Stanley Fish on FIRE in ‘The New York Times’

by Robert Shibley

April 30, 2007

Stanley Fish, currently a professor at Florida International University and one of America’s more controversial scholars, penned a lengthy blog entry on FIRE’s case at the University of Rhode Island, and on FIRE more generally, in the “TimesSelect” section of The New York Times today. (TimesSelect is for paid subscribers only.) Fish, a literary theorist, is known by many, rightly or wrongly, as a strong defender of “political correctness” in the academy in years past. So it is interesting to see what he has to say about FIRE’s case at URI and about Jon B. Gould’s recent Chronicle of Higher Education article that harshly criticized FIRE.

Fish’s description of FIRE is really quite flattering—in fact, he gives us a bit too much credit regarding our influence with the media (if only we “commanded the microphones” of Fox News!):

[FIRE’s] resources include, in addition to a staff well-schooled in First Amendment law, the ability to command the microphones of Fox News and the pages of The New York Post. Last week, FIRE announced that, beginning immediately, it will have its own weekly column in the Post, titled Campus Watch. The first of the columns ran on April 24 and alerted Post readers to the situation at U.R.I.; two days later the student senate capitulated. Cause and effect in these matters is never simple, but there would seem to be some truth to FIRE’s boast, made in a press release the same day, that the senate acted in response to “pressure from the Foundation for Individual Rights in Education.”

In fact, if you check out FIRE’s Web site, you’ll find that literally scores of colleges and universities have felt that pressure. Time and again, FIRE reports a happy ending that was reached “Thanks to FIRE’s intervention.” Nor does FIRE wait for an actual incident before it intervenes. Independently of any complaint, FIRE issues assessments of campus speech codes and mission statements and often finds them in violation of First Amendment strictures. One report surveys all 16 schools in the University of North Carolina system and concludes that 13 of them “have at least one policy that both clearly and substantially restricts freedom of speech.” You can bet that the university’s administration is paying attention. A new feature on the FIRE Web site highlights “The Speech Code of the Month.” No college or university president will want his or her institution to be accorded that “honor.”

More interesting is Fish’s take on the nature of the disagreement between FIRE and Jon B. Gould, discussed in several blog entries over the last couple of weeks, about the state of free speech on America’s campuses:

Much of the disagreement between Professor Gould and FIRE turns on the technical question of what does and does not amount to harassment. FIRE follows a 1999 Supreme Court decision (Davis v. Monroe County) in asserting that speech is harassing, as opposed to being merely offensive, if it is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Professor Gould’s threshold for deeming a form of speech harassing would be lower and would be tied to what he considers to be the prevailing norms of “civil society.” Students, he reports, arrive on campus “already believing that colleges should prohibit sexist speech,” and their view is in line with the 55 percent of those surveyed by the First Amendment Center who don’t think that the right of free speech allows people “to say things in public that might be offensive to racial groups.” By that standard – being offensive to racial groups – the College Republicans’ mock scholarship offer would be an appropriate candidate for regulation. In FIRE’s view, the degree of protection extended to an individual’s speech should not turn on public opinion or cultural norms, but on abstract legal categories that stand free of either.

What we see here is a tension (which I have noted in earlier columns) between a desire to have our laws and procedures reflect our sense of social justice and a resolution to adhere to first principles – “Congress shall make no law abridging freedom of speech” – no matter where obedience to their dictates may take us. Professor Gould looks around and finds that behavior once acceptable and unchallenged – the making of sexist and racist comments – has come to be regarded as objectionable and harmful, and he concludes that our enlightened views should be reflected in campus regulations. FIRE would no doubt respond that our present understanding of social justice and civility is temporary and revisable; to enshrine it in law would be to have the law bend to the received wisdom of the moment, which would mean that the law would no longer be a normative enterprise and would instead be a plaything of politics. (When the received wisdom of the moment changed, it would change too.) I have been on both sides of this divide, and at this point all I know is that it cannot be bridged.

This seems to me to be a pretty good short analysis of FIRE’s and Gould’s perspective on what speech may rightly be considered “harassment.” FIRE does indeed follow the Davis decision, since it is really the only Supreme Court case dealing with student-on-student sexual harassment in an educational setting. And while Gould’s argument was somewhat hard to understand, I think Fish has it right: Gould believes that the standard of what speech should or should not be allowed is best determined by prevailing societal attitudes. That, at least, was my interpretation, and reading Fish’s article I see I was not the only one to come to that conclusion.

Who, then, is right? Fish declines to decide, but I obviously want to say a word for FIRE’s position.

Freedom of speech is not secure when it is subject to the whims of the majority. Whether this majority’s will is enforced through the collective agency of democratic government, or, as Gould would have it, through “hate speech” codes that prohibit constitutionally protected speech, putting what can be said at the whim of the majority is a dangerous thing to do. According to the First Amendment Center poll Gould cites, 55% of those surveyed think that the First Amendment doesn’t give people the right to say racially offensive things in public. But both history and logic ably demonstrate that a majority’s support for an opinion doesn’t make it right. For a long time, more than 55% of the American public undoubtedly supported racial segregation and the denial of voting rights to women. That was bad enough—but under Gould’s preferred regime, the same majority would not only be able to deny these rights, but even deny the minority the opportunity to advocate for change to those very policies!

Fish is right to note that there is a real tension between principles of absolute freedom of expression and respect for the will of the majority. But it is far safer to trust our freedoms to the law rather than to the whims of our fellow citizens. If a new balance is to be struck that would allow less freedom than the First Amendment guarantees, let those like Gould who wish less freedom follow the lawful procedure for amending the U.S. Constitution—and let’s see just how popular their attempts at censorship truly are.