There's No Such Thing As Free Speech … and It's a Good Thing, Too. - book reviews

Reason, May, 1994 by Michael McMenamin

SOMETIMES YOU CAN TELL A BOOK BY its cover. So it is with the latest efforts from Cass Sunstein, a professor of law and political science at the University of Chicago, and Stanley Fish, an English professor and Milton scholar at Duke University who also teaches at Duke's law school. The titles of their books tell you most of what you need to know: Both are enemies of free speech as it is currently understood.

Fish is an academic who drives a Jaguar, disdaining what he terms the "ugly" Volvos and Saabs of his fellow professors; expects to be recognized by waitresses as "Stanley Fish, the guy who believes words mean anything you want them to mean"; never revises his first drafts; and candidly admits that his "forward time span is generally two hours. By that, I mean I tend not to think or worry about anything more in the future than two hours hence." Much of what Fish writes is not worth remembering that long anyway. One doubts he will have much impact on the future of free speech, except through those unlucky Duke students who happen upon his (elective, I hope) courses at the law school.

There is an ugly undercurrent to Fish's book, akin to intellectual McCarthyism. At one point, he attacks Nat Hentoff of The Village Voice, who writes frequently on the First Amendment. One of the most prominent civil libertarians in the country, Hentoff supports free speech and a free press even when they offend his own left-wing sympathies. So Fish calls Hentoff a "mouthpiece" for a "neo-conservative political agenda which is backed by huge amounts of right-wing foundation money provided by William Simon and others." Can't you just picture Bill Simon avidly reading The Village Voice? Elsewhere, Fish accuses Hentoff and others of "bringing a message a bypassed generation of academics wanted to hear: we will help you reclaim your legacy...we will put an end to the politics of race and sex on campus; we will put those women and blacks and gays in their proper places, at your feet."

I believe the precise intellectual term for all this is bullshit. It is, in a sense, a pathetic spectacle: an aging English professor driving a Jaguar to compensate for who knows what deficiencies and making ad-hominem attacks on free-speech supporters because, in the end, he really has nothing to say on the subject. Fortunately for Fish, Hentoff doesn't believe in defamation suits. The truth is, on the subject of civil liberties, Stanley Fish doesn't belong in the same sentence as Nat Hentoff.

Cass Sunstein is another matter. A well-known and widely respected constitutional law scholar, he writes clearly, probably doesn't publish his first drafts, and refrains from ad-hominem attacks. But like Fish, he labels his First Amendment opponents "absolutists" and tries to discredit them by arguing that the First Amendment doesn't mean what it says. For Sunstein, a telling point is that the First Amendment doesn't protect such "speech" as "price-fixing, contract making, firing someone for racial reasons, |or~ placing bets on horses." Because the First Amendment does not protect all "speech" (or what Sunstein tries to pass off as "speech"), the "absolutists" are only at different points on the same slippery slope as the "regulators." They simply disagree as to how far down the slope government should go in regulating the press and suppressing speech.

AND MAKE NO MISTAKE, GREATER GOVernment regulation of the press and more government suppression of speech are at the core of what Sunstein eloquently advocates in his book. Fish offers no similar solutions, content to attack the straw man of free-speech absolutism. Sunstein has been critical of Fish's halfway approach. In a recent review of There's No Such Thing As Free Speech...and It's a Good Thing, Too for The New Republic, Sunstein writes that "the failure of free speech absolutism does not mean that there is no such thing as free speech...instead we need to develop principles by which we run a good system of free expression. The whole question, a central one in contemporary democracies, is how to proceed when some distinctions are inevitable. About this question, Fish has little to say."

It's a good thing, too, because Sunstein has more than enough to say. Having the government rather than individuals "run a good system of free expression" is about as far away as you can get from the plain language of the First Amendment without repealing it altogether. If ever adopted by the legislative or executive branch and upheld by the courts, Sunstein's views would do considerable damage to individual liberty. But preserving individual liberty against the encroachment of government does not appear to be one of Sunstein's main concerns.

Sunstein bases his approach to regulating speech and the press on what he terms a "Madisonian conception of free speech." Madison, he says, placed a "high premium...on political (not economic) equality and on the deliberative functions of politics. He understood the free speech principle of the American Constitution, for which he above all was responsible, in the light of these commitments. It, therefore, seems reasonable to describe the Madisonian conception as one that associates free speech with his distinctive understanding of politics." But as with absolutist, Sunstein uses Madisonian as a handy label, rather than an accurate historical reference. He writes, "I do not mean to say that all of the arguments in this book are directly connected with the views and aspirations of James Madison."