, which in turn gives us the American creed of tolerance. It goes like this: If you leave me free to believe whatever I like, I'll leave you free to believe whatever you like, even though in our respective hearts we regard each other's beliefs as false and ungodly. We can argue about it or privately condemn each other, but our differences of belief shouldn't mean that we try to disenfranchise or imprison or kill each other or refrain from entering into relationships of commercial and social cooperation. Let's live and let live. Let's obey the civil, nonsectarian laws and leave the sorting out of big theological questions to God and eternity.

All of that is precisely what adherents of the Al Qaeda version of Islam hate and categorically deny, which is why the question "Is this a religious war?" will make no sense to them, or, rather, will make only the sense of a question issuing from an infidel who is by definition wrong and an enemy. Not only do Bin Laden and company fail to make the distinction between religious and civil acts; they regard those who do make it as persons without a true religion. If you're really religious, you're religious all the time, and no act you perform--even the act of having or not having a beard--is without religious significance and justification. It is the dividing of one's life into the separate realms of the public and private that leads, say the militants, to a society bereft of a moral center and populated by citizens incapable of resisting the siren call of excess and sin.

This refusal of Al Qaeda-style Islam to honor the public/private distinction is the essence of that faith, and not some incidental feature of it that can be dispensed with or moderated. Commentators who pronounced on the question "Is this a religious war?" tended to see this and not see it at the same time. They noted the fact but then contrived to turn it into a correctable mistake, either by using words like "criminal," "fanatic," and "extremist" or by implying that the non-emergence of the public/private distinction is some kind of evolutionary failure; they want to be like us, but they don't yet know how to do it. Thus R. Scott Appleby, a professor at Notre Dame and an expert on religion and violence, notes (in the November 2001 issue of Lingua Franca), with an apparently straight face, that "Islam has been remarkably resistant to the differentiation and privatization of religion that often accompanies secularization ... and has not undergone a reformation like the one experienced by Christianity, which led to a pronounced separation of sacred and secular." ("What's the matter with these guys? Why can't they get with the program?") But of course there is nothing remarkable in a faith's refusal of a transformation that would undo it. Privatization and secularization are not goals that Islam has yet to achieve; they are specters that Islam (or some versions of it) pushes away as one would push away death.

Appleby's characterization of Islam as a religion stuck in some stage of arrested development and self-blocked from reaching maturity is matched by Andrew Sullivan's condescending description of Islam (in the October 7 issue of The New York Times Magazine) as "a great religion that is nonetheless extremely inexperienced in the toleration of other ascendant and more powerful faiths." Presumably, a good dose of John Stuart Mill or John Rawls would do the trick and move Islam along on the way to health and modernization.

When Sullivan says of Islam that it is "a great religion," he means a potentially great religion. Islam will be fine when it rids itself of its impurities, the chief impurity being a stubborn insistence on a fidelity to a set of particular beliefs. In the morality Sullivan shares with Appleby, particularity is a sin, because it sets up barriers between persons devoted to different particulars. The better way is the way of generality, of a religious sense so large and capacious that anything and everything can be accommodated within it. The only problem with such a religion would be its total lack of content, but as it turns out that is just what Appleby, Sullivan, and company really want. It is instructive to watch them as they take the heart out of religion in the name of religion--or, as they put it, "true religion." Of course you can't have a true religion without a false religion. A false religion, Jane Eisner tells us in the Philadelphia Inquirer of October 14, is a religion that has "failed to master modernity," and the sign of this failure is its insistence on a single creed in an age of pluralism. The true religion is what Eisner calls "the American national religion," which she describes as "our nonsectarian belief in the freedom of the individual to think, speak, and act in his or her best interests." Here Eisner is either disingenuous or unaware of the implications of her own language. By nonsectarian belief she would seem to mean, and probably thinks she means, belief not limited to any particular religious denomination; but what the phrase really means in the context of her essay is a belief in the evil of any sectarian belief whatsoever, of any belief that asserts itself strongly and is jealous of its priority. She is not, as she would have it, defending all beliefs against an intolerant exclusionism but attacking belief in general, at least as it commits you to the truth of a conviction or the imperative of an action. The only good belief is the belief you can wear lightly and shrug off when you leave home and stride into the public sphere.

This is surely what Sullivan means (whether he knows it or not) when he declares that this "is a war of fundamentalism against faiths of all kinds that are at peace with freedom and modernity." A faith at peace with freedom and modernity is a faith that has given up its franchise and has made itself into something occasional and cosmetic. It is only in the name of such a faith--emptied of all content and committing you to nothing but the gospel of non-commitment--that Sullivan can say, again with a straight face, that by denying "the ultimate claims of religion" we "preserve true religion itself"; that is, we preserve this vague, nonbinding, light-as-air spirituality, the chief characteristic of which is that it claims--and believes--nothing.

Although it may not at first be obvious, the substitution for real religions of a religion drained of particulars is of a piece with the desire to exorcise postmodernism. In both instances, what is feared is the absence of a public space or common ground in relation to which judgments and determinations of value can be made with no reference to the religious, ethnic, racial, or national identities of the persons to whom they apply. It should, to Sullivan's way of thinking, be obvious to all, including those Muslims not blinded by fanaticism, that Bin Laden and his followers are criminal terrorists and not religious freedom fighters; and if they quote the Koran at us and rehearse histories in which we are the oppressors and villains, that just means that they are misreading their own scripture and distorting their own history, and we have the experts at Johns Hopkins, George Washington, and Yale universities to prove it. This can't be a religious war. It must be a war of common sense or common ground against the fanatical and the irrational.

What must be protected, then, is the general, the possibility of making pronouncements from a perspective at once detached from and superior to the sectarian perspectives of particular national interests, ethnic concerns, and religious obligations; and the threat to the general is posed by postmodernism and strong religiosity alike, postmodernism because its critique of master narratives deprives us of a mechanism for determining which of two or more fiercely held beliefs is true (which is not to deny the category of true belief, just the possibility of identifying it uncontroversially), strong religiosity because it insists on its own norms and refuses correction from the outside. The antidote to both is the separation of the private from the public, the establishing of a public sphere to which all could have recourse and to the judgments of which all, who are not criminal or insane, would assent. The point of the public sphere is obvious: it is supposed to be the location of those standards and measures that belong to no one but apply to everyone. It is to be the location of the universal. The problem is not that there is no universal--the universal, the absolutely true, exists, and I know what it is. The problem is that you know, too, and that we know different things, which puts us right back where we were a few sentences ago, armed with universal judgments that are irreconcilable, all dressed up and nowhere to go for an authoritative adjudication.

What to do? Well, you do the only thing you can do, the only honest thing: you assert that your universal is the true one, even though your adversaries clearly do not accept it, and you do not attribute their recalcitrance to insanity or mere criminality--the desired public categories of condemnation--but to the fact, regrettable as it may be, that they are in the grip of a set of beliefs that is false. And there you have to leave it, because the next step, the step of proving the falseness of their beliefs to everyone, including those in their grip, is not a step available to us as finite situated human beings. We have to live with the knowledge of two things: that we are absolutely right and that there is no generally accepted measure by which our rightness can be independently validated. That's just the way it is, and we should just get on with it, acting in accordance with our true beliefs (what else could we do?) without expecting that some God will descend, like the duck in the old Groucho Marx TV show, and tell us that we have uttered the true and secret word.

The distinction I am trying to make here is not between affirming universals and denying them but between affirming universals because you strongly believe them to be such and affirming universals because you believe them to have been certified by an independent authority acknowledged by everyone. Andrew Sullivan teeters between these different affirmations when he declares in the concluding paragraph of his essay that "We are fighting not for our country ... or for our flag. We are fighting for the universal principles of our Constitution." Is Sullivan here identifying and standing by his conviction of what the universal principles are, or is he claiming that it is not his conviction but the world itself that has identified them? If he is doing the first, he is acknowledging that this is a religious war and that it is our religion (embodied, he thinks, in the Constitution) against theirs, not their religion against common sense. If he is doing the second, he is saying that this is a war between the world's religions and those crazy outlaws the world universally condemns. His penultimate sentence removes the doubt: "We are fighting for religion against one of the deepest strains in religion there is." The deepest strain in a religion is the particular and particularistic doctrine it asserts at its heart, in the company of such pronouncements as "Thou shalt have no other Gods before me." Take the deepest strain of religion away, as Sullivan wants us to do, and what remains are the surface pieties--abstractions without substantive bite--to which everyone will assent because they are empty, insipid, and safe.

It is this same preference for the vacuously general over the disturbingly particular that informs the attacks on college and university professors who spoke out in ways that led them to be branded as outcasts by those who were patrolling and monitoring the narrow boundaries of acceptable speech. Here one must be careful, for there are fools and knaves on all sides. On the fool side, there is the case of Richard Berthold, the hapless University of New Mexico professor of history who said in class, on September 11, "Anyone who can blow up the Pentagon has my vote"--and then in the wake of the subsequent protest acknowledged that he had been a jerk to say it, but, after all, "the First Amendment protects my right to be a jerk." Well, yes and no; the First Amendment does protect him from prosecution by the government--unless his form of jerkiness could be characterized as libel, incitement to violence, or treason--but it does not necessarily protect him from disciplinary action by his university if it can be determined that what he said amounted to using class time and state dollars to propagate his own political views and thereby undermined his ability to fulfill his appointed duties.

On the knave side, there is the politically murky but conceptually clear case of Sami Al-Arian, a professor of computer engineering at the University of South Florida, who has been sent a letter of dismissal because he appeared on The O'Reilly Factor, a crime of which I am also guilty. The university says that he is being dismissed not because of the views he expressed over a decade ago but because the public airing of them produced a hostile response that took the form of threats from individuals, potential donors, politicians, and trustees; but this is what is known as the "heckler's veto" argument--speech is to be silenced or punished because of the actual or potential hostile response to it--an argument rejected by a long line of Supreme Court decisions and almost certain to be rejected again.

Closer to my home, the University of Illinois at Chicago and Northwestern University have been more adept than South Florida in dealing with the cases of Bill Ayers and Bernadine Dohrn--one-time Weathermen, fugitives, and most-wanted celebrities, and now married, middle-class, and distinguished professors--who are under fire for actions performed thirty years ago and no longer the object of judicial attention. As both universities saw, the only question is whether Ayers and Dohrn are currently living up to their contractual duties and doing their jobs; and since the evidence says clearly that they are, there is no case. Contrition for acts long past and not presently under indictment is not a legal or even a moral requirement for university teaching.

It would be pleasant to linger over these and other cases and tease out the doctrines they illustrate, but what finally interests me about them is their link to the pattern I have been describing, the pattern of demonizing the particularism of local and partisan perspectives (either philosophical or religious) in favor of a general perspective that claims to be universal and has the advantage of disturbing no one because it is at once safe and empty. The effort of those who would silence or dismiss professors who cross some invisible line is at bottom an effort to narrow the range of what can be said to a rote patriotic discourse that is a form of cheerleading rather than serious thought. This is in fact the naked thesis of Why We Fight: Moral Clarity and the War on Terrorism by former secretary of education--and author, at least by his own claim, of all the Virtues--William Bennett. In this book we learn that the problems not only of the current moment but of the last forty years stem from the cultural ascendancy of those "who are unpatriotic" but who, unfortunately, are also "the most influential among us." The phrase "among us" is a nice illustration of the double game Bennett plays throughout the book. On one reading, "the diversity mongers [and] multiculturalists," mistaken though they may be in their views, are part of "us"; that is, they are citizens, contributing to a national dialogue in ways that might provoke Bennett's disagreement but contributing nevertheless in the spirit of deliberative democracy. On another reading, however, these cultural relativists are "among us" as a fifth column might be among us, servants of an alien power who prosecute their subversive agenda under the false colors of citizenship. That the second is the reading Bennett finally intends (though he wants to get moral credit for the first) is made clear when he charges these peddlers of "relativism" with unpatriotism, and in that instant defines a patriot as someone who has the same views he has.

This also turns out to be Bennett's definition of honesty and truth-telling. As the remedy for what he and his allies see as the moral enervation of the country, Bennett urges "the reinstatement of a thorough and honest study of our history," where by "honest" he means a study of history that tells the same story he and his friends would tell if they were in control of the nation's history departments. Unfortunately (at least as he sees it), history departments are full of people like Columbia's Eric Foner, who draws Bennett's ire for wondering which is worse, "`the horror that engulfed New York City or the apocalyptic rhetoric emanating daily from the White House.'" Bennett calls this sentiment "atrocious rot." Maybe it is, maybe it isn't, but even if it were atrocious rot, it could be honest atrocious rot; that is, it could be Foner's honest attempt, as a citizen and historian, to take the truthful measure of what the events of September 11 and their aftermath mean. But Bennett's epistemology does not allow for the possibility that someone could honestly put forward as the truth of a matter an account that differed from his. If Foner and all the other "Foners of the United States" say things about American history that do not square with the things Bennett and Donald Kagan (his hero-historian) say, it must be because they are self-conscious enemies of the good and the true. They are not merely mistaken (which is how we usually characterize those on the opposite side of us in what John Milton called the "wars of truth"); they are "insidious," they are engaged in "violent misrepresentation," they practice "distortion," they "sow widespread and debilitating confusion," they "weaken the country's resolve," they exhibit "failures of character," they drown out "legitimate patriots" (guess who), they display a "despicable nature," they abandon, yes, "the honest search for truth."

This long list of hit-and-run accusations is justified in Bennett's eyes because the persons at whom it is directed would give different answers than he would to questions still being honestly debated after these many months. It is one thing to believe, and believe fervently, that someone has got something wrong; it is quite another to believe that the someone you think to be wrong is by virtue of that error unpatriotic, devoted to lies, and downright evil. It has often been the case that religions have identified sacred texts and sacred persons as the repositories of wisdom and truth and have consigned to the deepest circles of hell persons who read from another book or assert truths contrary to those declared necessary for salvation. But I did not know that there was now a Book of Bennett, and that the teachers and intellectuals who inhabit our universities were obliged to rehearse its lessons and recite its catechisms, lest they be drummed out of the Republic and cast into outer darkness. Live and learn.

There is a tension in Bennett's book--one common to jeremiads on the right--between his frequent assertions that our cultural condition couldn't be worse and his equally frequent assertions that the vast majority of Americans thinks as he does. How can the enemy at once be so small in number and so disastrously effective? The answer is to be found in the fact that this small band controls our colleges and universities, and the result is the "utter failure of our institutions of higher learning," a failure the product of which is a generation of college students ignorant of our history and imbued with the virus of "cultural and moral relativism." What to do? One proposal put forward by some of Bennett's allies--and a surprising one given the free-market propensities of this crowd--amounts to affirmative action for conservatives. If the professoriate is predominantly liberal, let's do something about it and redress the imbalance. (Does this sound like multiculturalism and diversity?) David Horowitz--once a virulent left-wing editor of Ramparts and now a virulent right-wing editor of Heterodoxy--complains, for example, that there are "whole departments in the social sciences where there are no conservatives," despite the fact that "the point of a university is that it should be a place of dialogue" (as long, presumably, as it is not a dialogue about this war, in which case what we want is uniformity of opinion, one-sided opinion). But if the university is a place of dialogue (and I certainly think it is) it is supposed to be a dialogue between persons of differing views on disciplinary issues--Is Satan the hero of Paradise Lost? Is there such a thing as Universal Grammar? What historical factors led to the Reform Bill of 18327 Could World War I have been avoided?--and not a dialogue between persons who identify themselves as Democrats or Republicans. That dialogue takes place in the arenas of elections, lobbying, and political fund-raising, and while there may be some overlap between academic disagreements and disagreements in the realm of partisan politics, the overlap is not structural, even if it is statistically significant; moreover, altering it is not an academic imperative, because it is not the business of the academy to assure proportional representation of different political positions.

But what about affirmative action? someone might ask. By this argument, it isn't the business of the academy to assure proportional representation of women, blacks, and Hispanics either. No disciplinary concern demands such a correction, so what's the difference?

The difference is an historical one. For decades and indeed centuries, women, blacks, and Hispanics have been actively excluded from the academy, and while one might debate whether or not universities have an obligation to redress past inequities, the effort to do so can be given at least a plausible historical justification. No such justification is available to support affirmative action for conservatives, who have never been excluded, and in fact were once greatly in the ascendancy, and who are no longer in the ascendancy in some disciplines because they have chosen to go into others. It would be interesting to study why humanities departments do not by and large attract the politically conservative, but I would bet that such a study would not reveal that they have been denied entry or badly treated when they have attained it. The case for bringing more conservatives into the humanities and social sciences is a nonstarter.

The second, and related, argument invoked to justify the current spate of professor-bashing has a bit more going for it, as evidenced by the fact that it has been made across the political spectrum, from Stanley Kurtz, a contributing editor for the National Review, to David Glenn, writing in The Nation. It is the argument that the professoriate is reaping what it sowed in those years when so many of its members (including, no doubt, some now facing criticism and discipline) worked for the implementation of campus speech codes. The chickens are just coming home to roost. (Exactly the line of thought so vehemently rejected by the gatekeepers of our patriotism.)

Aside from a certain historical inaccuracy--most speech codes were never implemented, and none has survived judicial scrutiny--the logic deployed by Kurtz and Glenn is flawed in what should now be seen as a familiar way: it depends on a general equivalence that takes no notice of the relevant historical differences. The equivalence is supposed to be between disciplining and/or stigmatizing persons because they have produced speech hurtful to women, blacks, Hispanics, and gays, and disciplining and/or stigmatizing persons because they have produced speech deemed to be politically inappropriate. If you were for the first kind of regulation, the logic goes--i.e., if you supported speech codes--you have no complaint when you become the object of the second. But this works only if one assumes that all restrictions on expression have the same status (a universalizing, flattening assumption that generated the category of reverse racism), and that assumption runs up against the tradition of the First Amendment, in which one restriction--the restriction on speech critical of government policies--has always been regarded as a violation of the amendment's core.

What this means is that restraints on political speech and restraints on what has been called hate speech are simply not the same thing--one restraint nullifies the First Amendment at its heart, while the other is arguably faithful to its spirit, though the point is contested--and are not interchangeable as pieces of cultural currency. The real equivalent to hate-speech restriction would have to be a restriction on a form of speech that, like hate speech, has a disputed constitutional status. So if a professor were for speech codes but against restrictions on pornography, he might be asked to address what would seem to be a contradiction. But there is no contradiction in being against restrictions on speech critical of the government and in favor of restrictions on pornography, because speech critical of the government stands alone as indisputably protected and therefore cannot be in a relation of equivalence to speech of any other kind. No matter what those professors thought or didn't think about speech codes, their right to be critical of their government remains their undoubted possession. That is what the Constitution says and has always said.

A summary, then, and a scorecard: Is postmodernism either dead or one of the causes of our present distress? No. Is this a religious war? You bet. Are professors as a class unpatriotic and thus deserving of the condemnation William Bennett and so many others rain down on them for the crime of saying things these pundits don't like? No again. Can the complex reality of particular situations be captured by the abstract vocabulary of so-called universals? No, in thunder.

DUELING PENS: A FRIENDLY EXCHANGE ABOUT UNFRIENDLY WORDS
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
exist.

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
behavior.

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.

"THERE IS NO SUCH THING AS FREE SPEECH": AN INTERVIEW WITH STANLEY FISH
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.

CONDEMNATION WITHOUT ABSOLUTES
by and copyright by Stanley Fish

CHICAGO -- During the interval between the terrorist attacks and the United States response, a reporter called to ask me if the events of Sept. 11 meant the end of postmodernist relativism. It seemed bizarre that events so serious would be linked causally with a rarefied form of academic talk. But in the days that followed, a growing number of commentators played serious variations on the same theme: that the ideas foisted upon us by postmodern intellectuals have weakened the country's resolve. The problem, according to the critics, is that since postmodernists deny the possibility of describing matters of fact objectively, they leave us with no firm basis for either condemning the terrorist attacks or fighting back.

Not so. Postmodernism maintains only that there can be no independent standard for determining which of many rival interpretations of an event is the true one. The only thing postmodern thought argues against is the hope of justifying our response to the attacks in universal terms that would be persuasive to everyone, including our enemies. Invoking the abstract notions of justice and truth to support our cause wouldn't be effective anyway because our adversaries lay claim to the same language. (No one declares himself to be an apostle of injustice.)

Instead, we can and should invoke the particular lived values that unite us and inform the institutions we cherish and wish to defend.

At times like these, the nation rightly falls back on the record of aspiration and accomplishment that makes up our collective understanding of what we live for. That understanding is sufficient, and far from undermining its sufficiency, postmodern thought tells us that we have grounds enough for action and justified condemnation in the democratic ideals we embrace, without grasping for the empty rhetoric of universal absolutes to which all subscribe but which all define differently.

But of course it's not really postmodernism that people are bothered by. It's the idea that our adversaries have emerged not from some primordial darkness, but from a history that has equipped them with reasons and motives and even with a perverted version of some virtues. Bill Maher, Dinesh D'Souza and Susan Sontag have gotten into trouble by pointing out that "cowardly" is not the word to describe men who sacrifice themselves for a cause they believe in.

Ms. Sontag grants them courage, which she is careful to say is a "morally neutral" term, a quality someone can display in the performance of a bad act. (Milton's Satan is the best literary example.) You don't condone that act because you describe it accurately. In fact, you put yourself in a better position to respond to it by taking its true measure. Making the enemy smaller than he is blinds us to the danger he presents and gives him the advantage that comes along with having been underestimated.

That is why what Edward Said has called "false universals" should be rejected: they stand in the way of useful thinking. How many times have we heard these new mantras: "We have seen the face of evil"; "these are irrational madmen"; "we are at war against international terrorism." Each is at once inaccurate and unhelpful. We have not seen the face of evil; we have seen the face of an enemy who comes at us with a full roster of grievances, goals and strategies. If we reduce that enemy to "evil," we conjure up a shape- shifting demon, a wild-card moral anarchist beyond our comprehension and therefore beyond the reach of any counterstrategies.

The same reduction occurs when we imagine the enemy as "irrational." Irrational actors are by definition without rhyme or reason, and there's no point in reasoning about them on the way to fighting them. The better course is to think of these men as bearers of a rationality we reject because its goal is our destruction. If we take the trouble to understand that rationality, we might have a better chance of figuring out what its adherents will do next and preventing it.

And "international terrorism" does not adequately describe what we are up against. Terrorism is the name of a style of warfare in service of a cause. It is the cause, and the passions informing it, that confront us. Focusing on something called international terrorism — detached from any specific purposeful agenda — only confuses matters. This should have been evident when President Vladimir Putin of Russia insisted that any war against international terrorism must have as one of its objectives victory against the rebels in Chechnya.

When Reuters decided to be careful about using the word "terrorism" because, according to its news director, one man's terrorist is another man's freedom fighter, Martin Kaplan, associate dean of the Annenberg School for Communication at the University of Southern California, castigated what he saw as one more instance of cultural relativism. But Reuters is simply recognizing how unhelpful the word is, because it prevents us from making distinctions that would allow us to get a better picture of where we are and what we might do. If you think of yourself as the target of terrorism with a capital T, your opponent is everywhere and nowhere. But if you think of yourself as the target of a terrorist who comes from somewhere, even if he operates internationally, you can at least try to anticipate his future assaults.

Is this the end of relativism? If by relativism one means a cast of mind that renders you unable to prefer your own convictions to those of your adversary, then relativism could hardly end because it never began. Our convictions are by definition preferred; that's what makes them our convictions. Relativizing them is neither an option nor a danger.

But if by relativism one means the practice of putting yourself in your adversary's shoes, not in order to wear them as your own but in order to have some understanding (far short of approval) of why someone else might want to wear them, then relativism will not and should not end, because it is simply another name for serious thought.

HOW THE RIGHT HIJACKED THE MAGIC WORDS
by and copyright by Stanley Fish

DURHAM. N.C. When the verdict in the first Rodney King beating trial was announced many were amazed at the acquittal of the police officers, especially since their actions had been filmed by an amateur photographer. How could a jury ignore the evidence of its own eyes? A part of the answer emerged in the account of the defense strategy. It had two stages. First, the film was slowed down so that each frame was isolated and stood by itself. Second, the defense asked questions that treated each frozen frame as if everything in the case hung on it and it alone. Is this blow an instance of excessive force? Is this blow intended to kill or maim?

Under the pressure of such questions, the event as a whole disappeared from view and was replaced by a series of discontinuous moments. Looking only at individual moments cut off from the context that gave them meaning, the jury could not say of any of them that this did grievous harm to Rodney King. This strategy - of first segmenting reality and then placing all the weight on individual bits of it - is useful whenever you want to deflect attention away from the big picture, and that is why it has proved so attractive to those conservative Republicans who want to roll back the regulatory state. On every front, from environmental protection to affirmative action, large questions of ecology and justice are pushed into the background by the same segmenting techniques that made it easy for the jurors in Simi Valley to forget it was a beating they were seeing.

As examples, consider two cases recently decided by the Supreme Court. In Babbitt v. Sweet Home, the question was whether an E.P.A. regulation against "taking" an endangered species includes acts of "habitat modification" or whether words like "take" and "harm" refer narrowly to single assaults on single animals by single hunters.

Those taking the broader view agree that when you destroy the last remaining ground on which the piping plover breeds, you make it "impossible for any piping plovers to reproduce." Those on the other side, the side of developers and logging interests, reply that no single plover will have been targeted and no living plover injured.

"Taking," they insist, describes only "acts done directly and intentionally to particular animals." One side recognizes indirect effects caused by large-scale patterns of action taking place over time. The other side recognizes only effects caused in a particular moment by the intentional behavior of individuals. Beginning from these two perspectives - not on the issue, but determinative of the way the issue will be framed and seen -- the two sides come to predictably opposing conclusions.

Just about everything remains the same when the topic is affirmative action. In Adarand v, Pena, the question was whether the policy of giving financial incentives to prime contractors who hire minority subcontractors is constitutional. Those in favor of the incentives justify them by invoking constitutional history and the history of discrimination in the contracting industry. They remind us, in Justice John Paul Stevens words, that the "primary purpose of the Equal Protection Clause to end discrimination of the former slaves," and they report that even today certain groups remain entrenched in the building trades while ethers are virtually shut out.

Those opposed to the incentives reject arguments from history and specifically reject the argument that historical patterns of discrimination have impaired the life chances of African-Americans as a group. They say it is individuals, not groups, that are protected by the Constitution, and they would allow remedies for discrimination only in cases where there has been "an individualized showing" of harm, a harm inflicted discreetly on a specific person by a specific agent at a specific time.

The idea is that even though different histories may have brought us here, we are new all Individuals who enter life's race with equal opportunities and therefore any injury we suffer (at least if the law is going to recognize it) is injury done to us by an individual and not by impersonal forces either in the past or present. Harm in this model can only be imagined as a discrete event: you hit me over the head with a baseball bat. No Rube Goldberg accounts of cause and effect allowed.

The Rodney King beating, endangered species, affirmative action - - three very different issues, but all subject to the same analysis which reaches the same conclusion: either a particular person at a particular moment did it or no one did it. Blows can only kill one by one, and not in relation to other blows in a sequence. Birds can only he taken one by one and not by the destruction of the environment essential to their survival. Persons can only be discriminated against one by one, and not by the massive effects of longstanding structural racism.

One more example to clinch the point. In the first aftermath of the Oklahoma bombing, rumors of an Arab suspect were followed by the usual mutterings about an Islamic terrorist culture, but when Timothy McVeigh surfaced, talk of holding culture responsible was strongly denounced by the very same people engaging in it because the culture now under the spotlight was their own.

Immediately Mr. McVeigh was detached from everything and everyone around him and proclaimed to be "merely an individual", and more pointedly, an individual "kook," someone acting out of some inner and private compulsion and not in response to the values and goals of any group.

He may have worn the same clothes as those other guys, and held the same views, and listened to the same radio stations, and read or wrote the same anti-government pamphlets, and marched in the same woods with the same guns, but what he did (if he did it) he did entirely on his own, uninfluenced by anyone or anything. Just as we are to believe that Rodney King received each blow in isolation, and the piping plover experienced no harm when its habitat was degraded, and minority subcontractors suffered no disadvantage by centuries of exclusion from the trades they were now "free" to enter.

The question is, why do arguments like these often have so much force? At first glance it seems odd, Even bizarre, to discount the cumulative effects of many blows, or to deny that habitat degradation constitutes a harm to individual birds, or to announce that massive patterns of societal discrimination leave minorities in the same position as everyone else, or to decide that white Timothy McVeigh talks like a militia member, walks like a militia member, thinks likes militia member and hates like a militia member, what he does has nothing to do with the militia culture.

How is the trick done? Well, first of all by a sleight of hand. The eye is deflected away from the whole -- history, culture, habitats, society and the parts, now freed from any stabilizing context, can be described in any way one likes - but why is the sleight of hand successful? Why don't more people see through it?

Because it is performed with the vocabulary of America's civil religion - the vocabulary of equal opportunity, color-blindness, race neutrality and, above all, individual rights. This was also the vocabulary of civil rights activists, anti-McCarthyites and liberals in general, many of them are now puzzled and even defensive when they hear their own words coming out of the mouths of their traditional opponents.

Their mistake is to assume that the words mean what they did in 1960, when in fact they have been repackaged and put in the service of the very agenda they once fought, When the goal was to end Jim Crow practices that kept blacks in the back of the bus and out of schools, "individual rights" was a powerful slogan in support of change. But now "individual rights" operates to maintain the status quo by ruling out as a consideration the very history that made the phrase a rallying cry in the first place.

When the goal was to make discrimination illegal, "color-blind" meant removing the obstacles to full citizenship, but "color-blind" now means blind to the effects of what has been done in the past to people because of their color, When the goal was to provide access to those long denied it, "equal opportunity" was a weapon against old habits and vested interests, but new those same interests have learned how to say "equal opportunity" and mean maintenance of all conditions that still make it a myth.

Liberals and progressives have been slow to realize that their preferred vocabulary has been hijacked and that when they respond to once-hallowed phrases they are responding to a ghost now animated by a new machine, The point is not a small one, for in any debate, especially one fought in the arena of public opinion, the battle is won not by knock-down arguments but by the party that succeeds in placing its own spin on the terms presiding over the discussion.

That's what the conservatives in and out of Congress have managed to do with old war horses like "individual" and so long as they are allowed to get away with it, the opposition will spend its time insisting that it too is for the individual or for color-blindness or equal opportunity - and before we know it all the plovers will be dead and all the subcontractors will once again be white.