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    Fish - FreeSpeech PDF

    Hochgeladen von

    danielschwartz88

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    © All Rights Reserved
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    There’s No Such Thing as Free Speech and it’s a Good Thing, Too STANLEY FISH New York _ Oxford ‘OXFORD UNIVERSITY PRESS. 1994 There's No Such Thing as Free Speech, and [1's a Good Thing, Too Nowadye te Fit And i te Ft Refige of Seruaes, Lely, many on the Iiberal and progressive lft have been disonced to find that words, pss, and concepts thought to be thelr propery and erative of their poiies have been appropriated by the forces of neocon- Servatsn. This i parulrly rye ofthe concept of fee speech, fr fo ‘Recnt years Fast Amendment eetric hs been wed to jut poicis and ‘eons tbe left finds problematical i ot aborent.porograhy, exist Tanguage, carpus bate speech, How has his happened? The answer I shall, ‘ve inthis essay is that bse conepts ike fie pecch do nt have any ata coatet ut ate filed with whatever coset an diection one can manage t pat iat them. "Free speech” jst the name we giv 10 ‘verbal behavior hat serves the substantive agendas we wish 10 advance, tnd we give our prefered verbal behaviors that mame when We can, when ve ive the power t0 do so, because inthe etorie of American lif, te Jab “fee spec” the one you wat you favors to wer. Fee speech In shor, snot an independent value bot apoical pie, andi tht prize as boea captured by a polities opposed t yous, t can no longer be in- ‘voked in ways that free your purposes, fort snow anole thse Purposes. This is something that he ber left has yet o understand, and ‘what follows is an anempt to py is memes lose from vocab that ‘may now be a dservie to them [No fr from the end of his Areopagiica, and after having celebrated ws No Sch Thing As Fe Speck an I 8 Good Tig" een 102 ‘There's No Such Thing as Free Spech, and i's a Good Thing Too | 03 ‘he vires of toleration and unregulated publication in passages tht find their way into every discussion of fee speech apd the Fist Amendment, John Milton cates himself up shor and says ofcourse I dia’t mean Catholics, them we exterminate: {ean oot kt pope, a open pentin, which cites all ‘igo and hl premio shal bette to wich mpi oe aly ast thr mmm ola a poss peri [Notice tat Mion is aot simply plating single exception t 2 rue _snealy n place he kins of trance that might be replated an even [pobibiedon pin of ial and punishment consti an open 2; popery i ‘tamed only a x paral persica instance ofthe advocacy tht car ‘ot be tolerated, No doubt tere are edhe forms of speech snd action tha smight be eaeporized as "open suprstdons” of as sabvesive of pity, {ath and manoers, and presumably these too woul be candidates ft ex. ‘pon. Nor would Mikon think himself culpable for having fled 0 vie ais of unprotected uteranes, The it wil itself om os ue sacs are put tthe test implied by his fommelation: woul this frm of speech or advocacy, if permited 10 flowish, tnd to undernine the vey Purposes for which our sity is consiated? One eatao niwer thi her on with respect to a pancuarutevance in advance of is emergece 08 the world’s stage; rather, one must wait ad ask the question ia the fall, cont ofits production and (ossibe iseminaton. Tt might pear at the esl would be ad hoe and nprncpled, bat for Milton the principe Inhers inthe core vals in whose name inividuls of like mind cane ‘opeter in the fst place. Those vale, hich nlade te serch fr th ad the promotion of vinue, ae espacious enough wo acommodate a di ‘esi of views. But at some polntgain impossible of advance specif ‘ation —capeciousoss wil tireten to become shapeesnes, and a at ot eit othe ginal values will deund acs of extirpation Tanto sa that all afirmations of feodom of expression are like Mi ton’, dependent for tee frce onan exception tat cally carves out he Space in which expression ean then emerge. donot mean that expression (Gaying something) 52 realm whose integrity i sometimes compromised by cern restrictions bu tht restriction, inthe form ofan underlying ‘cution ofthe word that neces (i lent) neg altemaively pos sible arcultions is const of expesion, Without restcton, without init sense of what it would be meaingles to say or Wrong f0 5, ‘here could be wo assertion and no reston for atserting The exception 0 uegulted expression is ata aopaive resticion bu a postive hollowing 104 ) There's No Suk Thing ax Fro Speech ‘ut of value-we are fr shi, which means we ae aginst hatin elation {0 which meaning assertion can thea occur. Ie in reference fo that ‘e—consiaued sl vals sre by an act of excton—tht some forms of spech wil be heard as (quite itera intolembe. Speech, in shot, is rover a vale in and of ise uti always produced within the prcints ‘of sme assumed conception ofthe god to which mus yield inthe event of conte. Wea the pinch comes (a! soner oar wll bays come) ‘andthe insitaton (bei church, st, or univer) is confronted by be- havior subversive ofits core eaorle, i will respond by declaring "ot eurse we mesh not tlerted —, tht we extpate," not Devaar an ‘exception ta general feedom has sudenly and contradictory ben a ounce, but because the feedom has never been peneral and at aly ‘een understod against the Background of at orignry excision ta ives itmeaning ‘Tiss lnee hss, but before tackling it rc Iwan to bates my ‘case with anobe example, taken not rom he severe etary bt fom the charer and cine law of Catads. Canadian thinking about feedom of ‘xpesson departs fom the line usually taken inthe United States in ways that ring hat eounty very close w the Arvopagica as Uhaveexpoaned it The diferences are fully on display in a recat landmark case, Rv ‘Keegira. James Keapta was a high shoo! teacher n Aleta wh, i ‘atblisied by evidence, “systematically denigrated Jews and Suis in his clases." He desorbed Jes at teatro, eubversv, sat, mney loving, power hungry. ad eid killer. He declared them responsible for depressions, anarchy chaos, wars and revlon” and requ his ie ens “to rgungate these notions in essays sd examinations” Keegstra ‘as ndivted under Section 3190) ofthe Criminal Code and convicted, Te (Court of Appel revered, and the Crown appealed to te Supreme Cou, which ensted the lower court's verdict. ‘Section 319() resin pat, “Euery one wh, by communica sate- mens otber thn in pevat conversation, willy promotes hated agains ny identifiable groap is gully of . «an indictable offense and is lable to imprisonment far a ern at exceding two yeas." Inthe United States, ‘his provision of the code would almost ceraily be sick down because, ‘under the Fist Amendment, resctions on speech ae apparent probit ‘without quaifeton. To be sure, the Canadian chai has is ow version ofthe Fist Amendment, in Seton 2(b "Everyone has the flowing fan- amenal feedoms - -(b) eedom of thought, ele, opinion, and expression, including freedom of the press and other media of commie tion.” But Seton 20) ke every ee section ofthe carer, squid by Section I: “The Canadian Charter of Rights and Fredoms grantees the rights and feedoms set ou init subject only wo such resonable ite There's No Such Thing as Free Spcch, and Is © Good Thing, Too / 108 ‘prescribed by Iwas canbe demeonstably juste in fee an democratic society." Orin oer words, every right nd freedom herein grated can be trumped i is exereise is found tobe in confit with the pices that “underwatethe sky “This is what happens in Keegapa asthe may Shs hat Secon 3182) ‘of te Criminal Coe does infact violate the ight of fcedom af exesion ‘uszsted by the charter bet is revertcless a permissible resticton be: aus it acozds with the petiplesproclimed in Section 1. Thee iy of ourc, a dseat tht reaches the coauson tat would have been reached by moat, if ot all U.S. cours Bat eve in dst the misty is Eta 10 Canadian waysof reasoning. “The qesion,” i declares, "i always fone of balance,” and thus even when parclar infringement ofthe har ‘e's Seton 2(0) as been declared uoconstntional, a i Would bave been by the minority, the question remains open ith repect to the neXt eae ihe United Sates the question is rested closed and can nly be pred open by special tools. In our legal clue asi pow conte, fone yells “fe speech in a erowded coum and makes i sick, the ese i ‘OF couse, is not at simple. Despite the spparet absolutes of he First Amendineat, there ar ay numberof way Of peting wound aye that ae known to every sient ofthe law, In sent the prefered sa ay i to manipulte the dsineson, essential t Fst Amendment jaripr- dene, between speech and ation. The distin is essential because no onc woald think t0 fame a Fist Amendment tht begnn "Congress shall ‘make no law abiding feedom of acon,” for tht would smut f 39- ing "Congres shall make no aw," which would amount to s3)ng "Tere Shall be o In," only actions uninhibited and unregulated. Ifthe Bint ‘Amendment st make any sone, have any bite, spech most be declared ‘otto bea species of scion, ort be a special form of ston lacking the aspects of action that cause i 10 be the object of regulation. The liter strategy isthe favored one and usually involves the separation of speech fom consequences. Tis i what Archibald Cox docs when he aig © the Fist Amendment te job of protecting ‘expressions separable from conduct hari to other individuals and te community" The dca of managing tis segrepation is well known: epech alway seis to be crossing the line it ation, where it hecomes, least poten, cons (quent. Inthe face of this eaegoria instil, First Amend theo. ‘st and jurist fashion 2 distoton within the speeclaston dition some forms of speech are nt relly speech because their purpose Isto Incite violence or beease they ae, 25 the court declare in Chaplin ‘New Hampshire (1942), “sighting wor,” words “ely to provoke the tverage person to listo, and thereby case a beach of the pace.” 1061 There's No Such Thing as Free Speck ‘The trouble with this defnion is hat it dingushes at between fight- Jing words and words that emain safely snd merely expresrive bt between ord that are provocative to one group (te group tht falls under the rubric “average peson”) and words that might be provocative to other ups, groups of persons not now considered average And If yu atk what, ‘words ae likely 19 be provocative to those nomverage aus, what ae likey 0 be thei fighting words, the answer i anything and eveything, fOr 1 Jstice Holmes said lng ago (a Gio v. New York, every ea ean Inctementt somebody, and ine ideas come pucaged in sentences, in ‘word, every sentence it potentially, in some situation tht might occur Tomorrow, a fighing word ad therefore s candidate for regulation ‘This insight cuts two ways. One could conclude fom i that he Sting ‘words exception is «Bad en because tere no way to prevent clever and ‘unseepulous advocts from shoveling so many forms of speech int the excepted category thatthe 2ae of constiasonaly protected speech erik to noching ands fclly without inant. Or, aleraivey, one could conlude that there was never anything in the zone in he fs lace and that the aiicalty of Hnitng the fling words exception i tecly par ticular instance ofthe general duly of separating epech fom action, [An if one ops for this second contusion, as Ido, then farther conch sion is inescapable: insofar asthe point of the Fest Amendment io idem ‘iy speech separable fom conduct and fom the consequetees tht come in conduc’s wake, tae io abeh speech and therefore nothing forthe Fis Amendment o protect Or, maketh pin fom the ter dieton, ‘when court inal leglton becuse inns on pod specch, itis not because the speech in question i without consequence Dut bec the consequences hae been dtcounted in elation to g00d tht is judged to outweigh them. Despite wht they ay, cours ae never nthe bane of protecting speech prs, “mer speech (a nonexistent animal}; rather, they ace inthe business of casifying speech (ts protected or roglable) in lation to 1 values health ofthe repablic, the vigor ofthe exonomy, the maintenance ofthe satus quo, the undoing ofthe Mats gota i ‘the oun if unacknowledged, objec oftheir protection, ‘But if this isthe case a First Amendment purist might spl, why ot op the charade along withthe malleable sition tht mae i posible, land declare up font that wal freedom of speech i oe prmay valve and trumps anything else, no mater what? The answer is that freadom of expression woul only bea primary value i did't mater what was eld,

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