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

346 Pages·1994·9.8 MB·English

by  Stanley Fish

y
STANL
F I SH
,
THERE'S
N O S U C H--.
THING AS
. ... and it's a good thing too
CURRENT AFF AIRS
WINNER OF THE 1993 PEN SPIELVOGEL-DIAMONSTEIN AWARD
In his witty, accessible dissections of the swirling controversies over
multiculturalism, affirmative action, canon revision, hate speech, and legal refom:i,
Stanley Fish goes straight to the core of the platitudes cherished by both the left and
the right. Not even the sacred concept of free speech escapes his lash; free speech,
Fish says, is what is left over when a community has determined in advance what it
does not want to hear.
Penetrating, fearless, and brilliantly argued, There' s No Such Thing as "Free
Speech is must reading for anyone who cares about the outcome of America's
cultural wars.
"Deflates anointed truths with joyful abandon." The New York Times Book Review
"A fine introduction to one of the greatest and most accessible minds in
contemporary Western thought." The Independent
"This is not after dinner or just before bed reading. But if you want to know more
about the debate that is about to boil off our campuses and start affecting our lives,
There' s No Such Thing as Free Speech is the place to start:"
Roanoke Times & World-News
"lf you believe in tolerance, fairness, merit, free speech-you know, all the golden
verities that have supposedly held Western Civilization together-meet Stanley Fish,
who may weil be your worst nightmare. Not only does he not believe in any of these,
he argues against all of them, forcefully, wittily, and-sometimes-persuasively."
American W ay
"Stanley Fish is the Roseanne Barr of the professoriate, an immensely talented ham
who delights in offending the pious." Cleveland Plain Dealer
Stanley Fish is Arts and Sciences Professor of English and Professor of Law at Duke
University. He is the Executive Director of the Duke University Press. A founder of
Reader Response Theory, he is the author of many books, including Surprised by Sin,
Self-Consuming Artifacts, ls There a Text in this Class?, and Doing What Comes
Naturally.
90000
Cover photographs of Stanley Fish by Barney Cokeliss
Cover design by David Tran
Oxford Paperbacks 9 780195 093834
Oxford University Press
ISBN 0-19-509383-6
$11.95
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STANLEYF ISH
OXFORDU NIVERSITYP RESS
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Copyright© 1994 by Stanley Fish
First published in 1994 by Oxford University Press, Inc.,
200 Madison Avenue, New York, New York 10016
Pirst issued as an Oxford Univcrsity Press paperback, 1994
Oxford is a registered trademark of Oxford University Press
All rlghts reserved. No purt of this public"li111111 1ayb e 1epwduecd,
stored in n retrievals ystem, or transmitted;i n any fonn or by any means,
electronic, mechanical, photocopying. rcc0;rdingo, r otherwise,
wiUmutl he prior pennission of Oxford University Press.
Library of Congress Cataloging-in-Publication Data
Fish, Stanley Eugene.
Tbere's no such thlng as free speech /
Stanley Fish.
p. cm. Includes index.
ISBN 0-19-508018-1
ISBN 0-19-509383-6 (PBK.)
1. Freedom of speech. 2. Freedom of speech-United States.
3. Academic freedom. 4. Academic freedom-United States.
L Title. 2657.FS 1994 323.44'3'0973-<.k20 93,1~147
98765432
Printed in the Unitcd Statcs of Amcrica
For Jane
and to the memory of
Max Fish and Henry Parry,
two honest men

PREfACE
When she was the chair of the National Endowment for the Humanities,
Lynne Cheney used to delight in pointing out that her views on the curric
ulum, literary value, and the canon were shared not only by fellow conser
vatives, but by liberals like Arthur Schlesinger and the occasional Marxist
like Eugene Genovese. In Cheney's eyes that broad-based consensus was a
clear indication that sh.e was simply voicing common sense in the face of a
radical, nihilistic assault on the entire fabric of Western Civilization. Al
though she never quite put it this way, the message was unmistakable: if
persons .s o far apart on the political spectrum share a distaste for an agenda
call it multiculturalism, postmodemism, deconstruction, or political cor•
rectness-that agenda is beyond the pale and should be rejected by all rea
sonable people.
The matter, however, is a bit more complicated than that, for conserva
!lve ideologues and liberal stalwarts recoil from the same thing not because
they are similarly clear-sighted but because they are committed to a siinilar
structure of thQ.~gjit,a lthough they would fill it out in different ways. lt is
a structure that opposes the essential to the accidental and enjoins us to be
vigilant lest the latter overwhelm the former. A Lynne Cheney and a Eu
gene Genovese might disagree as to what the essential is and where the
danger to its flourishing lies, but they will agree on the obligation to protect
it and they will join forces against anyone who argues, as }do, that _t he
essential is a rhetorical category whose shi1p~v aries with the contingencies
oflifatory and circumstance. In a debate about the curriculum, for example,
there might be arguments about which texts will produce the desired re
sult-the formation of a virtuous citizenry or .a commonwealth free of
oppression-but all parties will believe in the project and will reject any
suggestion that there ls nothing general to say about the relationship be-
viii / Pref ace
tween pedagogical choices and preferred outcomes and that finally one can
only respond to the question provisionally, by determining what might work
at this time, in this place, and for this momentary purpose. This refusal to
come down on one side or the other of an issue pösed in absolute terms
will always be heard as some kind of relativism or solipsism or nihilism
and as the subordination of value to political expediency, but in the chapters
that follow I assert that it is nothing of the kind and that values, rather than
being opposed to political commitment,. grow only in its soil and wither in
the arid atmosphere of bodiless abstraction, whether that abstraction is named
reason, merit, faimess, or procedural neutrality. The upshot of this is not,
as some would have it, that anything goes or that words have no meaning,
but that the line between what is permitted and what is to be spumed is
always being drawn and redrawn and that structures of constraint are si
multaneously .ci.l~~ys)!!p la~e. llJ!d_al ~~ys subject t(). revision if the times
call for it and resources are up to it. Neither the defender of the status quo
nor the proponcnt of radical change will find much comfort in these pages,
which issue no clarion calls and recommend (if they recommend anything)
only that we resist overheated and, overdramatic characterizatioris of our
situation, whether they come from the left or the right.
I would expect that for many readers the most distressing thing about
Lhesee ssays will be the skepticism with which they view the invocation of
high-sounding words and phi:asesl ike "reason," "mcri~," "faimess,"
"neutrality," "free speech," "color blind," "level playing field," and
''tolerance.'' My argument is that when such words and phrases are in
voked, it is almost always as part of an effort to deprive moral and legal
problems of their histories so tll.it Illerely formal calc1:1l.it!<:_c> a1n1 st hen be
performed on phenomena that have been flattened out and no longer have
their real-world shape. An exemplary (it is a bad example) instance of this
practice has just been provided for us by the Supreme Court in its recent
(June 28, 1993) decision that the creation by the North Carolina legislature
of two black majority districts may be unconstitutional because it smacks
too much of "race consciousness." "lt is unsettling," observes Justice
O'Connor in her majority opinion, "how closely the North Carolina plan
resembles the most egregious racial gerrymanders of the past. '' But the
resemblance that strikes Justice O' Connor _so forcibJy o~merge~ iLO.i!t!
jlas forgotten or bracketed out everything about the past that makes the ~
present an intelligible (and moral) response to it. Specifically, one must
forget that past redistricting practices were devised with the intention of
disenfranchising an already disadvantaged minority; discrimination was not
a byproduct of the policy, but its goal, and a goal whose achievement can
be measured by the fact (noted by Justice White in his eloquent dissent)