So to Speak podcast transcript: There’s no such thing as free speech, argues professor Stanley Fish

November 5, 2019

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Well, listeners, welcome back to So to Speak, the Free Speech Podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, your host, Nico Perrino. I’m here at the Cardozo Law School in New York City with Professor Stanley Fish. Professor, welcome to the show.

Stanley Fish: Well, thank you. It’s a pleasure to be here.

Nico: Professor, you got started as an English Professor at the University of California, correct?

Stanley: That is correct. In 1962.

Nico: Since then, you’ve been teaching in colleges and universities across the country. You’ve ventured into Law. How do you go from English to Law?

Stanley: Well, the quickest answer is by playing basketball. In the middle ‘70s, I used to play basketball with a friend who was then teaching at the University of Maryland Law School. He and I and another member of the Johns Hopkins English Department would after games, especially after we lost, we would sit around. We found that there was an intersection between our two fields. The point of intersection was interpretation. Along with interpretation, evidence.

So, questions of exactly how you figure out what words mean and what data or evidence is legitimately brought forward in support of an argument that you might be making. There were many cross connections between the attempts to interpret poems, on the one hand, and to interpret cases on the other. So, we began to think about this. Then, we joined and taught a course in it, one semester at John’s Hopkins and the next semester at the University of Maryland Law School. That’s how I got started in the law.

Nico: Now, what was your focus in English?

Stanley: My focus in English was non-dramatic poetry of the 16th and 17th century. Although, before that, I was a medievalist. So, I was also doing non-dramatic poetry of the 14th and 15th century beginning with Langland, Chaucer, and Gawain poet and going up to Wyatt and Surrey. But later on, my specialty became 17th century non-dramatic verse which means John Milton, John Dunn, George Herbert, Andrew Marvell, Ben Johnson, and a whole host of lesser figures.

Nico: So, in your book and the reason I’m having you on this show today, of course, is you have a new book coming out November 5th, correct?

Stanley: I believe so.

Nico: It’s election day, right?

Stanley: They keep pushing the date.

Nico: The book is called The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump. You’ve actually written about free speech before. You had a 1993 book called There’s No Such Thing as Free Speech: and That’s a Good Thing. So, makes sense that we have you on this show. Before we dive into the book, since you mentioned John Milton, Aeropagitica. It’s something that’s held in high regard among free speech advocates like myself. You actually discuss it in your new book a little bit. Since you’re an expert, what’s the correct way to pronounce it? Aeropajitica or Aeropagitica?

Stanley: My expertise does not extend to that question.

Nico: But you talk in the book. This is something that has bothered us free speech advocates all along because it’s such flowery, glowing, and insightful language about the principles that undergird free speech. A lot of it would be reflected in what John Stuart Mill wrote in On Liberty.

Stanley: Exactly.

Nico: But John Milton was an imperfect messenger because he thought free speech should be allowed. He was writing against primarily prior restraints except for Catholics.

Stanley: Yes. Well, my position is that what seems unusual or at least troubling in Milton’s structures against Catholics is, in fact, an emblem of what all free speech advocates at some point face. Let me explain. The reason that at a certain point Milton says, well, when I say all these things about allowing free expression of opinion, I don’t mean Catholics. Then, he says, them, we extirpate.

A word which means pull out by the roots. The reason is that since he’s promoting the free flow of discourse in the service of the search for truth, he believes that Catholics are dedicated to shutting down the flow of discourse and allowing only their own point of view to be heard and are themselves addicted to censorship. So, since they’re addicted to censorship, they must be censored so that free speech in the service of the search for truth can continue. That led me to conclude a long time ago and to repeat again in the new book is that when you advocate free speech or when you are, let’s say partisan of free speech, you have to ask and answer the question what is free speech for.

Any answer that you give necessarily commits you to censorship down the road. Because if you decide, as Milton did, free speech is for facilitation of the search for truth, then you mush acknowledge, or at least he acknowledges, that there are some forms of speech that rather than advancing that search frustrate it. Therefore, censoring those forms of speech is not a violation of the First Amendment but a realization of its principles.

Nico: But if the purpose of free speech is the search for truth, isn’t part of understanding the truth hear what people have to say and what they actually believe? So, for example, it’s important to know who the Nazi is in the room, right? Their speaking their odious opinions tells us something about the world. It’s important to know that about the world in order to better formulate, perhaps, public policy.

Stanley: Right. What you have just said is standard First Amendment doctrine.

Nico: You’re going to hear a lot of that.

Stanley: Therefore, none the worse – none the worse for that, but what it assumes in the context of what I usually call the psychology of liberalism. What it assumes is that the mind is a rational instrument which can coolly, or which at least should, coolly survey what comes before it so that true statements and false statements can be distinguished. Harmful speech and helpful speech can be distinguished. What Milton and others see is that when you let something into the world, a form of speech into the world, which rather than promoting First Amendment values is dedicated to shutting them down.

You’re not being faithful to the First Amendment. In fact, what you’re doing is promoting the possibility that vicious and false speech will get into the atmosphere. Then, be accepted or at least considered as a possibility by persons who have never heard of it before. So, the whole argument for censorship, at least on the Miltonic level, depends on a less sanguine view of the human mind and its rational capacity than we find in, let’s say, John Stuart Mill who is much purer, from your point of view on this question.

Hobbs in 29th Chapter of Leviathan points out that if you have seditious speech freely allowed as he says the Greeks recommend, then what you are, in fact, establishing are the conditions for tyrannicide chaos and civil war. Now, these two points of view have continually vied for, what we might say, intellectual supremacy in the free speech universe. On the one hand, dedication to the free flow of speech and the assumption that the more speech the better. On the other hand, a sense that there are forms of speech which are so harmful and so deleterious that rather than furthering the project, they undermine it.

Nico: Yeah. But what if we accept that latter premise. Everything. There are things that are so odious that if we could construct a framework to prevent their expansion and expression within the world, we would. I think most free speech advocates, including myself, would argue that no such framework exists. No one has put forth one that would work in practice. As soon as you give the power to those in authority to determine, as Thomas Hobbs discussed in Leviathan, what is detrimental to the public’s fear is going to be applied inconsistently.

You get something like what Erdogan in Turkey does where he labels terrorists who aren’t terrorists. Any criticism of him is a criticism of the state and weakens the state’s power.

Stanley: Our present President says the same of his opponents.

Nico: True. True. So, how do we grapple with those concerns in an environment where we can accept some of the premises, but the actual practical implication of them are impossible.

Stanley: This is usually called in literature the who’s to judge problem. My response to it seizes on a word that you used a couple of times in your question which is the word power. What in fact you are saying, and I quite agree with you, is that once you allow a view that identifies some forms of speech as so inimical to the social health that they must be, in some way, regulated. Once you allow that, what you’ve done is made a political football of free speech principles. My thesis is it always has been.

So, in fact, if you allow the free flow of speech and do not adapt any of the negative safeguards put forth in different ways by Milton and Hobbs, who by the way were intellectual enemies of course; if you don’t do that, what you are allowing is other forces equally political to, in effect, rule the dance. In other words, taking politics out of the free speech business isn’t a possible thing to do. So, the question from my point of view, do you want the politics to be in there frankly?

We are against these forms of speech because they are inimical to a particular set of beliefs. Or do you want the same kind of work be done surreptitiously under the surface in the name of something called the marketplace of ideas which has never existed – which never will exist and could never do the work that its proponents say that it does do?

Nico: So, let’s make real some of the concepts that you’re discussing here. In what ways can free speech not be applied as a neutral principle? In what ways do politics enter into the equation and frustrate the best intended efforts of free speech advocates to apply the principles?

Stanley: Yeah. I think they are best intended. I attribute only sincerity and good will to strong free speech proponents. The answer to that is, at least the one I give in this book, is to say that there is no free speech principle. I’m not the only one who is saying that. Celebrated legal academics like Robert Post, former Dean of Yale Law School, and Larry Alexander, Chaired Professor at the University of San Diego Law School, and others have made the point that rather than being a single thing or principle to which you could point, free speech doctrine is a series of slogans and rhetorical sound bites which are applied differently in different situations.

So, that’s what I meant when I said in my 1993 or 1994 book. There’s no such thing as free speech. What I meant is there’s no such thing as an identifiable free speech doctrine that you could, in fact, define in a way that could then be applied to specific political situations. Rather, I am arguing, the shape of specific political situations will determine exactly what free speech means in that situation.

Or as I put it in the book, politics is always and already inside the First Amendment, except in a very, very limited circumstance like a Hyde Park Corner or some other place where people stand up and in succession are allowed to say anything they like. Why? Because it’s recognized that that form of speech has no consequences. That’s what it’s there for. We might call it the theater of free speech. That kind of context or the context of your singing to yourself of ranting to yourself in the shower are the only two free speech moments that might be considered pure.

Another way to put this is in the usual free speech doctrine, freedom of speech is held to be the default state, and exceptions to that are considered to be special and must be defended by special arguments. My view is that constraint and censorship are the default states. That the idea or the ideal of some kind of free speech moment only exists in very special cases like the Hyde Park Corner.

Nico: Well, I think free speech advocates, though, are coming at it a bit differently than you do would argue that censorship is the default state at least when applied to government action. I mean, it wasn’t until recent centuries even that people started considering free speech as an important value. Although, I did see it in certain discourse in Ancient Greece and Ancient Rome, as well.

Stanley: Correct.

Nico: But they also had exceptions too. But you didn’t start to see the First Amendment absolutism as a lot of people describe it today until after 1919.

Stanley: That’s correct. Absolutely correct.

Nico: Of this century. I think a lot of free speech advocates – I mean, the ACLU’s project for the first 50 years or so was getting the Supreme Court more or less to the position that it is at today. Now, they might have disagreements with how far the court has come; but in the early part of this century, if you were a Communist and wanted to go on the street corner and hand out literature, especially during wartime and especially during the Red Scare, it wasn’t clear that you had the right to do that. It’s pretty clear that you would have the right to do that today.

So, we in the free speech community see that a lot of the carveouts that the court have made to free speech. Because when you look at the clause, Congress shall make no law abridging the freedom of speech, now, you could either interpret that as literal like any speech, any form of expression must not be abridged. Or you can ask yourself what is the freedom of speech that the drafters of the Constitution or the Bill of Rights thought to define. If you look at it from the latter perspective that free speech has definition, then you could create some avenues for restriction speech if you look at as just kind of a definition speech – any –

Stanley: Abstract.

Nico: Yeah. Abstract. It doesn’t allow for as much restriction. Now, I would argue that the carveout that the courts have made – tend towards conduct which can be similar but isn’t always the same as speech. They’re very sophisticated and while they might not be applied consistently, I think, point to an environment that allows for the sort of discourse values that the Constitution presumes whether it be the marketplace ideas that you mentioned earlier or just the idea that we are autonomous individuals and should have the right to be who we are and speak our minds.

Then, there’s also the search for truth. There’re many positions that undergird the First Amendment. This is kind of a long way of saying that even First Amendment advocates, free speech advocates, struggle with these questions too. But I think the Supreme Court’s approach to it, at least in recent decades, has been sophisticated and gotten as close as anyone has ever gotten to applying free speech standards consistently.

Stanley: Well, that was a very long question which had many parts. Let me try to respond at least to a couple of them. First of all, your historical point with which you began was correct. It was only in the first 20 years of the 20th century that something recognizable as today’s free speech doctrine begins to emerge. Before that, there was something called the Bad Tendency Theory of Speech. Whereas words or phrases which were considered in and of themselves no matter what context they appeared in to be harmful. No question about disallowing those forms of speech were raised.

So, in effect, the First Amendment was largely inerrantly with respect with some questions before 1919 and 1920. At that point, there were two tests for disallowing or in some ways regulating speech. One was content text that is are these words or ideas so pernicious, so blasphemous, so hurtful to the social fabric that they shouldn’t be allowed. The other was an effect test that is what kind of effect on the social fabric, again, is produced if these words or phrases are allowed to flourish.

The revolution that you speak of is one in which both content and effect has points or measures of judgment disappear. Speech is considered a value in and of itself. Independently of what the speech happens to say, what content it bears on the one hand, or of what effect it happens to produce on the other hand. As you indicated, that was a fairly long fought battle which I believe culminated in victory in 1964 in New York Times versus Sullivan. New York Times versus Sullivan is a case that almost all strong First Amendment advocates celebrate.

It’s a case that I and recently Justice Thomas are very suspicious of. Why? Because what happens very specifically in New York Times versus Sullivan is the content test and the effect tests are simply dismissed. Instead of asking questions like what does this speech do or what is its tendency, the question that’s asked is it speech? If the answer is yes, then it’s protected. As you know in New York Times versus Sullivan, that goes so far as to say that defamation and false statements are themselves speech and can, in fact, contribute to some extent to a wide open robust and uninhibited conversation.

That’s a quote from New York Times versus Sullivan. Now, again, many free speech advocates such as my friend, Floyd Abrams, for example, celebrate that case. He considered it a reason for dancing in the streets when it first went. I think it’s disastrous because it has removed human judgement from the scene and replaced it with an abstraction, freedom of speech, which is never given real content which, to my mind, doesn’t hold up under examination for many reasons. But one reason, which again touches on part of your question, is that speech action distinction is impossible to maintain.

There’s no way whatsoever that you can coherently or philosophically defend that distinction. Supreme Court jurist prudence, to my mind, recognizes that because of the devices it sets in motion. Devices whereby something that is an action can be recharacterized as symbolic speech, or that something that is a form of speech can be recharacterized as an action. With these two devices in hand, the Supreme Court or any other court can put any utterance brought forward on either side of the speech action distinction. So, again, and my answer is going on too long, I don’t think that speech action distinction holds up.

I think that the court devices all kinds of mechanisms to hide from itself and from us the fact that it doesn’t hold up. I myself still stand with Hobbs and John Milton in saying not that the values of free expression are not worth protecting, but that in order to protect them some forms of expression must in fact be inhibited. The way that this has been put by some people including Abraham Lincoln is that the Constitution is not a suicide pact.

Nico: In discussing New York Times versus Sullivan, it’s not that you can just willfully defame anyone. I don’t know that they found defamation, in that case, needs to fit a certain calculation.

Stanley: Yeah, right.

Nico: It needs to be –

Stanley: It has to be malicious. If you’re a public figure, you cannot bring liable cause of action unless the person or media organ you are suing knew in advance of publication that what was about to be said about you was false and published anyway. Because that would constitute a malicious act. That was in New York Times applied only to public persons. But in subsequent cases, Gertz versus Robert Welsh and others, the notion of public persons was extended to people who came into association with public events.

It became weaker and weaker. So, I would say that liable law, in this country, has been very much weakened by New York Times versus Sullivan. That the general notion that what you say has consequences and that you are responsible for it has begun to – has been eroding from the New York Times versus Sullivan decision and subsequent decisions that followed in its wake.

Nico: But to set up another framework in which there is not this presumption of liberty that you are allowed to express an opinion even if that opinion be false presumes that everything is true and false. That either true or false. Or false in some sort of clear category. I think a lot of times, this is why I think the willful misrepresentation of the malicious standard is a pretty good one is we just don’t know the truth. We’re acting with the best information available to us. To set up another standard is to set up a standard where journalism can become impossible.

I have friends who are journalists in the UK, for example, their liable laws are much more expansive than ours. I know newspapers that have shut down as a result of the expense of litigation that goes on surrounding those laws. So, there are consequences beyond those to the individual who believe they are being defamed. There are also consequences to innocent actors who are acting on the best information that they have but are not availed of all the information.

Stanley: Did you ever see the movie Absence of Malice?

Nico: No, I have not.

Stanley: You should. It’s a New York – it’s an anti-New York Times versus Sullivan movie. Quite explicitly. It stars Paul Newman and Sally Field with some brilliant minor performances by very good actors. It explores the position that you have just enunciated. The thesis of that movie is that New York Times versus Sullivan and a similar decision open up the way for journalists to ruin people’s lives. I remember one time about 25 years ago when Charles Berkeley was, I think then still in the International Basketball Association player spoke to an audience.

A member of the audience asked him about the rumor that he was in some kind of relationship with Madonna. He said, well, that rumor probably came from a certain journalist. He said, one thing I can tell you about journalists, they are not your friends. I thought to myself that guy belongs in the Philosophy Hall of Fame in addition to being in the NBA Hall of Fame. I was a Dean of the University of Illinois at Chicago’s College of Arts and Sciences for five and a half years. Therefore, had some dealings with the press.

The press is absolutely a treacherous entity. It’s just involved generally in a large game of gotcha. If you have had no experience with the press and think that you’re going in to talk to a journalist and you’re just going to tell them the truth, they will eat you alive.

Nico: Well, I have had experience with – I used to be a journalist. I –

Stanley: So was I. I wrote for the Times for eighteen years.

Nico: I do media relations. So, I work with journalists every day. I do not believe that the basic instinct of most journalists is to be malicious. I think that they go into most of the stories they write to do a job like the rest of us do. They do it the best they can. Now, are there certain bad actors just like there are bad acting police?

Stanley: There are no bad actors in Absence of Malice. The person who is most at fault from the perspective of the movie is Sally Field. Who as you might imagine, Sally Field only played characters with the best of intentions. That’s not the question. The question is do we put journalism, this is an old question, do we put journalism as a profession, in a special place? Should there be a special shield for journalists? Still a topic of debate as you know. I say no for the same reason that I am against any expansive idea of academic freedom which would give academics some kind of special purchase on what they can say without suffering consequences.

Nico: Well, it seems like you are giving them special purchase by saying that they have a greater power to ruin people’s lives than other people do. Presumably in a defamation framework that you might choose that would be recognized by the court and be a factor in determining damages, correct?

Stanley: Let me seize on something that you just said, perhaps, to turn the conversation in another – that you might choose. I’m not choosing anything. I don’t give any recommendations. When I probe what I call the strong discourse of First Amendment proponents, I do so to uncover problems, fishers, and contradictions to show why things don’t work in the way that First Amendment theorists often assume that they do. The question then legitimately comes back to me. What would you put in its place? I have no answer at all.

Nico: But isn’t that the argument of us free speech advocates? This is something we touched on at the beginning of the conversation. We do not have a better vehicle –

Stanley: That’s right. We don’t.

Nico: To answer these questions.

Stanley: In my book, I say quite explicitly several times, one, I don’t think free speech doctrine intellectually holds up. There’s no philosophical or argumentative coherence to it. Two, I don’t think we should abandon it. I don’t think we should abandon it because even though every part of it is questionable and is in the strongest sense of the word a fiction, it’s a fiction that we need for certain purposes. Therefore, we should retain it. Just don’t believe in it. Just don’t worship it. My biggest – that would be too strong a statement.

What I dislike intensely is free speech offered as a theology, as something we worship. Of course, liberalism has left us in that position. Since the first gesture of liberalism, classical liberalism, is to dethrone unimpeachable authority. Instead, substitute for the unimpeachable authority of a God or Scripture, the earned authority of men and women freely trying to figure things out.

Since that’s the first move of liberalism, liberalism having dethroned ultimate authority tries to boot strap itself up to some form of ultimate authority and never succeeds and never could succeed. That is why it has to put fictions like the fiction that undergird the First Amendment in place. Again, I am not against those fictions. I’m just in the business of pointing out that that is what they are.

Nico: So, in the introduction to your book, you talk about a couple of tragic cases, recent cases of mass shootings. You talk about the shooting in the synagogue, I believe, in Pittsburgh. You also talk about the man who sent pipe bombs to TNN. You write that if they didn’t have an internet community where their views would be parroted back to them and amplified to the point where every toxic thought they entertained seemed universally shared, would the seeds of hatred, perhaps, not have flowered in the actions they ultimately took.

I think it’s a good point, but I also think it’s one that ignores history in so far as people like them have always existed. I read books about – I wasn’t around in the ‘70s and ‘60s, but there were bombings almost every day. This is before the internet. Then, it also presumes that they only happen because their thoughts are shared. Now, undergirding the freedom of speech is the freedom of thought. I think that’s – you might think –

Stanley: Say that again.

Nico: Undergirding the freedom of speech is the freedom to think. In order to speak freely, you need to be able to think clearly, correct?

Stanley: I don’t know. I’m not sure what you’re staking on this. It sounds almost too commonplace to have any bite.

Nico: Well, what I’m saying is if they can think these thoughts, then these actions can occur regardless of whether they can express these thoughts. Right. It’s not just the hateful that they express; it’s the hateful things that they think that cause them to do these actions. So, if the thought is, well, we might need to censor these speakers because this allows for the actions that took place, the devastating and tragic actions to take place. If we could as a society get into their thoughts, would we be anymore justified in doing and restricting their thoughts if we could. This is like the movie Minority Report, if you’ve ever seen that with Tom Cruise.

Stanley: Oh, yes. I saw that.

Nico: An interesting philosophical experiment.

Stanley: Right. Look, I don’t talk about thoughts. None of the people whose work I would cite like Thomas Hobbs or Milton or Immanuel Kant, for that matter, would be talking about thoughts in that way. In fact, Kant has an interesting theory of the way in which a society should be organized. As he puts it, it should be organized by principles that could be followed by “a nation of devils”. By that, he means that it shouldn’t be a matter of great concern what men and women have in their hearts or in their minds.

Rather you should institute laws that force them or compel them to obey in certain ways independently of what’s in their heart, in the hope that if they obey habitually in awhile what’s in their heart might change. What Kant is getting at and what I’m here building on is the idea that if you have laws which clearly label certain forms of speech as beyond the pale, that is itself a factor that discourages even people whose thoughts are congruent with those forms of speech to utter them. It’s just one among many possible ways of organizing our society.

Now, all of the First Amendment disputes that occur occur along this fault line. Consider, for example, the long-standing disputes about pornography and whether or not pornography is something that should in some way be regulated by the state.

The argument for the regulation of pornography made by people like Catharine MacKinnon or Jeremy Waldron is that if you put pornography into the world and allow what we might call the landscape of society to be saturated with it, that means there’s a certain set of presumptions and assumptions which have the effect of placing woman in subordinate positions and presenting women as creatures who are actual pleased by the abuse, hostility, and aggression they face. That’s a consequence according to MacKinnon and Waldron of allowing pornography freely to circulate.

Therefore, again, in their arguments, if pornography instead were regulated and disallowed, the amount of abuse women would receive would be lessened because the general picture of them as creatures seeking that abuse would not, in fact, be broadcast. Now, that’s an argument. That’s a real argument. Again, these arguments are all probabilistic arguments. As you indicated in your question, it might go one way. It might go another way. But what I keep saying is that there’s no particular value or virtue that I’ve ever been able to see to allowing everything to be said and to buying into the free speech mantra that the more speech, the better.

I don’t believe in the more speech, the better. The more speech, the better is what’s given us the internet, a cesspool unlike any other that we have ever seen in the world. The internet is also, as I say in one of my chapters, one of the mothers of fake news.

Nico: It’s also given us access to the world’s knowledge on a scale unforeseen in any other point in human history.

Stanley: If my students who are addicted to the internet, in example, it hasn’t given them access to anything because they’ve never heard of Thomas Hobbs. They’ve never heard of John Milton. They’ve never heard basically of anything that’s happened in the history of the United States. They don’t know who Franklin Delano Roosevelt was. They don’t know anything. These are law students. Why don’t they know anything? They don’t know anything because they just listen to podcasts like yours.

Nico: Well, is this a phenomenon? Because it seems to me that every generation says that the former generation doesn’t know anything.

Stanley: I’ve been teaching for 57 years. My students knew something 57 years ago. The reason they knew something – this is the other side of the discussion that we’ve been having. The reason they knew something is that they had all taken Civics courses of the kind that I took when I was in high school and in my freshman year of college. They are all forced to learn a set of things about the way this country work including a sketchy version of this country’s history.

They are all introduced to important cultural artifacts which were explained and discussed and in some cases of films shown. What’s happened is that genera sense of a cultural set of norms with a particular content has been abandoned in favor of a free for all. Let 100 flowers bloom. Let 1,000 flowers bloom.

Nico: But it sounds as though you’re criticizing the teachers. I mean, the Civics education stuff has very little to do with the internet. It has to do with the teachers who set the curricula.

Stanley: No, but I’m just making an analogy here. In other words, when I bring up the Civics – John Stuart Mill at the end of On Liberty complains, as you may recall, about public education. What’s his complaint about public education? That it, in fact, pushes students in one direction rather than another. So, he argues for a form of public education that is, in fact, opinion free and only devoted to facts, an impossible, in fact silly idea. But his point is that as long as you have education, you’re going to have people being nudged in some philosophical/moral direction rather than another.

I say, yeah, that’s right. So, it’s your business, my business as a political animal to gain control of the political machinery in so far as we can. Then, ensure that what’s taught in the schools and what’s broadcast over the airways conforms to our ideas of what is right and wrong. Now, what’s the alternative to that? The alternative to that is to just allow some abstract notion of truth to emerge, and it never will.

Nico: Well, by presenting various sides of an argument.

Stanley: You are really deep into it.

Nico: Well, yeah, I am. But I don’t know why you need to take a political position in order to educate. I mean, unless you think – unless you think the mere choosing of sources who might come from various political perspectives – and we should acknowledge here that not education is –

Stanley: Can I ask you a question? Is that –?

Nico: Sure. Yeah. Of course.

Stanley: Do you subscribe to the Monahan quip? You are entitled to your own opinions but not to your own facts?

Nico: Yes, I think I would.

Stanley: I’m glad you say that. I was counting on it. But, no. Of course, you are entitled to your own facts if you can make them stick. The Monahan quip and statements like it presuppose what I call the psychology of liberalism. That is a psychology that I’ve mentioned before where the mind simply passing judgement on what passes and what passes before it. It’s also a psychology which assumes that facts are lying there in the world waiting to be seen by a clear-eyed observer.

My counter-argument – it’s not only mine; I could cite hundreds of philosophers to support this – is that facts emerge in the context of argument and debate and then are established as facts for a while until a new round of context and debate establishes another set of facts. What that means is that the fact that are for us at the moment facts achieve that status by virtue of an act of persuasion. So that, if you manage or if I manage – we manage to persuade a significant number of our fellow citizens of our opinions, those opinions then become facts for a while. So, there is no distinction, finally, between fact and opinion. Opinions are facts in waiting.

What they’re waiting for is to emerge victorious in the context of debate and argument.

Nico: See, it’s interesting because I don’t disagree with you. I guess what I disagree with is that there are certain things that are testable and empirical. Maybe those are in the realm of science.

Stanley: Now, you’re going to – now, let me ask you another question.

Nico: Okay.

Nico: Do you believe in the distinction between faith on the one hand and reason or empirical investigation on the other?

Nico: Yes.

Stanley: Yes, I thought you would.

Nico: Of course, I do. So, I’ve fallen into your trap.

Stanley: Because I don’t. I taught a course yesterday on Inherit the Wind. It’s a movie about the Scopes Trial in the early part of the 20th century.

Nico: Yeah, Scopes Trial.

Stanley: That’s a movie produced and directed by Stanley Kramer who is a stalwart First Amendment liberal. The entire dramatic rhetoric of the movie depends on the distinction between faith on the one hand and reason, especially reason associated with scientific experiments, on the other hand. That distinction doesn’t hold up for a second. That distinction doesn’t hold up. What’s you’re dealing with in science as opposed to let’s say orthodox Christianity or something else are two different faiths.

Two different kinds of faiths undergirded by radically opposed assumptions and presuppositions. But it’s presupposition and assumptions which are generating the evidence and facts on both sides. Again, you have – I can tell and say this with all the generosity – you are deeply mired in the basic assumptions and presuppositions of classical liberalism. Anything else that is brought to you, anything that is brought to you by some kind of retrograde sinner like me sounds outlandish and obviously perverse.

Nico: No, not necessarily. Because otherwise, I wouldn’t be having this conversation with you.

Stanley: Good point.

Nico: But, you know, we’re at the corner of what? 5th and 12th Avenue. Are you telling me it’s not a fact that we’re at the corner of 5th and 12th Avenue?

Stanley: Oh, come on. Come on. Look, have you ever read The Structure of Scientific Revolution?

Nico: I have not.

Stanley: Okay. Do you know what it is?

Nico: No.

Stanley: Okay. It’s a book that is probably the most influential book in the social sciences and humanities for the past 75 years. That’s not an understatement. That is not an overstatement. Kuhn, his project, is the history of science as his title suggests. What he does is challenge the picture that I’ve already referred to where he says that science is not an activity in which one generation because of using its powers of observation and experiment adds to the details of the description of nature that was begun by previous generations.

What he’s saying is that scientific knowledge is not cumulative in the way that the usual picture of science suggests. Instead, scientific knowledge, that is the establishment of scientific fact, depends on what he calls paradigms. What’s a paradigm? A paradigm is the set of in place assumptions and authorized methodologies that govern and are in fact the content of scientific investigation at any moment. Paradigms rather than any direct confrontation between the observer and the world. Paradigms are what produces evidence and interpretations.

Finally, interpretations that are persuasive and successful for a while until that paradigm, for reasons that he details, is dislodged by another. When that happens, when the paradigm within which scientific observers work Kuhn says changes. One might say without exaggeration that without the world in which the scientific practitioner works has itself changed.

Nico: See, I don’t buy it though because there are things that scientist do maybe through this paradigm that produce a tangible result that only come as a result of. Changing the paradigm won’t change the result.

Stanley: Tangible result is itself along with other talismanic phrases like that – tangible result will be recognized as one depending on what pragmatic point of view you are situated. What Kuhn would say, he’s not the only one and I’m not the only one, is that any conclusion that you might reach and be confident in is not supported by some correspondents between your methodological, descriptive protocol and the world. Rather it’s produced by the paradigm within which you are ensconced and of which you are in some sense an extension.

I really urge to read this book because he considers – he’s not debunking science. He’s not debunking scientific achievement. He’s just giving a different picture of it which challenges what he thinks of as the over simplified picture, again, of a world out there waiting to be correctly described. We, as rational observers, having the task to describe it. But we’ve gotten a long way –

Nico: I know, from our initial topic. I will put that book in our show notes so both I and our listeners can review it. I will say I am skeptical because I don’t know that there is a paradigm shift that would produce a different – if you’re looking to make cement, there’s one formula that we use to make certain categories of cement. I don’t know how shifting the paradigm –

Stanley: He has examples which you would at least have to consider.

Nico: Yes, of course.

Stanley: And they’re very powerful. He says things like one moment they were swinging stones. Then, the next moment, that is the moment after a certain scientific observation, there were pendulums. So, what he’s going to say, in other words, the usual way of thinking about it was there are always pendulums. It’s just that after a while science developed a vocabulary and descriptive method that allowed us to specify what a pendulum was. He’s saying uh-uh. Descriptive method is what produces the pendulum.

It’s not the pendulum that tests the descriptive method. It’s a big argument. As you say, provokes skepticism not only in you but in many readers. It’s been very controversial. But it’s the kind of argument that was made in the history of science before Kuhn by a man named Norbert Hanson. It’s a kind of argument that’s been made by major philosophers like William James and William Quinn, Richard Rorty. Strawson, and others.

In other words, this argument that I’m presenting to you is by no means, at least in the history of philosophy since Hobbs – Hobbs makes the same argument too. It’s by no means an odd or outlying argument.

Nico: No. And I’m not suggesting it is. I’m just stating that I’m skeptical of it because, as I’ve already stated – and we can move on after this. There are chemists who go to work every day, produce a formula to create a result that I don’t think you could change the paradigm or the way we think about that formula that would produce a different result.

Stanley: It’s happened over and over again. Kuhn and others have given examples which you could at least consider.

Nico: Yeah. I will put it in the show notes here so that our listeners can consider it as well. I realize we’ve already been going for what 53 minutes at this point. We haven’t even gotten to China. I want to discuss that because it’s perhaps the most newsworthy thing that you’ve written.

Stanley: I wrote something yesterday about Zuckerberg’s interchange with Congressmen from New York, AOC, about whether or not Facebook is responsible for the content that it offers.

Nico: Well, let’s see if we get time to go there because I do want to touch on China. You wrote an Op Ed in the New York Daily News called In Defense of the NBA. The league has every right to come down hard on critics of China who work for it. Adam Silver, to refresh our listeners memory here. The league came down pretty hard on Houston Rockets General Manager Daryl Morey who tweeted “Fight for freedom. Stand with Hong Kong” more or less. There was backlash to the NBA.

Stanley: Absolutely.

Nico: Coming down on General Manager Daryl Morey because people saw that as a capitulation to China with whom the NBA has a lot of business dealings. It’s a huge market; they make a lot of money over in China. They saw it as an abdication of principles, in this case, principles of free expression to capitulate Adam. Silver said, we will protect our employee’s freedom of speech. But you say that it need not be a concern of the NBA the protection of the freedom of speech.

Stanley: I say the same thing about the Academy. My chapter on academic life, which is entitled, as you know, Free Speech is not an Academic Value. What links these two apparently desperate situations, NBA on the other hand and the classroom research laboratory on the other hand, is that in both context free speech values are not central to the enterprise. It’s not central to what we might call the business that the two enterprises are in. The university is in the education business. It’s the business of imparting knowledge of advancing the search for truth.

In the context of those two goals, something like a free speech principle is occasionally relevant but not extraordinarily, precisely relevant. What I say about the academic context is that the reigning value in the academy is freedom of inquiry. Freedom of inquiry as an ethic or as something obligatory for academics to engage in has nothing to do with free speech. Because, in fact, only those who have been vetted by various officials in the university world, department chairs, deans, editors of learned journals, and etc. are allowed to speak.

Much of what goes on in the university is telling certain persons you’re not going to have your say whether your students or professors who people who want to be professors. We’re sending you away because we have judged you as having a voice not worthy to be heard. That seems to me to be perfectly correct because the test should not be does the situation here contribute to the flourishing of free speech. It should be does the situation we see here contribute to the flourishing of education. Different questions.

Same thing with the NBA. When Mitch McConnell warned the NBA against putting profits ahead of free speech, my response to that is that’s what the business the NBA is in. Putting profits ahead of free speech. Free speech has nothing to do with the National Basketball Association, except as a public relation matter. So, as I say in my piece, Silver was right to fly the free speech banner after a while because he saw that it would be necessary to maintain a good public relations aspect for the league. I don’t think he meant it for a second, and I hope he didn’t.

I hope he was totally insincere because I believe that his only goal, which is the goal of his job, is to ensure the health, stability, and growth of the league. To repeat what I’ve already said, he’s not in the free speech business. It’s just, you know, it’s just a distraction. So, I see no reason for the NB – I would have gotten rid of this guy immediately. The test would not have been a free speech test. This would have been is what he said damaging to the enterprise, the enterprise being the NBA. The answer is obviously yes, therefore, get rid of him.

Nico: So, in that case, you would need certain speech codes, for example –

Stanley: No, you wouldn’t.

Nico: Well, yes. Or you need to tell them that they can’t be on Twitter, and they can’t express any opinion outside of that.

Stanley: A good idea. A good idea. In other words, it shouldn’t be the case. You know, if the NBA were to say, look, we’re in the entertainment business. Right. We’re trying to grow that business. What we’ve discovered is that any intervention by us as a league or by individuals who work for us enter the political realm harbors trouble. Therefore, we are now saying that no one who works for the NBA, coach, player, team official, should in fact make political pronouncements.

Nico: That’s a speech code though. That’s a code that prescribes political speech. I’m not saying –

Stanley: It’s not a – calling it a speech code, I resist your –

Nico: Characterization.

Stanley: Characterization of a speech code. No, it’s saying, look, this kind of talk if it’s engaged in by people identified with the National Basketball Association is going to redonned to the harm of the National Basketball Association. Therefore, we don’t want any of it. I suppose you could call it a speech code in the same manner that you could label something a dress code. You know, that there are rules that the NBA has which are not articulated but are obviously enforce that its players and coaches when they appear on camera are supposed to appear in ways that suggest that they are normal, reasonable human beings. So, yeah.

It’s a speech code in a way, but it’s a speech code that has nothing to do with speech. It’s a speech code if you want to call it that which is instituted because the people who are members of the NBA enterprise recognize that their first obligation is to ensure the health, stability, and growth as I said before, of that enterprise. Same with the university. University administrators, who are in general clueless about everything but especially about the jobs that they have and the responsibilities that attend those jobs, should never be worried about the free speech rights of their employees or students or faculty or staff.

What they should be worried about, again, is the health of the enterprise. The question they should be asking is this flourishing of this activity even if the activity is speech helpful to the educational mission or hurtful to the educational mission. If the answer is hurtful to the educational mission, axe it whether it’s speech or anything else.

Nico: Our argument, of course, would be that speech is helpful to the mission. I mean, we just had the conversation –

Stanley: Sometimes.

Nico: About deliberation and –

Stanley: Occasionally. Occasionally. As I say –

Nico: Doesn’t the free speech –

Stanley: In the book, free speech values and academic values do intersect. If we had a Venn diagram, they would intersect, you know, just at the edges. But in general, they are not the same thing unless you deny or disagree with my distinction between freedom of speech as a value and freedom of inquiry.

Nico: Well, I don’t disagree with them as separate values, but I think the overlap in that Venn diagram –

Stanley: Maybe larger than I think.

Nico: Larger than you think it is. To me, the freedom to inquire – and we can finish up here. I think we’re at an hour –

Stanley: Somebody is coming; but when they knock on the door, we’ll finish.

Nico: All right. We’ll give it five minutes.

Stanley: Whatever you want.

Nico: The freedom to inquire presumes freedom to express opinions about the things you’re inquiring about.

Stanley: No, no. That’s too abstract for me.

Nico: Too abstract for you.

Stanley: Oh, very much too abstract. The freedom to inquire – freedom of inquiry is defined by the goal of the enterprise. The goal of the enterprise is to advance the search for truth, to attempt to get the truth about matters in the humanity social sciences, physical sciences, mathematics, and computer sciences. Okay. That’s freedom of inquiry. Freedom of inquiry is instituted because it’s generally recognized that we’re not going to be able to ascertain the truth about a matter if either some view of it is anointed in advance, the preferred one, or other views of it are dismissed in advance as ones that should never be heard.

That’s a point of overlap between freedom of inquiry and freedom of speech. In both instances, the presumption is that you should anoint truths or stigmatize candidates for the truth in advance. There’s a point of similarity. But after that, I think the two enterprises diverge. Because as I put it before, what the university is is generally a mechanism of exclusion of voices rather than allowing of all voices into the mix. Now, in allowing of all voices into the mix is, in fact, what lets a student’s requesting when they think their opinions should be heard in a classroom if they wish to utter them.

Of course, it is my view that a student opinion should be heard in the classroom only if the instructor wants it to be heard. The instructor can say I’m not interested, which is what I say to my students. I’m not interested in any of your opinions. So, don’t give them to me.

Nico: See, now, I don’t disagree with you there. It’s not the position of Fire that students should have free reign to control the classroom. We believe professors have the right to control that aspect of the classroom. Now, we institutionally don’t have strong opinions on what is good pedagogy and what is bad pedagogy. We generally believe that you learn more by having that freedom to inquire, that freedom to express your innermost thoughts and prescribing those thoughts hinders the academic enterprise. It hinders it.

Stanley: I disagree entirely because most students haven’t got enough thought in their heads. There’s a friend of mine who is a noted theologian by the name of Stanley Hauerwas who was once asked by a student after class why don’t you let more of us speak. Don’t you want us to tell you what’s on our minds? Hauerwas replied you don’t have a mind yet. It’s my job to give you one.

Nico: So, you’re not a big fan then of the Socratic method.

Stanley: I’ve used it occasionally. I think there are many, many pedagogical techniques. All of them can be useful in different context, but I don’t regard the Socratic method as a singularly valuable one. Sometimes pedagogical situations call for it; sometimes it doesn’t it. I’m a pragmatist in that matter.

Nico: But do you believe that professors need to put differing ideas into their students’ head and force them to grapple with it.?

Stanley: No. Depends. For example, I teach Milton, or I used to teach Milton. There are many, many Miltonic approaches to Milton. As far as I’m concerned, the only crucial approach to Milton is through his theology. That is, I believe his works are all theological. That in order to understand what’s going on in not only the prose works but in the great poems like Paradise Lost and Paradise Regained and Sampson Agonistes that you have to be steeped in Milton’s theology. Now, other people will teach Freudian Milton.

Other people will teach Milton geared towards questions about social justice and other issues. My attitude toward them is they can teach whatever they want, But in my class, what we’re going to be talking about is Milton’s theology and the way in which it is realized in both his polemical work and his literary work. That’s it. I’m not interested in other perspectives on Milton because I don’t think those other perspectives on Milton really pay off.

Nico: But you had to first consider those perspectives before believing that your perspective is the valid one to teach.

Stanley: What’s the content of consider in the sentence you just –

Nico: Well, you had to learn this Freudian perspective in order to realize that it wasn’t a better perspective than the one you currently harbor. The same way that your discourse about science that we just had is something that I need to consider before I reject it.

Stanley: Yeah, sure. Sure. So, what’s your point? What’s your next point?

Nico: Well, my point is it’s important to present all these considerations.

Stanley: Oh, no, no. You slid. When I was studying – when I was becoming an academic who presumably, you know, was acting responsibly with respect to my presentations in class, I was aware of many approaches to my subject. The majority of which I chose not to adopt for myself. Right. That’s what you’re saying.

Nico: Yes.

Stanley: All right. But that doesn’t translate into a pedagogical obligation to put my students through the same experience. Unless, let’s say – come on in – unless, I’m –

Nico: You hear me arguing with him. We’ll be done in a second.

Stanley: Unless – you can take, no, actually – all right – unless, I’m teaching. Let’s say I’m teaching a course with the title which is Approaches to Literary Theory. Or more likely these days, I would teach a course called Approaches to Legal Interpretation. If I have titled my course Approaches to Legal Interpretation, it’s part of my obligation, I believe, to introduce my students to all of the candidates in the field, not only the one or two that I find persuasive.

That’s because that’s the kind of course I’m teaching. I’m teaching a course which surveys approaches to legal interpretation. Another kind of course where I wasn’t doing that but was doing something narrower, I would feel no obligation to survey all the approaches.

Nico: But your points are elucidated by at least acknowledging those other points as you do in this book, The First. I mean, you present arguments on both sides before explaining why your point is the best one. I think that’s – I mean, it’s my position that it’s a good way to approach the issues.

Stanley: In some cases. Again, I return to my point that pedagogically that is sometimes a useful way to proceed, and sometimes it’s not. But people who decide not to do it, for example, adopt the old lecture method where you stand up for 50 minutes and tell the students the truth. That’s fine. Other people want to engage students in what you called a few moments ago Socratic dialogue. That’s fine. You know, it’s just that I’m not – I don’t want to anoint one of these as the preferred method because of some general idea of the way in which the mind best works. You’ve got to examine some of these ideas that you’re so in love with.

Nico: Well, I hope that’s what we did on this episode, professor.

Stanley: Very good.

Nico: I hope that’s what we did. You’ve got a student in your office here. So, I’m going to wrap it up. The book is The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump. It comes out on November 5th. I will have a link to order the book in the show notes to this podcast. Professor, thank you so much for coming along.

Stanley: Thank you. You were great.

Nico: Thank you. This podcast is hosted and produced by me, Nico Perrino. Recorded by me as well. It is edited by my colleague Aaron Reese. To learn more about So to Speak, you can follow us on Twitter at twitter.com/freespeechtalk. Twitter which is something Professor Fish is not the biggest fan of. Or you could like us on Facebook at facebook.com/sotospeakpodcast. You can also email us feedback at sotospeak@thefire.org. If you enjoyed this episode, please consider leaving us a review on Apple podcasts or Google Play. They help us attract new listeners to the show. Until next time, thanks again for listening.