Stanley Fish and the Argument Against Free Speech

Free speech is in danger, many liberals warn. In traditional and social media, and in institutions such as universities, the limits of acceptable discussion seem to be growing ever narrower. Uncomfortably for liberals, the threat comes not so much from the state, the usual target of liberal critique, as from a portion of civil society. Increasingly many of our friends, neighbors, and fellow citizens, especially within the professional classes, no longer profess to believe that free speech is valuable—or even that it exists.

One of the leading intellectual figures in this shift of American opinion is Stanley Fish. Trained as a scholar of the 17th-century poet John Milton, Fish has for the past three decades been one of the country’s sharpest critics of free speech and of liberalism more generally. In his 1994 book, There’s No Such Thing as Free Speech, and It’s a Good Thing, Too, Fish pointed to many aspects of how speech works that liberals prefer to ignore—and offered a challenging new perspective on the origins of liberalism.

In an insightful interpretation of Milton’s 1644 pamphlet Areopagitica, one of the most famous statements against censorship of the press, Fish argued that liberal understandings of free speech are shallow and incoherent. Free speech depends on an unacknowledged spiritual tradition, he insisted, and can only make sense within it.

Fish began the titular essay of There’s No Such Thing as Free Speech by observing that “the concept of free speech” was falling out of favor with the left. In the 1960s and ’70s, supporting free speech had served the leftist efforts to lift restrictions on expressions of radical politics, sexuality, and the perspectives of minority groups. By the 1990s, however, claims about “free speech” seemed to have become a weapon by which conservatives shielded themselves from accusations of racism, sexism, homophobia, and xenophobia.

Fish did not call on leftists to congratulate themselves on this moral victory, by which they had convinced conservatives of the value of free speech. Nor did he urge them to consider how the right’s change of heart might have been a response to the left’s growing cultural power. Instead, he insisted that this shift had revealed free speech for what it was: an empty placeholder for political interests.

When we think about free speech, we perhaps have in mind some notion of passionate debate. But if we look at what people in practice do with the term “free speech,” Fish argued, we see that is a label we give to ways of speaking that we happen to like. It is “just the name we give to verbal behavior that serves the substantive agendas we wish to advance.” Speech that we do not like, no matter how courageous or thoughtful, does not seem to us like free speech. Instead, it seems like hatred, ignorance, and even the silencing of debate.

Fish’s observation may seem flippant and cynical. But debate inspired by the recent open letter on free speech published in Harper’s confirms his point—and the influence that views like his have in contemporary American culture. While the letter’s signatories tried to uphold general principles of free speech “against the intolerant climate that has set in on all sides,” they were perceived by many commentators as partisan actors. The moral standing and supposed agendas of individual signatories were scrutinized and fiercely anathematized on social media, where they were often depicted as privileged elites bent on silencing critical minority voices.

From the perspective that Fish offers, such responses should not be seen as expressing simply the mean-spiritedness or hypocrisy of individual commentators. Each of us only means by “free speech” the views that we happen to endorse, and each of us sees disagreement with those views as malicious, agenda-driven silencing. This is the structure of our experience of speech, which liberal principles disguise but cannot change. Whenever we try to apply those principles in specific cases, we find ourselves giving them a partisan content. We find ourselves saying that some kinds of speech do not deserve to be free.

To prove that his claim that our trouble lies in the concept of free speech itself and not in the failings of its modern-day defenders, Fish turned readers’ attention to the Areopagitica. Written by Milton in 1644 to plead with the English Parliament against censorship of books, the Areopagitica has become a central text in Western political theory. Reaching far beyond the specific issue of state censorship, Milton argued that open, courageous debate was vital to the politics, culture, and morality of a free society. Except, Fish noted, that just before concluding his immortal defense of liberal principles “Milton catches himself up short and says, of course, I didn’t mean Catholics, them we exterminate.”

Milton was writing in the midst of a political and religious revolution in England that had overthrown the monarchy and church hierarchy. In his day, as religious wars raged throughout Christian Europe, the Catholic Church appeared to be a threat to truth. From Milton’s perspective, the Church prevented believers from reading the Bible and forced them to follow the teachings of priests. Milton excluded Catholics from the community of those who ought to enjoy free speech not so much because their specific doctrinal beliefs were different from those of Protestants, but because they believed something different about the nature of truth: that it could be enforced through coercion. For Milton, truth cannot be transmitted at the point of a gun. Holding a belief—even a correct belief—because one is too afraid not to is not living in truth. It is “heresy.” Free speech is reserved for those who keep the faith that people can find and share truth without recourse to force.

Whatever the merits of revolutionary Protestantism, Milton was right about the nature of free speech, Fish insisted. We allow speech to be free within a particular community in order to achieve some particular end. Free speech is “produced within the precincts of some concept of the good,” a good that must be protected from its enemies through an act of “originary exclusion.” Because our society (any society) is oriented toward some substantive notion of the good, there are points of views that, if allowed to express themselves, would “undermine the very purposes for which our society is constituted.” Speech has effects on human minds, incites action and shapes society. If we were to allow any kind of speech whatsoever, that would mean we didn’t care about these effects, that we were happy to live in any kind of society whatsoever.

Liberals sometimes allow a weakened version of this idea by accepting that “the intolerant” should be silenced, but they are reluctant to conceive of society as having a purpose greater than the contingent goals of individuals. They are, moreover, ill at ease with the implications of speech having effects. While liberals often claim to want energetic debates about politics and values, they also seem to want such speech to be a kind of riskless thrill in which supposedly dangerous ideas are tossed around and then returned safely to the realm of theory at the end of staged conversations. They shrink back from Milton and Fish’s insights.

But we can no longer afford this intellectual cowardice, or the false courage of self-styled independent thinkers. We must confront the questions Milton and Fish pose: If free speech is always for some purpose or another, always doing something or another, always excluding someone or another, then how should we speak—and how should we speak about speech?

Having used Milton to demolish liberal views of free speech, Fish argued that the Areopagitica does not provide a model of how to give purpose—and limits—to speech today. While Milton revealed that “free speech” is oriented around the “common good” of a specific community, excluding the enemies of that good, his notion of the good was a “specifically religious” one. The modern United States, however, is a secular country. In what may seem like a paradox, Fish argued that this means Americans today will find Milton’s limited vision of free speech far too tolerant.

Members of Milton’s religious community could believe that their debates, guided by the spirit of God, would lead them to truth. This confidence in the ability of believers to understand Scripture, argue over it in a brotherly way, and advance toward a greater knowledge of divine things, “is indeed the whole of Christianity,” Fish said. But if we do not have such a faith that we are progressing toward truth—if indeed we doubt that there is such a thing as truth—then even allowing limited debates for limited purposes may seem dangerous.

The modern-day equivalents of Milton’s Catholics are not, for the most part, actual Catholics (though there are, to be sure, militantly illiberal Catholics). Rather, they are adherents of a new political spirituality for which we do not yet have an adequate name. They do not (yet) control the highest levels of government, but they evidently wield considerable power within state, corporate, and cultural institutions. In articles, in Twitter mobs, and in everyday conversations, they are reshaping our consensus about what counts as a legitimate opinion and what sort of ideas should be allowed to appear in the public sphere.

Inspired by critiques of free speech and of liberalism developed by thinkers like Fish, woke believers have made harm, vulnerability, history, and power into norms that set the terms of discourse. They do not believe that truth is something that we can find together, but rather that it is something they possess and can impose on others. For liberals who are prepared to abandon the illusions of free speech absolutism, it can be said that these believers do not constitute one side of a national debate but are the enemies of debate itself. Free speech can only begin when they have been defeated.

There is no perspective from which secular leftists can “endure whatever pain racist and hate speech inflicts for the sake of a future whose emergence we can only take on faith,” Fish warned. There is for them no truth on the horizon that could justify open political debate on sensitive questions, even with the sort of qualifications and exceptions that Milton made. Why allow disagreement at all if there is no truth to be discovered, only moral certainties to be perpetuated?

Taking from Milton a sense that free speech must have goals and limits, but abandoning his confidence that debates can produce truth, Fish founded his own conception of the politics of speech on the idea that we ought to avoid harm. This idea has now become common sense in much of American culture. Expressing doubt about the efficacy and ethics of diversity politics, questioning slogans like Black Lives Matter and Defund the Police, or worrying about the implications of gender reassignment therapies for children are all conflated with doing physical harm to actual people. It is difficult to discern whether the fear is that such doubts and worries, aired in public, might embolden violent bigots—or whether disagreement about the legitimacy of certain causes is, by its very nature, a kind of violence.

In shifting the focus from the truth that speech might discover to the harm that it might cause, Fish was informed by his sense of belonging to a vulnerable group. In his 1989 book Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies, he remarked that, having been born in 1938, “I am old enough to remember when it was not a simple matter to be both an academic and a Jew (now almost an identification).”

Coming of age when WASPish anti-Semitism was still a fact of life at many leading American universities, Fish did not take his presence in academia for granted. Nor, he observed in a 2007 blogpost for The New York Times, could he take for granted his safety in America. Entitled, “Is It Good for the Jews?” it recalls that this had been the central question of debates among friends and family as Fish was growing up in the 1940s and ’50s. While colleagues born after WWII might find it paranoid to track political developments in the United States today with that same fraught question, Fish argued that even when all seems well, the lesson of history seems to be that Jews must be wary of possible threats. These include the dangers of speech.

The principle of free speech might seem appealing to minorities and other vulnerable groups. But Fish warned that it is an instrument by which the privileged silence criticism. Individuals appeal to “such words and phrases as part of an effort to deprive moral and legal problems of their histories.”

When we insist that someone should be allowed to express harmful views, we are not merely upholding a neutral principle that the right to speak freely should be available to everyone. To think about the issue in these terms is to ignore that such speech strengthens the bigot and weakens his targets. Claims about universal rights ignore the “history” and “power” that are at play in any particular case. Paying attention to the latter means realizing that there can be no easy “neutrality.”

Fish’s critique of the concept of free speech challenges the foundations of liberalism. Free speech allows us, many liberals think, to debate issues in a rational way, using arguments rather than force to create consensus. This is because liberals understand speech as something outside politics, something fundamentally different from the physical force and coercion inherent to action on the part of the state. If, however, we recognize that power and history always operate in all of domains of life, and that we are always involved in ongoing struggles, then liberal perspectives seem to be the hopes of idealistic fools or the hypocritical alibis of the powerful.

Many today endorse something like Fish’s damning account of liberalism. One often hears that neutrality is impossible, that silence is violence, that liberal attempts to treat people equally ignore histories of oppression. But the specific histories and inequalities of power that motivated Fish’s account do not seem to speak to today’s post-liberal thinkers and activists. Thinking from a vantage of Jewish vulnerability, Fish turned to Israel as an example of the importance of sacrificing liberal principle to focus on power, history, and harm.

In his 1993 essay “Reverse Racism, or How the Pot Got to Call the Kettle Black” (included in There’s No Such Thing and first appearing in The Atlantic), Fish noted that some critics of Zionism equate Israel to other regimes based on ethnic and racial exclusion, such as Nazi Germany. These comparisons are outrageous, Fish answered, because they treat violations of a common abstract principle (states should not be founded on ethnic discrimination) as equivalent, ignoring the histories and power relations that make such different violations incomparable. The Aryan state was a genocidal regime based on oppression; the Jewish state is a haven from oppression. The present-day state of debate over Israel, however, shows that by appealing to histories of vulnerability and powerlessness, rival groups can make opposing political demands—with each calling for its opponents to be silenced.

It should not be difficult to imagine that claims about historical victimhood can be used to advance oppressive agendas: The invocation of a collective victimhood that must be defended against and/or avenged is a rhetorical staple of nearly every modern-day tyranny, both great and small. Therefore, anyone trying to use Fish’s ideas for deciding what speech should be permitted will have a difficult task. One would have to conduct an investigation into history, tracing power relations and weighing up accumulated wrongs. This would put one in the position of being a neutral arbiter not much different from that of someone upholding liberal principles of free speech. In both cases, one assumes the right to be a third party and evaluate claims on the basis of criteria that are not those of either partisan “side.”

Undoing liberals’ illusory conceptions of free speech to reveal the workings of history and power, as Fish called for, does not in fact make politics simpler or safer. Instead of accusing each other of violating the principle of free speech, rival groups can accuse each other of ignoring history and doing harm, with each presenting itself as a victim. Political partisanship remains as hypocritical as it was under liberalism, and still requires, above the fray, a neutral third party committed to truth—with the difference that ideas of neutrality and truth now seem to have no higher intellectual foundation. It is hard to imagine how such a state of affairs is “good for the Jews,” or for anyone else.

Yet if Fish’s solution is no solution at all, his critique of free speech and liberalism remains insightful. Liberalism often appears to be a kind of game in which we pretend to see situations other than they are. Liberals choose to ignore history, power, inequality, and vulnerability under certain circumstances. They choose to ignore the potential violence in certain words. They choose to imagine that their interlocutors are committed to a search for truth. These are always strategic, self-interested, political choices.

Liberalism is a wager that, by strategically ignoring some features of reality, liberals can build a decent society that offers relative safety and freedom to its members—while constantly pointing these features out would only excite partisan passions, endangering the foundation of society. Liberals, by these lights, are not the naive fools that Fish takes them for. Rather, they are calculating hypocrites who believe that their deceptions are superior to Fish’s dangerous and self-defeating truths.

Such a defense of liberalism and its conception of free speech could be constructed in answer to Fish’s critique. Cynical and sober, its proponents would know that “free speech” doesn’t really mean anything, and that speech really can hurt people. They would also know, although perhaps they would refuse to admit, that some kinds of speech must therefore be banned. If we are committed to living in a certain kind of society—one that allows people to flourish in their autonomy—then speech that undermines this goal must be (quietly and hypocritically) silenced.

A politics informed by a purely pragmatic conception of free speech would be a kind of Cold War liberalism for today’s culture wars. Rather than promoting a “common good,” it would try, with Machiavellian cunning and deceit, to protect the possibility of quiet, ordinary, nonpolitical life, founded on illusion, from the crushing intensity of politics.

But can we do better than that? Perhaps, returning to Milton, we can. Fish argued that the Areopagitica does not offer a model for contemporary American politics, because we no longer share Milton’s faith. Unless we are united by a spiritual connection, in agreement on common beliefs and oriented toward a shared goal, how can we hope to find truth through discussion? Why would we put up with all the discomforts and dangers of free speech?

Let us consider what Milton said about the relationship between truth and spirituality. He argued that although God has revealed to us moral obligations, He has also given us “the gift of reason” and the “freedom to choose, for reason is but choosing,” so that we can discover for ourselves how to fulfill them. To choose well, we must acquire truth, including knowledge “of evil.”

Searching for truth involves reading books by pagan, heretical, and wicked authors. We must be prepared for truth to come from even more unexpected sources. God has sent prophets in the past and may send others in the future. Both by reading nonbelievers and listening to possible prophets, we can acquire deeper insights into Scripture. But, whenever they come, such new insights produce debate. After all, Milton reminded readers, Christianity itself “was once a schism” within Judaism. Free speech will involve not only engagement with people who believe differently than we do, but a perpetual openness to challenges and transformation that may lead us to change our beliefs.

Pursuing the truth is necessary to our spiritual lives, because without it we cannot be the autonomous moral agents that God desires us to be. We cannot pursue the truth alone—we must enter into discussion with all sorts of people, including those who may create dangerous “schisms.” Some of these people will bring us new truth, and others, by challenging us to give new reasons for the truths we already possess, will help us acquire “true knowledge of what we seem to know.” Our disagreements with these people are likely to be vigorous and disturbing, but if we avoid them, then we will lose hold not only of our spiritual freedom, but also of our tradition.

Milton warned that if we are in thoughtless “conformity” with custom and refuse to address the challenges posed to it by heretics, possible prophets, and other interlocutors, then we will descend into a kind of “heresy” that consists of believing without a rational basis. At the same time, he claimed, our religious traditions are full of ideas that have become shocking by today’s standards. The great thinkers of the past wrote with “dash” and “venturous edge” that upset many modern readers’ “low decrepit humor.”

The Bible itself is full of scenes of depravity, violence and expressions of heresy and atheism. Many, Milton noted, would prefer receiving some bowdlerized official teaching extracted from the Bible rather than confront the offensive material and troubling mysteries of the text itself. Being authentically spiritual and being authentically traditional both demand that we not only tolerate, but practice and seek out, free speech, grappling with what disturbs us most in our own history.

We are not 17th-century Protestant revolutionaries. But a spiritual community like the one Milton imagined does not need to be specifically Protestant, Christian, or even theistic. All that seems to be necessary is that its members believe truth can be attained by individuals using reason, consulting their tradition, and debating with their fellows. This would satisfy Fish’s requirements for a society capable of preserving free speech: reference to a “common good,” supported by a “faith,” and protected by an “originary exclusion” from its foes.