15 August 2013

Swimmingly Obvious: Stanley Fish and Free Speech

Stanley Fish argues about free expression's latent impossibility;1 there are too many barriers to truly-free speech. Texas v Johnson concerns defining speech and recognising its legal limits once defined. Speech in any form requires interpretation--even the mundane--so what readers think writers mean is not necessarily what writers try to say.2 In this post I explore Fish's remarks on free speech. While I agree that free speech is factually restricted, I disagree with his path to that conclusion.

Note: When the US say 'speech', and the British (and other Europeans) say 'expression', they talk about the same thing.

Fish tells a story about fairness. A young worker is angered at having lost out on a job. He planned to get a position by nepotism but changes are made when a system of meritocracy is implemented in his workplace. This demonstrates a problem of interpretation in free speech, which Fish implicitly and explicitly explores: the anger is at the unfairness because meritocracy--even though seemingly fairer to and for everyone else--destroys all heretofore expectations in the instant3 workplace and so is unfair to those who organised their lives according to the overridden system.

This issue of changed expectations alters the legitimate use of 'fairness'. This is problematic: if expression is free all the time, that freedom must apply to every possible interpretation. To explore this point, I examine Texas v Johnson, which concerns flags as expression. After and during that, I will examine Fish's criticisms of Ronald Dworkin, assert they are poor criticisms, and collet any remaining notions together to take this essay in its proper direction.

1. Introducing… Texas v Johnson

The United States' Supreme Court composed itself one day to hear arguments about first amendment, constitutional protection for flag burning. The judiciary were divided. Justice Brennan held that a conviction for flag burning is unconstitutional. On the other side, Chief Justice Rehnquist--with much eloquence--denied the conviction breached the First Amendment. Justice Brennan spoke for the majority, so Johnson was not guilty of a crime--the crime the government tried to convict him for did not satisfy US constitutional law.

Both judges are persuasive; Rehnquist CJ's argument reiterates-by-example the value in Fish's opening story: his dissent shows not everything expressed is clear, nor even is it clearly speech; unless classed as speech there may be no protection by the laws that do protect speech.

Justice Brennan begins with this: he asks if flag burning is speech at all. He confirms the view the protection 'does not end at the spoken or written word', which seems to extend legal protection to any expressive action.4 In agreement with Fish and Chief Justice Rehnquist, Justice Brennan acknowledges free speech is limited.

Citing United States v O'Brien5 and Spence v Washington6, the US Constitution's First Amendment extends only so far as speech recognisably communicates an idea. Justice Brennan garners a test from Spence, which requires the speech's 'message [is] understood by those who [receive] it'.7

Understanding is the theme behind Fish's introductory story. Characters in stories are written well if readers can relate to them. Fish's protagonist is only empathised with if the reader understands the character's use of 'fairness' is due to his perspective. As such, Fish proves-by-example that unless understood as communicative, something may not be classed as speech and so may not be freed by the first amendment. This is a sensible barrier to full freedom: without it, the law would be preposterous; it could mean that driving is always classed as speech, and so not legally subject to road traffic laws--a complete nonsense.

1.1 An Example

It is clearer to discuss this problem with an example. Free speech is unrestricted so long as the action is classifiable as speech (subject to exceptions). Imagine a political activist setting herself on fire to protest against oppressive government. Imagine a pyromaniac setting himself on fire. Ignore the practicalities of arresting someone on fire. The first communicates an idea, but if the second does he is shy about sharing it.

The first is classifiable as speech according to the test in Texas v Johnson,8 but the second is not. The first, therefore, is legitimate, but the second may be restricted. Even if it turns out the male pyromaniac had some idea to communicate, his action is not speech because it is not understood that way; therefore his behaviour is restricted, and what he might consider to be his speech is not free.

Against this, one may assert 'But speech is free because whatever so classed, it is granted legal protection'. This argument is a poor one because all it does is alter the chronology. Rather than limiting speech because it is antagonistic to certain (current political) values (the aforementioned exceptions), it tries to justify limitations by claiming they preceded the value-judgment. This is an unacceptable self-justification because the same (political) values will pervade the decision--to classify or deny as speech--that would pervade the question whether to restrict speech if restrictions were legal.

The disagreement between Justice Brennan and Chief Justice Rehnquist therefore proves an implication in Fish's story: even without non-contentious limits to free speech--for instance selling state secrets during war--one must agree speech that is innocuous now and evades the limits today may not remain so after a future reinterpretation, and so a freedom may not hold forever. Although reinterpretation may not occur, it is a possibility that denies speech's true freedom.

Usually it is the other way round: expression is banned today, then allowed tomorrow when society is more liberal. For examples to demonstrate the rarer case, there are super injunctions and Twitter scandals, where expression thought legal by expressers has been deemed illegal afterwards; though neither are reinterpretations of what was expressed.

2. Fish and Dworkin

2.1 Expression-Law and Consequences

There is another pertinence in Justice Brennan's speech that leads to Ronald Dworkin's thoughts on the subject. I begin half-way through Fish's exposition and then explain how he got there.

Fish states:
to form a consequentialist position, you must choose (…) some vision of the way you want the world to be (…) above other[ visions].9

This is recognised in precedent. Justice Brennan echoes the point:
[Precedent recognises] that a principal "function of free speech under our [US] system of government is to invite dispute. [Speech] may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."10

Therefore the law itself contains tacit designs for society's future. These designs involve judgments about what is good or bad. Speech, therefore is limited, qua not free, so 'there is no such thing as free speech'.11 The reason is because the law seeks certain desirous consequences.

Fish arrives here shortly after he criticises Dworkin's work. The late Professor Dworkin, years after Fish's criticism and years after writing the essay that Fish criticises, demonstrated Fish's accusation is false.12 But this support for Dworkin's earlier work cannot properly be used to refute Fish's initial assessment because it would be unfair for Fish--just like his protagonist, Fish would have the rules reversed against him if I claim his argument against essay X does not apply to essay Y. Instead, then, I will dispute Fish's earlier assessment according to its own logical structure.

2.2 Fish's Argument

1. Fish asserts Dworkin's position is 'consequential'; he states Dworkin believes 'the proliferation of speech "will do us more good than harm over the long run"'.13 Fish infers that by 'good', Dworkin meant good consequences. This seems logical enough. Once free speech is justified because it has good consequences, then its freedom is determined ultimately by those consequences. This is still logical enough, but there is about to be a problem.

When Fish considers the good consequences to which Dworkin might have referred, he separates them with 'or': one consequence or a second consequence or a third consequence. But these may not be mutually exclusive. If these consequences are not mutually exclusive between each other, there is less reason to suppose they are mutually exclusive from inherent goods. Inherent goods, that is, which do not rely on consequences for their value.

To elucidate, the first consequence might be 'to support democratic debate', and the second might be 'to discover truth'.14 Imagine a fourth good, 'free expression is valuable because it promotes healthy relationships'. While this fourth good has consequences, it is broad enough to remain a 'good' even if under it there are some detrimental consequences--for example a fight after an insult--but just because sometimes the inherent good will not be respected is no reason to limit free speech. That is, the 'good' remains good, even when free speech that is justified by it, has bad consequences.

I have tried here to show the good to which Dworkin referred may not solely refer to good consequences; rather, Dworkin's 'good' may refer to social values that are manifest only in and by norms, and not just values so-called because they are rationally thought to promote good consequences. This is the first inference Fish makes of Dworkin's words on this issue.

2. The second premise's inference builds upon the first, and the third upon the second, etc. As a result, each subsequent premise relies on mounting subtle inferences: the area with which to doubt the final proposition, therefore, is exponentially greater than the area for doubt in Fish's initial logic above, where he relates 'good' to consequences with inappropriate automatism.

Fish is clever. He realises this problem and tries to evade it. Free speech or expression includes the right to receive as well as to speak or to express. Dworkin gives a pre-criticised-response to Fish, that free expression is not valued only for its consequences. Fish, however, tries to show how Dworkin's qualification--excluding the young and the incompetent from receiving some expression--undermines Dworkin's theory.

3. Before continuing, an observation must be noted: Fish has gone from asserting Dworkin means 'good consequences' when he says 'good', to inferring Dworkin means 'good consequences' when he says 'good-that-is-qualified'. This is important because it demonstrates a deceit in Fish's prose--a deceit to jump from inference to assertion, which the careless reader may interpret always as one or always the other and be persuaded by that deception.

Moreover, that the second inference of 'good' to 'good consequence' is from another aspect of free speech, shows Fish is willing to do what is rejected as bad practice, above: he criticises argument X for something implied in argument Y; the right to hear others' expression is only included in the right freely to express. This demonstrates Dworkin's intent is not to repeat himself in self-contradictory words on one point when he discusses another. Rather, Dworkin's intent is to consider two aspects of a single topic.

4. Moving back to Dworkin's qualification, Fish claims that if a right to hear others' expression is qualified, then it must be so due to an extrinsic value, 'something like the furthering of rational deliberation--and that (…) is (…) consequentialist (…)'.15 However, 'something like (…)' is not particularly accurate and does not lend confidence to a belief in Fish's veridicality. This is not the worst problem for Fish's argument, though.

The problem with asserting that speech must have extrinsic value is in Fish's interpretation of Dworkin, which broadens what actually is said: it is possible that external and intrinsic values apply to one concept, but Fish does not make clear why he thinks Dworkin considers they are exclusive, except to enable him to refute Dworkin. Again, this seems deceptive.

5. The third basis upon which Fish criticises Dworkin is the presence of consequentialist ideas in the latter's work--for example what might happen if expression concerning state secrets were free. Fish states Dworkin is committed to consequentialism regardless of whether he openly accepts or rejects it.

After this, Fish explains what his conclusion means for Dworkin's theory. But it is not clear why Fish's reasons matter at all. Fish claims that to base free expression on consequentialism is to base it on political foundations. This is unimportant because considering Law's Empire--which was published at the time Fish wrote, and so is not an essay X-Y problem--Dworkin based his legal theory on notions that include political justifications, thereby showing his non-consequentialist theory on free speech include politics, whether Fish openly realises this or is blind to it.

6. In light of all the above, free speech proponents attempt to be reasonable. Ironically, Fish acknowledges that 'no one holds or defends' an 'absolutist position', which is what he seems to interpret Dworkin as doing;16 and in so doing, himself becomes an absolutist. This reasonableness accepts that restrictions exist and may even be political.

2.3 Problems with Fish's Argument

The problems with Fish are:
  1. Fish's propositions are too strong. This makes for interesting reading but it means it is too difficult to affirm his drawn conclusions' merit.
  2. His arguments are structured well enough, but the premises leading to his conclusions are problematic.
    • Fish makes subtle inferences and tries to pass them off as unambiguous interpretation.
    • The result of these inferences is a series of propositions that are too strong for their content.
    • Ordinarily, if one premise were disproved because it were too strong, the whole argument would suffer and be called 'reductio ad absurdum'.
  3. Here though, even if Fish is forgiven this flaw, his argument is poor for another reason: cumulative reductions to absurdity represent the target as a straw man that, obviously, is easy to knock over.

Fish's writing is often complicated, however funny he sometimes is. It may simply be my misinterpretation of Fish's style, but for a writer who concerns himself with logic and interpretation, he surprisingly ignores the way his word selection might be interpreted. Consider the above example to prove this: to make an inference of another's work without supporting it with reasoning is poor practice, worsened because he switches between inferences and assertions but does not elucidate his switching-process.

2.4 Lessons from Fish

The lesson for writing taken from this is as follows: feel free to make inferences, and write assertions backed by more substantial evidence, but try hard not to switch between the two in a single proposition. If the same point can be made by an inference and an assertion, then clearly tell the reader you are doing so and explain why you do not solely use the assertion. Assertion, here, means to be as true as possible to the original author's intent, which attempt is made difficult if done with inferences.

1 Stanley Fish, There's No Such Thing as Free Speech: And Its A Good Thing Too, (OUP 1994). This post concerns ch 1, mainly pp 13–15.
2 Speech includes moving images, pictures, sculpture, actions, and anything else that might represent (express) a person's thoughts. This is a simple definition, but sums up what is said in Texas v Johnson (1989) 491 US 397, for example.
3 I say 'instant' to show new-to-law-readers a legal peculiarity: 'instant' refers to whatever is under consideration at the moment. For example the 'instant case' is the one on which judge presides as he or she writes 'instant'.
4 (1989) 491 US 397, 404.
5 (1968) 391 US 367, 376.
6 (1974) 418 US 405, 409.
7 (1989) 491 US 397, 404 citing (1974) 418 US 405, 410–11.
8 '[C]onduct "sufficiently imbued with elements of communication"': per Justice Brennan (1989) 491 US 397, 406 citing Spence 409.
9 Fish, There's No Such Thing as Free Speech 15.
10 Texas v Johnson 408–9 citing Terminiello v Chicago (1949) 337 US 1.
11 Fish, There's No Such Thing as Free Speech 14.
12 Dworkin, 'Even bigots and Holocaust deniers must have their say'.
13 Fish, There's No Such Thing as Free Speech 13 citing Ronald Dworkin, 'The Coming Battles over Free Speech' 11 June 1992 The New York Review of Books 56.
14 See eg ibid 13.
15 ibid 14.
16 ibid 15.

Created: 13 August 2013. Version 1.0.

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