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Postmodernists Against Free Speech

Those who complain about the current social and intellectual atmosphere in the academy are generally pretty sure of just one thing they’re for and just one thing they’re against: They’re for free speech, and they’re against postmodernism and critical theory.

Now, it’s not always clear what is meant by those things, or why they should be natural opponents. But sometimes the inspiration, if not the underlying logic, shines through — as in the case of two recent books by two academics who could quite fairly be called postmodern theorists. One is Ulrich Baer’s The other is Stanley Fish’s . (That sure is a lot of topics to tell us “how to think” about!)

Baer’s  seems to have been hastily assembled based on a single article (of the same title and in  ’ so-called “philosophy” section, The Stone) that inspired some agent or publisher to tell Baer that a book “expanding on” or “extending” or “elaborating” the article should be forthcoming.

What a terrible idea!

The first typo comes on the second page, and the prose is the vacuous charlatanry typical to the genre. We hear, for instance, that “free speech is woven into the fabric of our society.” But, “by leaving open where the line should be drawn … the Founding Fathers allowed this concept to serve our evolving nation remarkably well,” since free speech “issues cut across legal, political, and cultural considerations.” The writing has the feel of an undergraduate attempting to meet a word count.

Baer’s particular focus is campus speech and campus controversies. Baer notes condescendingly that “many legal experts believe that the First Amendment is not the correct lens through which to view or resolve these conflicts, not even for public institutions.” Baer can’t actually engage these debates; he doesn’t know anything relevant to them. He tells us that “campus controversies are instructive for anyone wishing to defend our personal liberties in a strong democracy based on equality.” Instructive how? That question is left unanswered.

These controversies also “foreground” — yes, as a verb — “the complicated and inextricable link between freedom and equality.” Of course, many people think that freedom and equality are not linked but rather in tension. This is a deep debate in political philosophy (between, say, intellectual descendants of Tocqueville and intellectual descendants of Rousseau), a debate to which Baer adds absolutely nothing. But never mind. This talk of a “lens” and a “link” and what’s “instructive” substitutes for clear language stating some sort of thesis. Virtually nothing is ever said at all.

Baer goes on to tell us what these campus controversies are “about” (and later, talks about how campus controversies are “framed”). “About” — a word whose mushy usage I’ve criticized here at  before — is a term like “lens” and “link.” It doesn’t really make a claim —  — but attempts to push the reader into something — .

So, what are campus controversies supposedly about? They’re “not about the First Amendment, or anyone’s inherent right to free expression. They are about power. … Most significantly, they are not about offense and resilience, or victims and whiners.” It’s funny, and telling. The opponent of free speech, in a book opposing free speech, doesn’t seem to be able to get past that infantile howl: 

But Baer’s book is not just dumb, it’s also a bit troubling. He writes that if you don’t say whether you agree or disagree with someone, then “condoning someone’s right to speak, purely on principle, looks like endorsing the speaker’s message.” Looks that way to whom? And what does “purely” add here? Are principles supposed to be bad now? What precisely is going on in the author’s head?

He goes on to repeat yet another cliche: that free speech is being “weaponized” by those with whom he disagrees. He asks: “Should equality be a debatable principle? Or is Jefferson’s notion an absolute value and non-negotiable precondition of social interactions, in addition to being our nation’s law, to which all Americans must consent?” What exactly do these sentences mean — in particular, what does the phrase “must consent” indicate? Equality is a principle that is constantly debated in the university — not just whether equality is a good in itself (some ethical theories say yes, some say no), but whether equality is possible to achieve or even coherent as an idea. Baer never answers his own rhetorical questions. Again, they are meant to push the reader around, not to persuade them of anything or to present any sort of case.

The view of the academy Baer claims to hew to is ridiculously idealized. And it is, ironically, exactly the view of intellectual life that his critical theory-wielding cohort has entirely dismantled over the past fifty years or so. He writes that “the campus speech controversies center on the role of the university as gatekeepers [sic] to reliable knowledge, and as  in a democracy,” and that academia’s “fundamental principle is not to let  decide what counts as reasonable and what is merely bunk.” (He says this despite citing Foucault approvingly in the same book! I mean, come on!)

This is reminiscent of a book on “conspiracism” I reviewed in the spring. Academics who view their intellectual lives as merely a service to some partisan political project then get all up in arms when anyone outside the academy notices, and they start worrying about the devaluation of their “expertise” and so forth. They think they deserve a public trust they have adamantly refused to earn.

This is all just in the introduction. But don’t worry: the whole book is just the ideas I’ve mentioned so far, repeated in various different ways. Insofar as anything resembling an argument seems to rise from the slop, it’s something like this: The university has a certain , and part of this purpose involves (a) rejecting some ideas and (b) treating all university members as equals. Well, almost nobody denies that a university has a purpose. (Though almost nobody goes on to say, as Baer does, that “speech regulation is the university’s very business.”) It’s just that most people also don’t think Baer and his academic bedfellows do a good job of deciding which ideas ought to be rejected.

Does Baer present any evidence that he or anyone he knows is any good at “vetting ideas,” as he puts it? He’s a professor of comparative literature. Do you think the ordinary American thinks Baer is better or worse than the average person on the street at recognizing and rejecting nonsense? There’s no mention in the book of the replication crisis in social science, including much social science which was explicitly touted as serving progressive political goals. But that crisis is one reason why, far from seeing academics as fighting bunk, plenty critique academia as a place where nonsense is actively fabricated or at least promoted.

The university actually has at least four “purposes.” And they are, like freedom and equality, not “linked” or whatever but in tension. Those purposes include (1) producing academic research and giving a home and community to intellectuals who are trying to figure out the truth, (2) teaching the academic state of the art in various fields to young people, (3) preparing young people for the job market and providing them with a certain kind of credential, and (4) providing young people with a certain kind of atmosphere in which they can develop socially, often experimenting with things like drugs, sex, and politics in a safe environment. It’s easy to see how these purposes come into conflict with each other.

Much of Baer’s argument is based on the notion that the viewpoints he doesn’t like have no evidence for them. But Baer is the one who seems to know nothing about the topics he discusses. He writes things like: “The notion of innate racial and gender inferiority was laid to rest by many scholars, including the evolutionary biologist Stephen Jay Gould in .” Actually,  is not accepted as anything close to authoritative by university scholars in the fields it’s about (Baer’s own standard for knowledge). And in any event, it’s a book about intelligence and its measurement, not about group differences .

But I think Baer knows what he’s doing. At times, he’s very clever with his wording, seemingly intentionally narrowing the literal scope of his discussion so he’s technically right — but only technically. He goes on to write: “No science curriculum denies the difference between men and women.” That’s true — . What about the rest of the university? What about furious reactions to claims that , not , might differ between men and women? What about people like Baer himself, a comparative literature scholar, spouting off in an Oxford University Press book, about topics like law and biology? If he’s such a fan of expertise, why is he so concerned to involve himself in these debates, rather than sticking to debates about, say, Rilke, his actual area of specialty?

But even when it comes to topics he ought to know about, Baer seems to write more or less gibberish. He tells us that critical theory can help us understand the debate about free speech in the following way: “The academic fields of critical legal and race studies, as well as feminist theory and other schools of scholarship on free speech, add nuance to the positivist legalistic view on free speech. … Via methodologies such as balancing, perspective-shifting, and sociological approaches, [they] interpret the best ways our laws should let everyone flourish in our democracy.”

What’s so great about “nuance”? (“Fuck nuance,” sociologist Kieran Healy put it.) And what does it mean to “interpret the best ways our laws should let everyone flourish”? Is that even grammatical? Baer never even explains what these methodologies are. He just lists the same scholars, page after page, without even describing their work, let alone making an argument in favor of it.

Again, one gets a vision of a word limit, a deadline, Baer sweating as he types late at night in a dorm room, worried about some professor who’s known as a harsh grader.

Baer writes his second claim in various ways — over and over, like some sort of hypnosis, like every claim he makes in the book. A section of the first chapter is called “free speech is grounded in equality,” but then the third chapter is called “free speech is rooted in equality.” Do “grounded” and “rooted” mean different things, or did nobody edit this book? Anyway, it’s simply not clear why this would be the case. Baer makes no real argument for it. Here are two reasons we might think it’s  the case:

First, in general, freedom and equality often seem  to be in tension. If speech, for instance, is free, then those speakers who are the most eloquent, intelligent, or whatever else will get an unequal share of speaking time and attention.

Second, to mirror Baer’s argument that the university relies on the regulation of speech, the university also obviously relies on inequality. Professorships are tiered, and undergraduates sit and take notes, to then be graded, rather than taking the stage of the lecture hall to expound on subjects with which they have only a passing acquaintance. Students do not grade their professors’ papers. And if they did, nobody would care. Academic conferences have star keynotes, graduate programs and professional journals are ranked, and so on. In what way, then, does equality of expression characterize anything about the university? None. Further, since Baer’s whole idea of the university is founded around expertise, why would we think it makes any sense to treat students as equals? Why would student “equality” be even a remotely appropriate “lens,” to use Baer’s term, through which we would view academic life?

Baer doesn’t really give an argument that freedom and equality are interdependent. As with “lens” and “about” and “framing,” all he seems able to do is attempt to bully or confuse the reader into accepting his opinion: “We should see free speech and equality not in opposition … but as inextricably linked in the functioning of the university. Once we recognize this interdependence of academic freedom and equality in the university, of free and even contentious debate with participation on equal terms, it becomes possible to disentangle the vexing issues found in campus conflicts.” This sort of sentiment, “once you adopt my view, you’ll be able to solve these difficult issues,” occurs about a hundred times with only slight variations in wording in this repetitious slog of a text. But it’s not clear either that any “disentangling” of “vexing issues” is forthcoming. Freedom and equality are two goals. And, at best, Baer has offered the bare assertion that one of them is more foundational and, apparently in virtue of that, more important.

Later, Baer does write that “if a speaker is not regarded by law and public sentiment as equally human, his or her speech, regardless of content, is the  of the event of free speech where free speech does not exist yet in a meaningful sense.” This is the closest he comes to some sort of substance in this regard. But the ridiculous phrase “the production of the event of free speech,” no doubt indicative of Baer’s lit-crit approach, serves to cover for a strange fact: Baer thinks that one has free speech not  but .

Strangely, though, this is precisely the vision of free speech on campus that Baer disdains. One is left with the impression that Baer does not have, or does not want to have, a stable view on any of these matters. The question for him, then, is why he would even consider writing a book about them. For potential readers, anyway, here’s a simple answer: Don’t bother engaging with his ideas on these matters if he won’t bother having any.

I have a lot of negative things to say about Stanley Fish’s book But I’ll try to start with some positives on its third chapter, which covers free speech as an academic value (he thinks it’s not one). Since much of what Fish says on that echoes Baer, I won’t recap it. I will note, however, that Fish agrees with many critics of campus protesters and social justice advocates when he says that “activist students are echoing the words of Herbert Marcuse in his classic essay ‘Repressive Tolerance.’”

“Repressive Tolerance” has been a reference point on my side of the campus speech wars as long as I’ve been involved in them, but when we talk about it we are often accused of proffering some sort of conspiracy theory. Fish admirably comes out against Marcuse and the protesters. Having linked them further to “antifascist” theorist Mark Bray, Fish writes:

This was a very welcome passage!

Fish goes on to defend Ronald Sullivan Jr., the Harvard Law School professor and residential dean who was criticized for working for Harvey Weinstein’s defense. He praises the academic ideal of “the life of disinterested contemplation.” And he even explains the ways in which “the recitation and invocation of a handful of now familiar words and phrases: ‘trigger warnings,’ ‘microaggressions,’ ‘safe spaces,’ ‘nonplatforming [sic],’ [and] ‘cultural appropriation’ … undermine the purpose of higher education: the concern for the advancement of knowledge is replaced with a concern for the emotional equilibrium of students who are to be protected from ideas they might find distressing. … In short, they don’t want to learn anything.”

He said it, not me!

Fish also takes Jonathan Haidt and Greg Lukianoff’s essay “The Coddling of the American Mind” to task, not unkindly and with some merit. He writes that they “have more in common with the students they criticize than they think, for they share with them a concern to foster mental health and emotional resilience.”

If Fish departs from campus protesters and from Baer in this regard (and he mentions Baer explicitly), he also departs from a lot of people on the other side of these disputes in that he doesn’t see them as having a free speech element at all. They are really, Fish thinks, about the purpose of the university, “issues of professional demarcations,” or “issues of management.” Like Baer, Fish is really interested in arguments from “purpose.” For my part, I’m torn on whether such arguments should be so compelling. Either way, I think Fish’s sense of a university’s purpose is based more in theory than in reality, based more in principle (something which, we’ll see, he despises) than in an examination of real-world academic life as it stands today.

So much for the good stuff. The rest is bad.

Despite the pleasant surprise third chapter, Fish’s book shares many surprising and unpleasant commonalities with Baer’s. It, too, begins with a lot of provocative rhetorical questions strung together without much argument. For instance, it asks whether or not Gab CEO Andrew Torba is “a prime example of how the promotion of unregulated free speech, proclaimed by First Amendment apostles as the cornerstone of democracy, can lead to a cascade of words that in time is corrosive of that same democracy.” By questioning whether some person is an example of some phenomenon rather than whether the phenomenon actually occurs, Fish offers, like Baer, rhetorical force rather than reasoned argument. He discusses Cesar Sayoc, a man who sent pipe bombs to CNN, and Robert Bowers, the Pittsburgh synagogue shooter, asking: “Should the authorities have been alert to the danger they posed?” This is a question about surveillance, not censorship — a question I thought had been settled on the left during the Bush administration, but apparently not.

Arguably, censorship and surveillance are conflicting goals: To the extent that censorship stops people from engaging in bad speech, it also makes it impossible for surveillance to uncover instances of bad speech, to whatever purpose.

Like Baer, Fish falls back on all the cliches of free-speech opponents, like “weaponization,” for rhetorical support. And like Baer, Fish uses the word “principle” like an epithet — he thinks that the First Amendment will be more “capable of doing the work we need it to do” (who is “we”?) if it is “freed from the stringent demand of principle.” This is a bit of a confusing claim, since Fish also thinks that “the First Amendment is a participant in the partisan battle, a prize in the political wars, and not an apolitical oasis of principle.” (Whatever that means.)

But if the First Amendment is already  not a matter of principle, it’s hard to see how we could the First Amendment from the “stringent demand” of principle. How could such a demand be “stringent” in the first place? But this is normal critical theory mishmash; you can’t tell whether a claim is descriptive or prescriptive, whether it’s about how the world  or how it  It all just blends together. For Fish, the claim that free speech  and the claim that free speech  are, paradoxically, one and the same.

Fish goes on to write that “First Amendment jurisprudence downgrades freedom of speech to the status of a value” rather than a principle, because “principles are often described as inviolable (that’s what we mean when we say ‘It’s the principle of the thing’); if they are to be infringed, it is only in the most extreme circumstances.”

This is a pretty poor analysis of the word “principle” and an even worse analysis of the phrase “it’s the principle of the thing.” When someone says “it’s the principle of the thing,” it’s usually because they take significant umbrage at an offense with less than enormous consequences because it has some symbolic aspect. This doesn’t indicate at all that the principle is inviolable. It has nothing whatsoever to do with inviolability. What was Fish thinking?

Fish equates  editor Glenn Greenwald’s view that “the doctrine of freedom of speech is intended to foster ‘exactly those political ideas that are the most offensive, most provocative, and most designed to inspire others to act in the name of its [] viewpoints’” with the view that “the worse the speech and the more dangerous its effects, the more it deserves protection. No balancing allowed.” But Greenwald’s point is very obviously not a point about balancing whatsoever. It’s the mundane point that if we want a free speech doctrine at all, it’s because we want to protect unpopular views, not popular ones — the latter are in no need of protection. Fish has done so much creative literary criticism that he’s forgotten how to read.

Fish thinks he’s presented some sort of paradox for those who believe in principles. He writes that “if you have any answer at all to the question ‘What is the First Amendment for?,’ you are logically committed to censorship somewhere down the line because your understanding of the Amendment’s purpose will lead you to regulate or suppress speech which serves to undermine that purpose,” and “if you have no answer to that question … you will then have to explain why we should revere something that doesn’t seem to be good for anything specific.” But even if you can’t answer the question, free speech is good for something specific. It’s good for free speech. All sorts of rights are good for their own sake, and this isn’t at all inconsistent with them also promoting other values. Fish is criticizing his opponents for being right for too many reasons.

Like Baer, Fish only demonstrates that bad speech accompanies bad actions; he doesn’t demonstrate that it causes them, nor does he offer any account of how to balance the harm of bad actions against the harm of censorship. This is probably because Fish does not think censorship is any sort of harm. In fact, Fish’s first chapter is titled “Why Censorship is a Precondition of Free Speech.” What argument does Fish offer for the appropriateness of this word “precondition”? Well, Fish offers a lot of examples of speech that isn’t free — the standard examples: you can’t lie under oath or shout “fire” in a crowded theater. In fact, Fish says, it’s not true that your speech is unrestricted “most of the time.” Places with no speech restrictions are far outnumbered by places that have them.

This is all well and good, but a bit beside the point. First, all it shows is that so-called free-speech “absolutists” are just as flexible as people like Fish, they just draw certain lines in different places. Is this an argument for drawing lines in the places Fish draws them? Of course not.

What about establishing censorship as a “precondition” of free speech? Fish writes: “Speech is always attached and tied down to the pre-known situational context of utterance, and it is only  speech is attached and tied down that it has significance.” Well, first, this is a claim about meaning, not about free speech. (With regards to meaning, it’s standard postmodern stuff: there is no sayable without an unsayable and so on.) And second, it seems like in the free-speech context, precisely the reverse of Fish’s claim is true. It is only  speech that is excluded means something that it is excluded. If I am thrown out of a bar for telling another patron “I’ll punch you in the face,” the reason is not some po-mo gibberish about a context of utterance. It’s because the speech has significance regardless of the context, and in that context the speech is unwanted enough that it is verboten. Fish seems to be saying instead that it is only in virtue of the bar disallowing me from saying “I’ll punch you in the face” that the bartender can understand my order (its “significance”). But he can’t possibly  this, because it’s complete nonsense.

Like Baer, Fish offers some wiggle words that, analyzed sufficiently, might make his position seem a bit more viable. For instance, he writes later: “If there were no censorship in the form of social or institutional purposes or goals that mark out what is appropriate and inappropriate to say, there would be no speech that was meaningful. … One might then say, with only a slight metaphorical stretch, that meaningful speech — speech that says something and not everything — performs an act of censorship, every time.”

Okay, maybe, whatever. But surely that is an equivocation on the word “censorship.” It just isn’t the sort of “censorship” that is under debate between Fish and his opponents. Redefining a word is no way to establish a claim that involves the word under its original definition. Fish, to his credit, acknowledges that he’s done this, but then sort of waves his hands about the whole discussion. What is actually proven? The postmodern literary critic engaging in circular word games: That’s all we really see here.

Anyway, even if censorship were in some substantive sense a precondition of free speech, this wouldn’t necessarily tell us much about any particular instance of censorship. One cannot live without eating, but that doesn’t mean one should never stop eating. If a student raises their hand in class and is called upon, then it is a “precondition” of their response that it occurs instead of another student’s response. But that precondition doesn’t give that student the right to interrupt or talk over other students when it’s their turn. Another example is that people who believe states are founded on violence generally do not think this justifies violence in an arbitrary instance. In general, it’s very easy to distinguish between a necessary condition and something that is desirable. And so even on the most generous reading Fish has established virtually nothing here.

Fish’s book is more coherent than a lot of his earlier work. Perhaps he thinks the postmodern moment has passed, or perhaps with age he’s just become less interested in incomprehensible trolling. But the old Fish still sometimes swims to the surface.

In a section on hate speech, Fish writes that the concept cannot be defined “because hate speech is an unstable category. It is unstable because there is no agreement on which utterances belong to it. Only if there were a set of utterances that would be recognized by everyone as hate speech would the designation name something conceptually coherent.”

Are there any words whose applicability to specific instances agrees on? The existence of one incompetent language user could destroy the meaningfulness of any word whatsoever — and so the postmodernist has, almost reflexively, canceled language out completely. Even an everyday word like “sandwich,” which famously has gray areas — hot dogs? tacos? ice cream “sandwiches” — and therefore does not have a precise socially agreed-upon definition, still admits of some clear-cut cases: A BLT is a sandwich, a ceiling fan is not.

Fish’s statements don’t fit with the way philosophers, linguists, or ordinary people use or think about language. They’re just the standard black-and-white postmodern thinking. Either everyone agrees on every utterance or the word means nothing. Either a principle applies in every single case or it’s nothing. Either everyone can be fit into one of a small number of categories or the categories don’t exist at all. If postmodernism were a mental patient, this would be a symptom of a disorder.

In the book’s fifth chapter, Fish makes some direct statements about postmodernism and truth. He disagrees with Victor Davis Hanson, whom he quotes as saying that postmodernism “derides facts and absolutes and insists that there are only narratives and interpretations.” Fish replies that postmodernism “does not involve a deriding of facts but an alternative account of their emergence.” But this itself is, of course, a kind of deriding: the notion that facts must “emerge” from something — that, in Fish’s words, “facts emerge in the course of interpretation and argument,” and that “fact is not a preexisting entity by whose measure argument can be assessed” — is anti-reality in all the ways postmodernism is always accused of being.

If argument is not measured by fact, what is it measured by? That is to say, what measured by? Of course, in the real world, facts do not always win the day. But that does not make them no longer facts. Fish writes: “Arguments come first; when they are successful, facts follow, at least for a while, until a new round of arguments replaces them with a new set of facts.”

But as we saw earlier with “censorship” this is just an equivocation on the word “fact.” Fish thinks that facts, in the sense most of us think there are facts, don’t exist. He’s come up with a new idea which he calls a “fact” — something emergent, maybe socially constructed or politically contested, whatever. He then says that these new things are facts, so he doesn’t disagree with us. But they aren’t facts except in Fish’s newly manufactured, obscure nonsense-language. (This is almost precisely the example by which Nicholas Shackel evokes his idea of the “motte and bailey doctrine” of truth in his 2005 paper in the academic journal , entitled “The Vacuity of Postmodernist Methodology.”)

Fish seems to recognize what he’s done, and tries to finagle a little bit: “To question the category of  fact — fact perspicuous to anyone despite differences in politics, philosophy, and morality — is not to question the category of fact; it is to question the picture of fact as something sitting there all by itself and waiting to be discerned by clear-eyed observers.”

This is what in real philosophy we call a confusion of metaphysics and epistemology. Fact is a metaphysical category: it’s a way the world is. Questions of what we limited creatures are able to perceive, and how perspicuously, are epistemological questions, ones about what we know and can know. Facts  sit there all by themselves. That’s the metaphysics. But they don’t . What the heck would that mean? The question of whether we can discern facts is a question about our capacities, not about the facts themselves. This is a truly elementary distinction that Fish messes up.

Sometimes it’s hard to tell what Fish really thinks about stuff like facts and truth. He writes that “‘true’ is a compliment paid to propositions that have been validated by a set of rules and procedures that are themselves contingent and revisable.” But then he says on the very next page that “revolutions in the characterization or description of the world do not change the world; what is true about the world remains true after accounts of what that truth is change.” How can both of these statements about the word “true” hold simultaneously? They just can’t — Fish hasn’t thought this through, even though I suspect that people like me have been telling him to for something like 30 years now. It’s that, or he just wants it both ways.

So the postmodernists have taken on free speech. They’ve done so with a virtuosic incomprehensibility, but that’s never stopped them before. On one page they’ll say that there are no absolute principles, then on the next they’ll say that institutions have purposes and considerations outside those purposes simply shouldn’t register inside them. They’ll confuse basic ideas like censorship and surveillance or metaphysics and epistemology. And then when they notice their confusion, they’ll define their way out of it, making all of their crazy-sounding arguments boring tautologies.

Perhaps they feel some responsibility for the decay of the academy, and it’s showing through. Perhaps they feel some guilt about the state of public discourse, and these densely horrible books are the symptom of a bad conscience. But I think what’s most likely is that this stuff sells about as well as anything academics ever write. Maybe someday I’ll understand why.

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