There's No Such Thing As Free Speech: And It's a Good Thing, Too

by Stanley Fish

In an era when much of what passes for debate is merely moral posturing--traditional family values versus the cultural elite, free speech versus censorship--or reflexive name-calling--the terms "liberal" and "politically correct," are used with as much dismissive scorn by the right as "reactionary" and "fascist" are by the left--Stanley Fish would seem an unlikely lightning rod for controversy. A renowned scholar of Milton, head of the English Department of Duke University, Fish has emerged as a brilliantly original critic of the culture at large, praised and pilloried as a vigorous debunker of the pieties of both the left and right. His mission is not to win the cultural wars that preoccupy the nation's attention, but rather to redefine the terms of battle.
In There's No Such Thing as Free Speech , Fish takes aim at the ideological gridlock paralyzing academic and political exchange in the nineties. In his witty, accessible dissections of the swirling controversies over multiculturalism, affirmative action, canon revision, hate speech, and legal reform, he neatly eviscerates both the conservatives' claim to possession of timeless, transcendent values (the timeless transcendence of which they themselves have conveniently identified), and the intellectual left's icons of equality, tolerance, and non-discrimination. He argues that while conservative ideologues and liberal stalwarts might disagree vehemently on what is essential to a culture, or to a curriculum, both mistakenly believe that what is essential can be identified apart from the accidental circumstances (of time and history) to which the essential is ritually opposed.
In the book's first section, which includes the five essays written for Fish's celebrated debates with Dinesh D'Souza (the author and former Reagan White House policy analyst), Fish turns his attention to the neoconservative backlash. In his introduction, Fish writes, "Terms that come to us wearing the label 'apolitical'--'common values', 'fairness', 'merit', 'color blind', 'free speech', 'reason'--are in fact the ideologically charged constructions of a decidedly political agenda. I make the point not in order to level an accusation, but to remove the sting of accusation from the world 'politics' and redefine it as a synonym for what everyone inevitably does." Fish maintains that the debate over political correctness is an artificial one, because it is simply not possible for any party or individual to occupy a position above or beyond politics. Regarding the controversy over the revision of the college curriculum, Fish argues that the point is not to try to insist that inclusion of
ethnic and gender studies is not a political decision, but "to point out that any alternative curriculum--say a diet of exclusively Western or European texts--would be no less politically invested."
In Part Two, Fish follows the implications of his arguments to a surprising rejection of the optimistic claims of the intellectual left that awareness of the historical roots of our beliefs and biases can allow us, as individuals or as a society, to escape or transcend them. Specifically, he turns to the movement for reform of legal studies, and insists that a dream of a legal culture in which no one's values are slighted or declared peripheral can no more be realized than the dream of a concept of fairness that answers to everyone's notions of equality and jsutice, or a yardstick of merit that is true to everyone's notions of worth and substance. Similarly, he argues that attempts to politicize the study of literature are ultimately misguided, because recharacterizations of literary works have absolutely no impact on the mainstream of political life. He concludes his critique of the academy with "The Unbearable Ugliness of Volvos," an extraordinary look at some of the more puzzing,
if not out-and-out masochistic, characteristics of a life in academia.
Penetrating, fearless, and brilliantly argued, There's No Such Thing as Free Speech captures the essential Fish. It is must reading for anyone who cares about the outcome of America's cultural wars.

Genres: Philosophy, Politics, Nonfiction, Theory, Law, Education, Society

352 pages, Paperback

First published November 18, 1993

About the author

Stanley Eugene Fish is an American literary theorist and legal scholar. He was born and raised in Providence, Rhode Island. He is often associated with postmodernism, at times to his irritation, as he describes himself as an anti-foundationalist.

He is the Davidson-Kahn Distinguished University Professor of Humanities and a Professor of Law at Florida International University, in Miami, as well as Dean Emeritus of the College of Liberal Arts and Sciences at the University of Illinois at Chicago, and the author of 10 books. Professor Fish has also taught at the University of California, Berkeley, Johns Hopkins University, Columbia University, and Duke University.

Reviews

[bARRY · Rating 4 out of 5]

you can't beat essay titles like "the unbearable ugliness of volvos," especially when they are about faux-asceticism and functionalism. anyway, fish if bold, vivid and smart. after reading this book, i realized rhetoric isn't necessarily a bad thing...and tying an antiessentialist view of the world to the apple/the bit/the fall is genius.

[Crito · Rating 5 out of 5]

I find Fish to be an excellent and overlooked pragmatism-adjacent figure. This book catches him at the completion of a fairly interesting trajectory where had expanded from Milton scholarship to rhetoric and subsequently legal theory and jurisprudence and political commentary. His primary centers of concern in this volume happened to have all aged well: the smokescreen of the so called campus culture war (oddly centered around debates with Dinesh D'Souza of all people); the tug of wars concerning free speech; and the question of how political (in the broader not-just-partisan sense) the US court system is, which it seems liberals always memoryhole until the SCotUS hands out a particularly large L. I'm also drawn, not just by these topics, but by Fish's angle of approach from a broad anti-foundationalism (I'll return to this), an implicit and often explicit focus on rhetoric (which in philosophy is underrated by just about everyone except Arthur Danto), and an ongoing critique of liberalism undergirding everything.

I read the titular essay in an anthology some time ago because it was a funny title, and now it is more or less the foundational text for my view of free speech; that is, free speech is predicated on drawn lines excluding forms of expression from a liberal society, naturally violating the most libertarian expressions of free speech doctrines; and therefore free speech is only "free" within its prescribed boundary, which is not free in the sense people want it to be. I like Fish's example of Milton's Aeropagitica, his famous freedom of expression tract championing the rights of English publishers to print everything they damn well please; unless it is Catholic, in that case the obviously objectionable sin of popery can and must be consigned to the flames. So long as people have aims and ends, and discourse features within the life of those aims and ends, discourse will be value laden. We can fight over what we want in and out of the circle, but so long as there are things you would say to your friends but not to your grandma, the circle remains. And meanwhile, first amendment jurisprudence has been plagued with a forlorn distinction between action and "mere" speech, which nonetheless serves as the staging ground for the expected arguments over what goes in and out of the circle. One of Fish's claims I remember as being the most objectionable is that the circle determines whether a sentence is to have meaning at all. To assert that is obviously false; it must have semantic meaning to even begin to be excluded, and even in the weak sense of "does this sentence have cash value" there are undeniably forms of forbidden speech which have uses, and speech even gains certain uses through exclusion. Thankfully Fish never addresses this in any meaningful capacity, which leads me to believe it was simply a careless rhetorical flourish in one or two sentences.

I am often tremendously suspicious of the English Department Theorist; from a fairly narrow kind of field there are those who make what I'll call philosophically brave pronouncements based off extrapolations of textual analysis of fiction and poetry using theoretical frameworks most would not touch with a thousand foot pole. Fish is a figure who I consider at least in dialogue with philosophy, but he doesn't give the barb in the back of my skull I get from other literary figures who do the same, and for that I am tremendously grateful. The main point of contention which comes to mind is related to what he calls his anti-foundationalism. I am a fan of anti-foundationalisms, and I think Fish is fairly good at navigating it. Fish is both contemporaneous with and inspired by Richard Rorty, a figure I also enjoy. The problem only comes in with the essay on pragmatism, which itself discusses Rorty briefly. It is centered around a critique of Richard Posner's pragmatist program for jurisprudence; the contention is that the phrase pragmatist program is a contradiction of terms. While I think some of the individual critiques are sound, this broad claim betrays Fish's misconstrual of pragmatism: he seems to think pragmatism is simply the doctrine of anti-foundationalism. Instead, if we read someone like Dewey, then up through Hegel and Darwin, something like an anti-foundationalism is achieved as the result of a pragmatist program; we don't simply have it from the jump, apart from a inclination this way or that. Fish's view is something which I suspects emerges from a reading of Rorty. I am fairly charitable towards Rorty, I think he has done his homework and while Dewey is Socrates to his Plato in much of his writings, the most unfair criticism is that his Dewey is its own unrelated beast. But that Rorty does not spend much breath on e.g. experience the way Dewey does only indicates that he has his own interests and angles he likes to pursue. One is anti-essentialism. It's not hard to see how someone like Fish could spy on Rorty's writings and then unfairly conclude that anti-foundationalism is simply the foundational bedrock of pragmatism. Given that there seemed to be a number of these minor commentators on pragmatism, I could see how that angle could spin out on its own. Ultimately I don't chalk it up to a major fault with Fish, and he is honest in saying he does not consider himself a pragmatist.

Stanley Fish, the literary theorist, also has a few essays on literary theory. They are largely about the state of discourse of literary studies. I happily report I still don't really care about literary theory. And finally, he rounds things out with a short essay which is an amalgamation of every doompost about academia I have seen from junior academics and grad students on twitter. Glad to be reminded of how relevant most of the papers in this book have remained; though today they may walk in different clothes (out with the conservative gripes about "ethnic studies," and in with the equally braindead CRT panic.) I really only read this book on the good will of the titular essay (again, 5/5 for that alone), and I was consistently happy with what I got. So while There's No Such Thing as Free Speech and The Law Wishes to Have a Formal Existence are worth tracking down on their own, I'd recommend the rest as well.

[John Jankowski · Rating 5 out of 5]

Again, this review is not mine but instead one that I am sympathetic:

From CHRONICLES MAGAZINE (8/94) and penned by Kenneth Craycraft:

“Prejudice renders a man’s virtue his habit: and not a series of disconnected acts. Through just prejudice, his duty becomes a part of his nature.”
—Edmund Burke

Few names are more notorious in the contemporary academic and culture wars than that of Stanley Fish. Among conservatives, he is mockingly dismissed as the representative of all that is evil in the modern university: a man for whom texts mean whatever the reader wants them to mean and who is hell-bent on destroying the canon of Western literature—and thus Western civilization itself. In most critical accounts, Fish is presented as either a sophistic buffoon or a cancer on the academy, and he has recently been portrayed as both in Dinesh D’Souza’s Illiberal Education, a book that sets the context for several of the essays in There’s No Such Thing as Free Speech.

But conservatives do themselves and Fish a great disservice by not attending to his real arguments, either to meet them when they are wrong, or, as is probably more often the case, to learn from them when they are right. Fish’s challenges to some of the sacred tenets of conservative political and cultural theory are among the most powerful that have been made, and they must not be left unchallenged. For instance, his defense of affirmative action and minority set-aside programs in the university is among the most convincing I have read. For conservatives to meet his challenge, they must come up with new arguments, as he effectively disarms the usual ones by not pretending that affirmative action is not a type of discrimination.

But Fish is at his best, both philosophically and rhetorically, when he is attacking liberalism. And while his critique of conservative thought is strong, his critique of liberalism is devastating. The late Christopher Lasch was sometimes referred to as a conservative’s favorite leftist. Stanley Fish ought to be considered not just a conservative’s favorite deconstructionist (whatever that is), but as one of his most powerful allies in laying to waste the sacred cows of liberal political and moral theory.

It is first important to understand what these terms mean. Chapters three through seven of this collection of essays were written for a series of debates with D’Souza on university campuses after the publication of Illiberal Education a few years ago. And while the best essays of Fish’s book come later, the debates with D’Souza set the proper context and give us a sense of how Fish understands his own cultural criticism. While common opinion would see these debates as Fish’s critique of conservatism, it is actually D’Souza as a liberal that Fish attacks. Fish at times even sounds downright Burkean in his critique of D’Souza and others whom Fish calls “neoconservatives.” In both his defense of literary (non)theory and his critique of liberal moral and political epistemology, Fish presents arguments that are not just friendly toward conservative thought, but are themselves expressions of the best of conservative reasoning.

Fish is perhaps best known as one of the founders of so-called “Reader Response Theory,” usually caricatured as something like “texts have no inherently objective meaning and therefore mean whatever the reader wants them to mean.” This is, of course, tantamount to saying that texts have no meaning at all, a blatantly nihilistic position that Fish is often accused of holding. But, as with any difficult and subtle theory, it is easier to dismiss a caricature than to engage the real thing. This is precisely Fish’s charge against contemporary neoconservative liberals.

Fish’s argument is not that texts have no meaning, but rather that the meaning of the text—any text—is necessarily shaped by the context of the author, as well as by the context of the reader. It makes no more sense to say that a text has a meaning apart from an interactive reader than it does to say that a falling tree makes a noise if there is no one or thing there to hear it. This is no more controversial a position than saying that no text is self-interpreting, a staple of, for instance, good Roman Catholic biblical hermeneutics. As Fish explains it, the author has explicit reasons for writing the text, but he is also molded and formed by practices and contexts that he has not chosen, which give his text meanings that are out of his control. The reader, in turn, is no less encumbered by reasons and practices, both known and unknown, as he reads the text. And it simply is not possible to deny that these practices and reasons (rather than some elusive universalist Reason) have some performative influence in the writing and the reading of the text. The ironic answer to his critics on the right is that for Fish a text may mean all sorts of things, but it can never simply mean whatever the reader wants it to mean. For this would imply that the reader is capable of abstracting both himself and the author of the text from the particular communities of which they are part.

Importantly, Fish sees this theory as a refutation not of conservatism, but of liberalism, which toils under the delusion that it has found some epistemologically privileged position from which it can find objective meaning in terms of a universalist rationality. This leads to a highly individualist account of reading a text, which assumes that any rational interpreter can find the “objective” meaning of the text on his own, apart from any interpretive tradition. While never denying that there is such a thing as “truth,” Fish denies that any such privileged position is possible. Truth, whatever it is and whenever it is found, is necessarily found within some community of understanding.

This argument is closely connected to Fish’s more political critique of liberalism, which is presented in two key chapters: the title essay of the book and “Liberalism Doesn’t Exist.” Fish is most brilliant in giving lie to the claim that liberalism is a neutral set of procedures, rather than a substantive—and therefore exclusionary—account of the good. Precisely in denying the reality of public goods, liberalism has posited a public view of good and must therefore fashion its various moral and political institutions around that. Free speech, rather than being a procedural guarantee of access to the public arena, must be understood against the background of liberalism’s substantive understanding of what does and does not constitute public good. Free speech is thus a substantive political expression of liberal ideology, which necessarily must exclude some speech-acts.

“I am not making a recommendation,” explains Fish, “but declaring what I take to be an unavoidable truth. That truth is not that freedom of speech should be abridged but that freedom of speech is a conceptual impossibility because the condition of speech’s being free in the first place is unrealizable.” For the same reason that there is no epistemologically privileged position from which a text can be read and understood with perfect “objectivity,” so no speaker may free himself from certain political and ideological boundaries that he has not chosen but cannot discard. The background of any “speech-act” is “not an object of [the speaker’s] critical self-consciousness; rather, it constitutes the field in which consciousness occurs, and therefore the productions of consciousness, and specifically speech, will always be political (that is, angled) in ways the speaker cannot know.” Like “text-creating,” speech always happens in some kind of community and is therefore, at least to some degree, both constitutive of and shaped by that community.

Thus, commitment to free speech as a good in itself is inseparable from commitment to liberal ideology, even by those who would declaim that commitment. The liberal notion of free speech presupposes the radically individualist anthropology that characterizes the worst in liberal moral theory. Moreover, ideological commitment to free speech presupposes the very worst in liberal moral theory: radical moral relativism. This has important and perhaps ironic implications for conservative criticisms of campus speech codes. Conservatives have no interest in advocating abstract free speech on campus, because “free speech” is a liberal “truth-claim” at war with all other claims of truth and therefore at war with all attempts to live truthful lives in some context other than liberalism.

Speech is necessarily a good only in the context of a particular, exclusionary community of value. “Free speech” is the expression of such an exclusionary community, one that denies the validity of hard contextual truth-claims. Indeed, “free speech” itself is a contextual truthclaim (which denies that it is so) that necessarily excludes competing truthclaims. On college campuses, free speech is the ideological weapon used to undermine the contextual practice of some other vision of truth. For conservatives to defend free speech as a good in itself is to defend a notion that undermines conservative commitments, practices, and truths. Conservatives ought not to appeal to a principle of free speech when liberals try to curb some speech, as this is an appeal to the idea that permits the sanction of speech in the first place.

Conservatives, by objecting to campus speech codes, use the same rhetoric and ideological commitments that justify them—commitments to some abstract notion of free speech, which in reality is a very concrete, contextual liberal political and moral good. The university can only be a place where truth is told and practiced. That truth may be “freedom of speech” or something else; it cannot be both. Conservatives ought to attack some speech codes, not in the name of some abstract idea of free speech, but rather in the name of some truth that such codes suppress. Obversely, conservatives ought to be at the forefront in advocating speech codes when the speech under sanction would undermine the truthful practices of the university community. A conservative understanding of freedom of speech realizes that freedom is at the service of, and thus delimited and defined by, some good that transcends it—namely some truth or compatible set of truths about God, man, the world, and politics. To be sure, free inquiry properly understood is a necessary element of finding truth. But listen to radical, leftist, deconstructionist Stanley Fish on this matter:

The fact . . . that settled truths can always be upset, at least theoretically, does not mean that we cannot affirm and rely on truths that according to our present lights seem indisputable; rather, it means exactly the opposite: in the absence of absolute certainty of the kind that can only be provided by revelation (something I do not rule out but have not yet experienced), we must act on the basis of the certainty we have so far achieved. . . . When it happens that the present shape of truth is compelling beyond a reasonable doubt, it is our moral obligation to act on it and not defer action in the name of an interpretive future that may never arrive.

We do not abjure such truthful commitments in the name of free speech, as that would be to embrace another, contradictory claim of truth.

Conservatives should defend not free speech but a vision of true speech. In doing the former, they are mirroring precisely what liberalism does when it uses its notion of “free speech” as a trump to undermine competing truthclaims that it cannot otherwise refute. As Fish succinctly states the matter, “free speech principles don’t exist except as a component in a bad argument in which such principles are invoked to mask motives that would not withstand close scrutiny.”

To state the matter even more finely: there is no such thing as free speech, because liberalism doesn’t exist. Fish takes on Stephen Carter, who has complained that he wants liberalism to “cherish” and to take seriously the religious beliefs that provide the “fundamental worldview” of most Americans. Carter thinks liberalism is a tolerant procedural system in which all worldviews are offered equal protection and respect. But Fish explains that liberalism can never take religion seriously, since liberalism is itself “informed by a faith” that rightly sees other faiths as hostile to itself. Liberalism may protect some kinds of religion within carefully constituted and defined boundaries; but to allow religion to escape those boundaries would be a threat to liberalism’s own exclusionary agenda.

So long as religion remains compatible with liberal canons of reason, religion may enjoy relative tolerance. “The one thing liberalism cannot do,” however, says Fish, “is put reason inside the battle where it would have to contend with other adjudicative principles and where it could not succeed merely by invoking itself,” since its own legitimacy is what would be at issue. Liberal reason. no less than religious reason, ultimately rests on belief. And to allow religious reason to start asserting itself in the public arena is to allow the very beliefs that sustain liberalism to be threatened.

Carter’s mistake is the common one of believing liberalism’s most important assertion: that it is the worldview of tolerance and neutrality. “What liberalism does in the guise of devising structures that are neutral between contending agendas,” Fish explains, “is to produce a structure that is far from neutral but then, by virtue of a political success, has claimed the right to think of itself as neutral.” But “liberalism is tolerant only within the space demarcated by the operations of [liberal] reason; any one who steps outside that space will not be tolerated. . . . In this liberalism does not differ from fundamentalism.” Liberalism must insist upon its view of reason as the only legitimate source of moral and political knowledge, else it would not be liberalism. Thus, Fish charges, against its most adamant assertions, “liberalism does not have at its center an adjudicative mechanism that stands apart from any particular moral and political agenda.” Liberalism “is a very particular moral agenda,” and its reasons and truthclaims are as embedded and exclusive as anyone else’s. Liberalism cannot tolerate other moral agendas that contradict or exclude its own. By its own (impossible) criteria of what would constitute it, “one can only conclude, and conclude nonparadoxically, that liberalism doesn’t exist.”

To be sure, there is much with which to disagree in this wide-ranging and assertive book. Moreover, Fish can at times be as guilty of caricaturing his opponents as they are of caricaturing him. And I have barely scratched the surface of the breadth of topics this collection covers. The longest section is a brilliant analysis of various current legal theories, especially those having to do with originalism and other schools of constitutional interpretation. But for his critique of liberalism, including the liberalism that thrives under the title “conservatism,” Stanley Fish offers a brilliant and unique book that must be taken seriously. In the current culture wars, the enemies of our enemies are our friends, no matter where we find them. There’s No Such Thing as Free Speech is a devastating salvo against liberal intolerance, regardless of its guise.

[There’s No Such Thing as Free Speech . . . and It’s a Good Thing, Too, by Stanley Fish (New York: Oxford University Press) 332 pp., $25.00]

+ Some favorite/key passages:

+

[Nick · Rating 3 out of 5]

An accessible introduction to Fish's (mostly anti-foundationalist, anti-essentialist) work, which helped me clarify some of my own thinking on the subjects he addresses. On the minus side, he does come across as indecently smug and self-important at times.

[Alessandro · Rating 5 out of 5]

This is one of my favorite collections of essays. If you know what anti-foundationalism is, you should read this.

[James Wilson FRHistS · Rating 3 out of 5]

This book was quite influential on me as a student, back in the mid-1990s when it first came out and I bought it mainly on the basis of the title. The book is a collection of essays, along with the transcript of an interview with Fish at the end. His writing style is finely crafted but does require concentration, at least until one becomes accustomed to it. The titular essay is a well argued piece against some of the conventional free speech justifications, and along with a second one on free speech forms the best part of the book. Not so impressive is Fish's attack on law and legal reasoning, which he takes much too far (and in which he, as a non-lawyer, makes basic mistakes, such as with contractual interpretation). His advocacy of affirmative action probably belongs in a different book. At times his ego and arrogance test the reader's patience, and the interview at the end rather confirms his inflated view of himself. Yet there remains much intellectual gristle for readers to enjoy.

[Netanel Kleinman · Rating 4 out of 5]

Thought provoking essays and certainly "The Unbearable Ugliness of Volvo's" came to the final conclusions that one would have expected throughout the essays in a concise and precise manner. Not an easy read by any stretch of the imagination but I would suggest a worthwhile one for anyone interested in the academic world and the battles being waged there.

[Patrick · Rating 5 out of 5]

Very interesting, if outdated in 2022.

[Nathanael Myers · Rating 4 out of 5]

Fun.

[Nathan · Rating 5 out of 5]

4.5