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Fishing for the First Amendment Acad. Quest. (2020) 33:506–510 DOI 10.1007/s12129-020-09894-7 REVIEWS Fishing for the First provocative little book, the Amendment Floersheimer Distinguished Visiting Professor of Law at Cardozo Law in The First: How to Think About New York, whom its website lauds as Hate Speech, Campus Speech, “one of this country’s leading public Religious Speech, Fake News, Post- intellectuals, and a world-renowned Truth, and Donald Trump, Stanley literary theorist and legal scholar,”1 is Fish, Atria/One Signal Publishers, bound to raise the hackles of free 2019, pp. 228, $20.99 hardcover. speech advocates both within the Michael Rectenwald academy (however few they may be) Published online: 24 July 2020 ’ # Springer Science+Business Media, LLC, part of and outside of it. Fish s distinguished Springer Nature 2020 career as a literary critic, and his appointments in law at Duke University Stanley Fish’s The First: How to and Cardozo (despite having undertaken Think About Hate Speech, Campus no formal legal education), make Speech, Religious Speech, Fake The First an intervention into the News, Post-Truth, and Donald present-day free speech controversies Trump is an extended argument that begs for our attention. against what he sees as mistakenly Unfortunately, Fish’s new book does broad interpretations of the First little to clarify the issues and in fact Amendment to the U.S. Constitution, only compounds them by introducing a as well as its misapplication to parade of specious homologies and straw particular settings, especially the man arguments. With his characteristic academy (Chapter 3), and, in the case slipperiness, Fish is a sophisticated of religious expression, the public postmodern leftist who contrives sphere (Chapter 4). With this convoluted arguments for proscribing expression that he doesn’tlike. Michael Rectenwald is a retired professor of liberal Chapter 1, “Why Censorship is a studies at New York University, New York, NY 10003; [email protected]. He is the author of ten Precondition of Free Speech,” is books, including Nineteenth-Century British Secularism: Science, Religion and Literature perhaps the most annoying (Palgrave Macmillan, 2016), Academic Writing, installment of the book, although Real World Topics (Broadview Press, 2015), and Global Secularisms in A Post-Secular Age (De later chapters surely vie for that Gruyter, 2015). A prominent spokesperson for distinction. Right out of the gate, academic freedom and free speech, he has published widely and has appeared in numerous 1 “Stanley Fish,” Stanley Cardozo Law, national and international media venues. cardozo.yu.edu/directory/stanley-fish. Reviews 507 Fish argues that free speech is opprobrium and other consequences anything but free. It has costs, both cannot be precluded but banning for those who speak, and for those speech should be. Fish certainly whom it affects. Furthermore, it invites the latter. cannot really be defined. “As a Fish’s primary trick is to dissolve concept,” Fish claims, “it [freedom the boundary between speech and of speech] refuses to sit still and action, a typical leftist trope for remains elusive to the grasp no asserting that no such distinction can matter how closely and rigorously it be maintained: is examined.” (1) Throughout, Fish confuses the actual protections If speech can be categorized as enshrinedintheFirstAmendment “symbolic action” (because it itself with his own vague and fuzzy has an effect the state finds postmodern-inflected interpretations distressing) and action can be of it. The effect is to delimit the categorized as speech (because range of free speech and to abridge it sends a message the state the protections of the First wants to protect), isn’tthe Amendment. In the process, Fish distinction infinitely engages in the kind of sophistry for manipulable? How do you which postmodern theory is rightfully draw the line, and who should infamous. be authorized to draw it?(5, The first straw man Fish erects is emphasis mine). the suggestion that the First Amendment and its defenders posit a These are precisely the questions as free speech absolutism. According to far as free speech advocates are Fish, the First Amendment and its concerned. Certainly, the line defenders would allow a citizen “to shouldn't be drawn by authoritarian engage in speech without fear of activists or extrajudicial commentators repercussions.” (5) As any staunch like Fish. Thankfully, Fish will never free speech advocate knows, no become a Supreme Court judge. speech is consequence-free, and no Meanwhile, the notion that speech is serious thinker is suggesting that it “symbolic action,” andthatitcanand should be. Rather, free speech often becomes “discursive violence,” advocates maintain that one of the as some postmodernist theorists term consequences shouldn't be the it, is thankfully not legally prohibition of protected speech or its acknowledged in the U.S. punishment by the state or state- Like so many of his ilk, Fish’s enabled actors who effectively understanding of speech is based on function as state agents. Social confusing the right of expression and 508 Reviews the compulsion to believe and act more “harm” than potential action upon it: taken when sentiment is pent-up and denied expression. But how do we think about In Chapter 2, “Why Hate Speech those occasions when allowing Cannot Be Defined,” alabyrinthine speech to flow freely, no matter disquisition in which Fish draws on what its effects, causes harm to several leftist interpretations of hate others? Is that harm just speech only to find no definition, collateral damage, the The author nevertheless argues for necessary cost of doing First proscribing it, whatever it is, on the Amendment business? Are the grounds that it harms others. As it eleven dead in Pittsburgh turns out, the (non-existent) right not martyrs to the First to be offended trumps freedom of Amendment? Is the First speech, as Fish sees it. Amendment so basic a value Chapter 4, “Why the Religion that it must be upheld even Clause of the First Amendment when it appears to facilitate Doesn’t Belong in the Constitution” evil? (5-6) amounts to an argument against protecting religious expression in the It should be noted that the eleven public sphere because it cannot be Jewish victims at the Tree of Life deemed “special”—that is, it aims at Synagogue in the Squirrel Hill superseding but should not be neighborhood of Pittsburgh—quite allowed to supersede other forms of close to where I happened to have expression. Here Fish suggests that lived for many years—were the religious expression, such as bakers victims of a shooting rampage, not refusing to bake cakes for gay, of the First Amendment. Shooting lesbian, or transgender couples on others is not protected under the religious grounds, violates the First Amendment. It was not speech democratic principles of which free that killed them, but bullets fired by a speech is apiece. As such, the madman. How is the First religious clause principles in the Amendment to blame for someone First Amendment do not fit with the going on a killing spree? In any more general principles informing the case, Fish omits the fact that speech Constitution. Again, the argument that provokes incipient violence is involves erecting a straw man in already unprotected by the First place of the actual opposing Amendment. Furthermore, no one position. No reasonable advocate for has a metric for determining whether freedom of religious expression has giving voice to sentiments causes declared that such expression should Reviews 509 have priority or superiority over other Darwinian, the survival if not of the expression. Those who engage in fittest then of those who still have a religious expression may deem it place at the table after all the votes superior to other expression, but the have been taken.” (66) But true same can be said of any other speaker. Darwinian inquiry would Who doesn’t believe that what they nevertheless admit actual say or believe is right and thus better competitors, an initially democratic than other beliefs or expression of “inclusion” of diverse standpoints. others? Fish would have religious Fish’s formulation would (and in belief confined to the privacy of the practice does) allow for the home and church, a clear curtailment elimination of competitors in of the individual rights of religious advance, all but guaranteeing the believers. kind of ideological homogeneity that Chapter 3, “Why Freedom of rules the roost in academia today, Speech Is Not an Academic Value,” allowing rather specious claims, will be especially interesting to such as the belief in gender readers of Academic Questions. pluralism, to go uncontested. Here, Fish draws a line between free Cherry-picking the American and open inquiry, and free speech. Association of University Professors The latter, he argues, has no in their 1915 Declaration of relevance in the academy. One Principles on Academic Freedom wonders what value free and open and Academic Tenure,2 (67) Fish inquiry could possibly have in the conveniently omits the fundamental absence of freedom to express what statement of that declaration the inquiry yields. regarding free speech, which I have Fish argues that the academy is an previously cited in this periodical: institution for knowledge production “Genuine boldness and thoroughness and that only some, well-vetted, of inquiry, and freedom of speech, are expert opinions are viable and scarcely reconcilable with the worthy of attention. The issue, of prescribed inculcation of a particular course, is the domination of a opinion upon a controverted particular perspective, so that some question.” 3 Contradicting the views are deemed unworthy of document he supposedly agrees consideration from the outset. with, Fish insists: Democracy and its attendant freedom of speech have nothing to do with the academic enterprise, 2American Association of University Professors, 1915 Declaration of Principles on Academic according to Fish.
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