Steve Sachs Duke


Thursday, June 26, 2003


Fish on freedom. A friend of mine recently sent me a column written by Stanley Fish on the First Amendment and college campuses. Fish complains that the notion of free speech has been woefully misapplied in campus politics, "pressed into service at the drop of a hat" in controversies that pose no First Amendment issue whatsoever. When a student-run newspaper chooses to print or to cut an offensive article, or when a university edits its fundraising letters to be politically neutral, or when Harvard's English department chooses to invite--then dis-invite--then re-invite--then delay indefinitely the invitation of Oxford poet Tom Paulin, these private parties are exercising their own judgment as to what messages they want to forward or associate with. The First Amendment may protect unpopular as well as popular speech, Fish writes, "[b]ut what it protects unpopular speech from is abridgment by the government of its free expression."

Although I'm not a big fan of some of Fish's earlier work, he's clearly right on the law. The freedom of speech guaranteed by the First Amendment deals with government restraints or mandates on expression, and nothing but. An individual decision of editorial judgment can be neither defended nor criticized on the basis of First Amendment obligations.

But while I agree with many of Fish's points, his argument rings a bit hollow, in that it fails to recognize any common thread running between the cases of individual judgment and the cases of censorship by the government. While the former have no relation whatsoever to the First Amendment's legal guarantees, they do have some relation to the philosophical background that explains why something like a First Amendment might be a good idea.

Many defenders of freedom of expression start by placing value on diversity of expression. They argue that it's a positive good to have a lot of different viewpoints represented in the 'marketplace of ideas,' because that way the truth will be well-tested against error. And it's clear that this diversity can be threatened just as much by systemic self-censorship as by systematic state censorship; in either case, the flow of ideas into the public square will be restricted. (This assumes that the self-censorship is based on the position taken, not the quality of the argument or its appropriateness for a given forum.)

Now, it may be possible to come up with a defense of the First Amendment that doesn't value diversity of expression for its own sake. One such approach would be absolutist: it would claim that it's just wrong, in itself, for the government to prevent individuals from speaking. Censorship might imply a certain disrespect for their humanity, treat them as a means only rather than an end, etc. But it's not entirely clear why this argument wouldn't apply to collective and informal censorship by society just as strongly as specific and formal censorship by the state. This is especially true if the social conditions that allow for informal censorship--e.g., he owns a printing press and you do not--are backed up by law.

A second approach would see the freedom of speech as a purely practical measure. If the government were able to restrict or mandate certain types of expression, the argument goes, then presumably it would encourage only as much speech as serves the interests of the party in power, and the democratic process would be rendered ineffective. Thus, even if we think that speech has no inherent value, there might be reason to stop the government from regulating it. There's a clear analogue to this argument with respect to freedom of religion: certain religions might very well be silly or not worthy of being allowed in society, but that government involvement in religion would simply become so messy (cf. the persecution of the Huguenots, the investiture controversy, the Taliban) that it's better not to touch the subject in the first place.

But the analogy between speech and religion eventually breaks down. In the case of religion, it doesn't particularly matter if one faith is socially dominant, so long as its devotees are unable to use the coercive power of the state against the devotees of other faiths (or of none). The goal of avoiding religious wars can be achieved regardless of the absolute number of different religions represented in society. In the case of speech, however, the goal of a well-functioning democracy isn't necessarily achieved simply by government neutrality. Imagine a society where the First Amendment is strictly adhered to, but all of the mass media outlets are controlled by private parties who happen to be sympathetic to the government's position. If no one is willing to print material criticizing the government--not because they're afraid of coercion, but because they think it would be disloyal or they simply don't agree--then the democratic process will be just as flawed. The very purpose behind restraints on government censorship requires a diverse marketplace of ideas to be fully realized.

So while Fish is technically right to say that "no one is silenced because a single outlet declines to publish him," there is reason to believe that if every outlet declines to publish (or at least every outlet with a reasonably-sized audience), something might be lost. This coordination problem produces in many editors a general sense of obligation, that newspapers and the media as a whole ought to provide a forum in which many viewpoints can be represented. This helps explain why liberal editors on an Op-Ed page occasionally print well-argued conservative pieces, and vice versa. The pressure to maintain an open forum is especially strong on a college campus, where a single daily newspaper might enjoy a near-monopoly of the public square.

This argument doesn't imply that any contribution to the marketplace is to be valued; sophistries and falsehoods don't improve public discourse, and if every editor just happened to 'guess right' when assessing stories, the world would be a better place. It also doesn't imply that newspapers must always publish different viewpoints, no matter how much they disagree. Given the current state of communications technology, the immense variety of publications and media outlets, and the increasing availability of web sites and vanity presses, claims of 'silencing' are much harder to make. But this argument does explain why, when editors aren't sure that they've guessed right, they might feel a moral pressure to let another viewpoint through--and why appeals to 'free speech' might have some force in shaping our individual judgments.




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