The High Cost of Free Speech

free speech zone
Reading Time: 14 minutes

Stanley Fish is one of our nation’s most noted academics on the subject of free speech. Amid battles over the internet, cancel culture, and political unrest, Professor Fish joins us on this week’s WhoWhatWhy podcast.  

Fish — the Davidson-Kahn Distinguished University Professor of Humanities and Law at Florida International University, and a visiting professor of law at Cardozo University argues that current arguments over the practice of free speech, and how we define it, reflect thorny questions we’ve been dealing with for 250 years. 

For him, free speech is not a “thing,” it is a “ragtag bag of ideas.” No wonder the interpretation of the “right” guaranteed by the First Amendment is never easy or natural — and that there is always a cost to those who practice it and those who are subjected to it.  

Fish explains the difference between how free speech applies to the government and how it governs your relationship to your employer. And why free speech is such an issue in the academy, when the opposite should be true.

Freedom of speech may free us from some constraints, but it also frees us to say and do terrible things. When speech is free, he says, “consequences always abound.” 


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Jeff Schechtman: Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman.

We seem to be facing a time when the speech police are everywhere, a time when even the majority of progressive people simply seem to be losing faith in the value of free speech, all the while seeming to want to narrow the words that we can use. “Don’t you see,” George Orwell wrote in 1984, “the whole of newspeak is to narrow the range of thought. In the end,” he says, “we shall make thought crime literally impossible, because there will be no words in which to express it.” Just what does free speech mean? Is it under threat today from the left and/or the right? Why is it also about safety and why are our colleges and universities front and center in this debate? We’re going to talk about this with one of the intellectual guiding lights of the discussion of free speech, Professor Stanley Fish.

Jeff Schechtman: He’s the Davidson-Kahn Distinguished University Professor of Humanities and Law at Florida International University and a visiting professor of Law at Cardozo University. He has previously taught at Berkeley, Johns Hopkins, Duke and the University of Illinois, Chicago, where he served as Dean of the College of Liberal Arts and Sciences. His articles and essays have appeared in numerous publications. His most recent book is The First, and it is my pleasure to welcome Professor Stanley Fish to the WhoWhatWhy podcast. Stanley, thanks so much for joining us.
Stanley Fish: Good to be back, Jeff.
Jeff Schechtman: One of the things that you talk about is that we really don’t do a very good job of defining what free speech is, that it’s not really this magical thing that’s out there.
Stanley Fish: Yeah, we don’t do a good job of defining what it is because it’s impossible to define. It’s not a simple, unilateral abstract thing. It’s a set of decisions, really, made in different areas of application. And those decisions all use the term free speech or freedom of speech, but they don’t always mean the same thing by it because the stakes are not always the same. So it’s going to depend on whether you’re talking about an academic setting or a setting in a Hyde Park corner context, that is, a place where people get up on a soap box and speak what’s on their mind, or in a business setting where, of course, a speech is a part of doing business or in a political setting. All of these present different situations to which different responses are made. And again, although the term free speech is invoked in all of them, if you take a good look at them, at the different situations, the term doesn’t mean the same thing, and isn’t doing the same kind of work.
Jeff Schechtman: Inasmuch as it is part of our constitutional framework, is there a legal definition? Is there a way that we can look at it within a legal construct that is helpful to trying to define it?
Stanley Fish: Yeah, that’s an excellent question. You can begin with the very basic notion that the government is not supposed to either interfere with the speech that you would like to produce or compel you to produce speech that the government wants you to produce. So you can start with that basic. That this government cannot tell you that you can’t say something nor can it put words in your mouth and demand that you speak them. And so that’s fairly basic. But once you’ve said that, you haven’t said that much, because most of the constraints on speech and most of the penalties for speaking are given out not by the government, but by your employer, by your wife or husband or partner, by your friends, et cetera. So that’s the point at which things become extremely complicated.
Jeff Schechtman: The other part of it is what defines speech itself, when we’ve had the courts define even money as a form of speech in something like Citizens United.
Stanley Fish: Yes, a definition of what is speech goes back and forth just as the definition of what is action goes back and forth. And in fact, these two opposites, speech versus action, are really not so opposite but are intertwined and a whole succession of speech decisions by the Supreme Court illustrates this. At times, the Supreme Court will declare that a form of action like sleeping in a public park is indeed an act of expression and should be protected. On the other hand, the Supreme Court will say that a form of action like burning the flag is also a free expression. And on the other side, in one decision, it was said that telling a policeman that he’s a fascist is not an act of speech, but is a piece of actionable activity and action. So the Supreme Court and all courts have this wonderful mechanism whereby they can turn speech into action and action into speech given the argumentative force to do so.
Jeff Schechtman: And of course, perhaps a good example of that is the idea that speech doesn’t allow you to yell the proverbial fire in a crowded theater.
Stanley Fish: Oh, well, to yell it falsely.
Jeff Schechtman: Right.
Stanley Fish: Because if in fact there were a fire-
Jeff Schechtman: Right.
Stanley Fish: … in a crowded theater, you might be praised for letting people know what’s going on. But that touches on another question. Are lies allowed and in fact, indemnified under free speech and law? And indeed, since the Supreme Court case, New York Times versus Sullivan in 1964, lies and misinformation and in fact, some forms of defamation, have been allowed as forms of freedom of expression under the notion that even if they are false and misleading, they are part of the democratic conversation and the democratic conversation should be kept going.
Jeff Schechtman: Which goes to this other broader point that you talk about that, that free speech isn’t free, that it has consequences on the other side.
Stanley Fish: Yeah. No, of course that’s obviously true when you’re talking about free speech context, which are not ruled by the government. You can speak freely and then find yourself fired tomorrow for having done so as long as the person or agent firing you is not the government. So that, for example, when some employers saw video clips of their employees at the Charlottesville Monument riots and saw them acting on what was called the alt right side, they fired those employees. And it’s certainly true that those employees were fired for actions which are arguably actions of speech, actions of protest, political actions, and that the government says that political action is protected as a form of expression. What that means, of course, that as a form of expression it cannot be the basis for your being put in jail, but it can be the basis for your being put out of work.
Jeff Schechtman: One of the things you talk about is that in going back to where we started, that it’s not a thing specifically, but it is a kind of value. What does that mean, exactly?
Stanley Fish: Well, free speech as a value, as opposed to a principle, is the point that I try to make. If free speech were a principle in the strong sense, then there would be no exceptions to it or only exceptions in extraordinary circumstances. But free speech as a value is in competition with other values. And once that competition occurs, then it has to be decided, often by courts, which value is it more important to protect in this particular context? So for example, if you wish to speak to women entering an abortion clinic, assuming that there are any more abortion clinics left in the country, then you have to distance yourself from anywhere from 35 to 100 feet and speak in a respectful manner. That is a restraint on freedom of speech. And there are so many more of them that the idea of freedom of speech as something that we have as an initial or default position before exceptions are grudgingly allowed, just doesn’t hold up. The context in which the speech is freely produced without anxiety and without repercussions is almost non-existent.
Jeff Schechtman: Why, in your view, has this become such a hot button issue at colleges and universities today?
Stanley Fish: In colleges and universities, what we have is a rebellion on the part of some students and some faculty members against the traditional academic rules of engagement, which to some extent mirror traditional first amendment obligations, in that everyone should have a hearing, all points of view should be heard and discussed, and none should be sent away or demonized in advance. There are a lot of students in our universities today, and as I said, some faculty members, who believe that that simply is a device for allowing ideas that should not be expressed to gain a platform. Racist ideas, antisemitic ideas, homophobic ideas. And they believe that those ideas, rather than being candidates for entry into the marketplace, should be excluded from the marketplace from the beginning. And that’s the battle that’s going on on campuses right now, where, as I said a moment ago, the traditional rhetoric of freedom of speech is very much under attack.
Jeff Schechtman: And within that context, it seems to go against the idea of the college or university as a kind of marketplace for ideas. The whole reason something like tenure, for example, was created, was to allow that marketplace to exist.
Stanley Fish: Yeah, what you have in the university is a set of processes, like tenure processes and other processes having to do with hiring and promotion and dismissal, designed to prevent institutions from disciplining people because of their political views. If you’re a university or a college, you discipline or dismiss faculty members because their scholarship is shoddy, because they practiced plagiarism, because they haven’t shown up in class or haven’t given enough attention to the papers of their students. All of those professional reasons. It shouldn’t be, and this is a traditional point, it shouldn’t be the case that a reason for you being disadvantaged and even fired are the political views you happen to hold, but that’s changing.
Jeff Schechtman: And talk about the way that’s changing and the broader context of this idea that somehow free speech was always some kind of an academic value.
Stanley Fish: Well, free speech is not an academic value. Free speech is a democratic value, that is a value that is attached to the idea that every citizen has a voice and that voice has an equal right to be heard. In the academy, almost the reverse is true. The voices that are heard are the voices that have passed muster, the series of committees with deans, with provosts, with presidents, with the editors of academic journals. All of those offices and persons are in the business of excluding speakers rather than enlarging the pool of speakers. And that’s what I mean when I say that free speech is not an academic value. Freedom of inquiry is an academic value, but in order for freedom of inquiry to go in a successful direction, that is in the direction toward the identification of the truth, you have to have devices for excluding people whose research methods or knowledge of the field mark them as unworthy of inclusion.
Jeff Schechtman: This phenomenon that’s taking place in colleges and universities, is it a recent phenomenon in your view, or is it something that’s been lurking for longer than we think?
Stanley Fish: It’s been lurking forever. That is, in the 19th century when many of our colleges and universities were established by churches, there were many politically inspired sanctions against instructors who said things that the founders of the institution would not have agreed with. And a little later on, boards of trustees began to play the same role. And there have always been a number of constituencies that want to influence and indeed, to take over university procedures with the idea of making the university into a mirror of their own views. And these include corporations that provide funds, parents, ordinary donors, of course politicians, all of whom in their various ways and at various times with various rates of success, have tried to substitute their point of view for the university’s point of view. Of course the university’s point of view is, or should be, that all points of view deserve a hearing and if after having been heard, the point of view is found to be illegitimate, of course it is sent away. But that’s quite different from making the university into a theater or a mirror of your own partisan views, whatever they might be.
Jeff Schechtman: How does this play out from here, do you think?
Stanley Fish: I think unfortunately that the, what’s been called derisively by the right, the woke culture, is now strongly entrenched in many, not all universities. Probably less entrenched, let’s say, in community college and state colleges than it is in liberal arts colleges and in important state-sponsored universities. But in that higher echelon of colleges and universities, I would say that the program or agenda which wants to make the university a spokesperson for virtue is very much in the ascendancy. And of course, in order to do that, you have to decide which positions are the virtuous ones. And once you’ve decided that, you can then decide which speakers can be heard, which professors should be hired or fired, which courses should be given or not given, et cetera. And I’m afraid that this process is very much advanced.
Jeff Schechtman: And does it reach a point, though, where it just collapses of its own weight, that it just gets carried too far?
Stanley Fish: Well, I think it’s carried too far the moment it begins.
Jeff Schechtman: Right.
Stanley Fish: That’s my view. But I remember back in the eighties, seventies and eighties, which was a milder version of the campus atmosphere we have now, people were always standing up at meetings to denounce their colleagues because they had detected, in the writing of their colleagues, dangerous hostages to the old conservatism, which must be expelled at any cost. At the time I called that the “lefter than thou” move. You got up and after someone has given a paper or made a remark at a conference, you denounced him or her for not being sufficiently to the left. Well, I think that’s happening now with increasing speed and what it means is that more and more bodies of materials, texts, subject matters are coming under suspicion. And in the end, as others before me have said, there will be nothing left because everything will have been declared tainted.
Jeff Schechtman: Right. And that period of time in the seventies and eighties that you’re talking about was even before things like safe spaces and trigger warnings that we hear about today.
Stanley Fish: Yes. Well, all of that vocabulary, safe spaces, trigger warnings, cultural appropriations, micro aggressions, and the rest, they’re again all ways of turning the university into a place where only certain ideas and points of view are allowed a platform because it is assumed and advanced that those are the points of views that virtuous people would, in fact, have. And if you don’t have that point of view, you’re not a virtuous person and there’s no reason for us to treat you fairly or to treat you at all.
Jeff Schechtman: Talk about the way in which you think that this bleeds into the larger culture right now. Is it the culture that’s feeding into what’s happening at the universities, or is it the other way around?
Stanley Fish: I think it’s the other way around. I think that the university is exporting this set of ideas, although there is, of course, some receptivity to those ideas on the side, for example, of the protestors who have been so prominent in recent months. I have more sympathy at least of an abstract kind with those protestors than I do with the student protesters, because the protest is that we’ve seen since, especially since the death of George Floyd, are protesting against rules and regulations and bodies of law that are demonstrably broken and not working in the direction of justice as they promised to be. So I would make a distinction between a set of ideas that is operating in the political sphere under the name of the achievement of justice and a set of ideas that is operating in the academic sphere under the name, as far as I am concerned, of throwing out everything the university has ever stood for.
Jeff Schechtman: Do you think that there is some reckoning coming with regard to all of this, that it will enable us at some point to better define, better understand what free speech should mean?
Stanley Fish: No. I don’t think we’ll ever do that. I think that because, as I say many times, free speech is not a single thing, not something that you can point to and isolate. Its shape and the effects of affirming it will always be different. And I think that’s what’s going to happen, as it has happened. What is understood by free speech, what is understood to be the benefits or non-benefits of free speech will be continually changing and a matter of debate. I would add that the free speech question in general has been very much changed or even transformed by the success and pervasiveness of the internet. It used to be the case that speech was a scarce resource, and that it was feared that some entity like the government would, in fact, hoard the resource and deprive individual citizens of their share of that resource.
Stanley Fish: Now there is nothing scarce about speech. Anyone can set up a website or a podcast, and the means of doing so are many and the extent of the reach of these vehicles of communications is literally illimitable. And what that means is that the more speech you have, which is the old first amendment ideal, we should have more and more speech, now that ideal has been realized and the result is an inability to tell the difference between forms of speech that are reliable and authentic and forms of speech that are corrupt and as they say, fake. So that I think that the free speech landscape is entirely different now that the internet is so much a fact of life for us. And you see Facebook, Twitter, and other large platforms wrestling with this question as they attempt at the same time to be true to their freedom of speech principles, at least as they have been declared, and yet they don’t want to become the receptacle and conveyor of lies, distortion, and let’s say the word, filth.
Jeff Schechtman: I mean, it’s as if the marketplace of ideas that you talked about before has become some wide-open bazaar.
Stanley Fish: Absolutely. We now do have the marketplace of ideas. Before it was just an abstraction. No one could find it. You couldn’t visit it or ask what it’s hours are. Now, that marketplace of ideas is everywhere, and it’s always open and everyone has access to it. And that was the old dream of first amendment theorists, that no bars, no impediments, no gatekeepers, no filters, just speech allowed freely to be produced and freely and widely, in fact, universally to be disseminated and then the truth would emerge. Well, that’s not what’s happened.
Jeff Schechtman: Perhaps the original free speech advocates, the original first amendment advocates would be pretty shocked by the way it’s turned out.
Stanley Fish: Well, of course, imagining what the founders, the writers of the constitution would have thought is a cottage industry.
Jeff Schechtman: Right.
Stanley Fish: It’s a game. But of course, we have to realize that these men, and they were all men at the time, were extraordinarily brilliant. And if they had been able to foresee some of the things that would have happened, they would have been able to adjust their formulas and codes and rules to it. But I myself don’t much believe in the asking the question, “What would Madison have said?” Or “What would Jefferson have said?” I’m more interested in the question, “What is the Supreme Court saying today?” And of course on this particular day, Supreme Court is saying a lot.
Jeff Schechtman: Professor Stanley Fish. I thank you so much for spending time with us. I really appreciate it.
Stanley Fish: Well, thank you, Jeff, and I’d love to come back anytime.
Jeff Schechtman: Thank you. Appreciate it. And thank you for listening and for joining us here on radio WhoWhatWhy. I hope you join us next week for another radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you liked this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.

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