Civil Liberties The National Newsletter of the ACLU #380, Spring 1994 (c) 1994 American Ci

---
Master Index Current Directory Index Go to SkepticTank Go to Human Rights activist Keith Henson Go to Scientology cult

Skeptic Tank!

Civil Liberties The National Newsletter of the ACLU #380, Spring 1994 (c) 1994 American Civil Liberties Union DUELING PENS: A Friendly Exchange About Unfriendly Words 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. ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

---

E-Mail Fredric L. Rice / The Skeptic Tank