Make Our Institutions Great Again
What else can we possibly say about Stanley Fish? He’s been publishing more or less the same book for decades, and thus many of the criticisms and enthusiasms that have greeted his books over the years are relevant to his newest, The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump. Indeed, one of its central arguments is captured in the title of Fish’s 1994 work, There’s No Such Thing as Free Speech… and It’s a Good Thing, Too. Nonetheless, The First is notable both for its refreshing, Fishian reframing of contemporary “free speech” controversies, and also because it can be read as offering a response to a question posed implicitly by Terry Eagleton twenty years ago, which has gained an arresting new piquancy: how similar are Stanley Fish and Donald Trump?
Eagleton broached the comparison in a gleeful, eviscerating London Review of Books response to Fish’s 1999 The Trouble with Principle, which charged that Stanley Fish “is the Donald Trump of American academia, a brash, noisy entrepreneur of the intellect who pushes his ideas in the conceptual marketplace with all the fervour with which others peddle second-hand Hoovers.” In 1999, the comparison was mainly stylistic—both men were, and continue to be, pugnacious, self-promoting, and highly successful in spite of being reviled among many in their professional circles. Both men disavow principle: Fish via postmodern thought, which counsels skepticism toward anything claiming ahistorical, universal truth. Both men presumably disdain Volvos and the academics who drive them. Fish’s famous essay “The Unbearable Ugliness of Volvos” is both an early critique of what we now call virtue-signaling and a caricature of academic self-abasement; academics love ugly cars because we “like to eat shit.”
In 2022, the more damning point of comparison between the two men is their shared embrace of our post-truth conditions. Indeed, numerous think-pieces have appeared since 2016 charging that postmodernists like Fish, by claiming that all accounts of “truth” and “principle” are merely narratives subject to unraveling, have brought us post-truth politics and a Donald Trump presidency.
In The First, Fish weighs in on the accusation. The First is ostensibly about “freedom of speech,” but as its lengthy subtitle indicates, speech is Fish’s entrée into contemporary “culture wars,” and the book culminates in an examination of the relationship between Trump, post-truth politics, and postmodern theorists. Fish seeks to clear postmodernists of the charge that they’ve ushered in the era of fake news and alternative facts. Postmodernism, he writes, “is at most a report on [post-truth conditions], not the cause.”
We have always been “post-truth” in Fish’s sense, in which “truth has receded behind mediating curtains.” “The basic postmodernist thesis,” he explains, “is that our access to the world is never direct but is mediated by deeply held assumptions, political and cultural perspectives, disciplinary vocabularies, in-place paradigms—in short by the variable and changing categories of cognition that inform and shape our perception and understanding.” In between us and “reality” there will always be curtains of belief. For postmodernists, not only is there no end to the curtains, there is not even an authentic self beguiled by curtains: our ideal of an autonomous, rational self is a particularly hefty set of curtains. Postmodernists help us see that this is the case, but it is not their fault if some have harnessed a reductive version of the postmodern thesis to political ends that clash with our own cherished curtains.
There are two main arguments in The First. The primary argument is that “free speech” is an illusory ideal and exposing its lack of concrete content gives needed clarity to supposed First Amendment controversies. The Constitution’s ambiguity on the nature of “speech” makes the content of the First Amendment “squishy,” available to whoever provides the stronger argument about its meaning. In this portion of his argument, Fish’s postmodernist skepticism works hand in hand with a kind of legal pragmatism to assert that what we need is not a transcendent free speech principle, but rather, persuasive arguments.
The book’s second, related argument runs like this: in the absence of absolute authorities to ground our interpretation of the First Amendment or of “truth” itself, we need firm, if also changeable, institutional authorities. In the realm of free speech jurisprudence, this means we need trustworthy, skilled lawyers and judges to navigate an ambiguous territory; “freedom of speech” will mean whatever they persuade us it means. In the realm of politics and social life, we need trustworthy custodians of the curtains that mediate truth. We need “the authoritative (although not God-sponsored) institutions we have painfully built through the centuries, the institutions of philosophy, morality, science, higher education, record-keeping, journalism, etc.” Whereas the Enlightenment dethroned the authorities of the Church and monarchy and erected the individual’s own judgment in their place, postmodernism dethrones the individual and, in Fish’s analysis, sends us reeling for new external authorities. By countering the core convictions of liberalism and the Enlightenment—exposing the alleged rational human actor and definitions of “progress” as ideological constructions, for example—postmodernist philosophy, as Fish sees it, indicates that we ought to reconcile ourselves to our dependence on authority, however changeable that authority is.
This is why Fish’s postmodernism is not a license for anything-goes subjectivism and deceit: denied unmediated access to truth, we should not abandon our quest for truth, but should rather accept—and critique—its mediators. It is a subtle irony that Fish’s critique of liberalism’s fantasy of the rational individual leads him to advocate for restoring the authority of institutions established centuries ago in liberalism’s image, particularly the free press and the research university. He does so with a wink that signals he’s a postmodern liberal, aware of the contingencies and flaws of his commitments. Winks notwithstanding, Fish does not subject these institutional authorities to much critique.
Here glimmers the actual, subtle affinity between Stanley Fish and Donald Trump. The two are not linked by a careless relation to truth, but by a nostalgic relation to authority. The authorities they seek to shore up are different, of course—I will return to this—but in both cases they are backward-glancing and in tension with democratic values.
In short, Fish’s postmodernist anti-foundationalism, its refusal of absolute authority as such, leads him to double down on the authorities we establish in our midst. Is this necessarily where the critique of authority leads? Do we in fact need stabilizing powers to guarantee our ties to a shared, common world? The answer to these questions is a qualified yes—we do need shared authorities and norms, but they might be more democratically conceived than Fish suggests. We also need to recognize when and how our institutions contribute to the political messes we decry. Neither of these points is fundamentally at odds with Fish’s version of postmodernism, but neither are they encompassed by it.
* * *
Fish’s longtime readers will not find new arguments in The First. They will, however, find compelling grist for a familiar mill. The book repurposes claims—and at times, verbatim sentences—that he has honed over decades as a literary and legal scholar. Its primary claim is that “free speech” is an impossible ideal, a fantasy. Fish prescribes a pragmatic, postmodernist orientation toward “free speech” and other ideals: we understand the world through beliefs (about speech, truth, justice, etc.), which are ultimately groundless, and this is ok. We make do. We have no alternative: “beliefs are not entities we think with; they are what we think within.” If we acknowledge that we live and think within beliefs, rather than striving to repudiate them in favor of an intellectual purity we will never gain, we can judge our conditions more clearly. Freedom of speech, like all alleged principles, is a fantasy, but we ought to go along with it, as long as it is useful.
Into this framework The First feeds contemporary issues in the “culture wars” of the past decade in the US, including hateful Tweets, conservative bakers who refuse to provide cakes for gay weddings, campus protests and trigger warnings, and the “fake news” proliferating online. As Fish observes, these issues are popularly linked, sometimes tenuously, to the ideal of freedom of speech and the beliefs associated with it, such as the liberal faith in the marketplace of ideas and the benefit of transparency. The book’s unifying conceit is that today’s disputes over “free speech” reflect a collective state of confusion about the fundamental rights and values expressed by the First Amendment.
This confusion, Fish argues, results in large part from the ambiguity of the underlying ideal. “Freedom of speech,” he writes in the opening pages, “is not a thing but a promissory note that can never be cashed in.” No speech, he maintains, is ever truly “free” insofar as sounds only count as speech when they meet constraining criteria of language use; moreover, many people mistakenly believe that “free speech” means speech without consequences. Speech always has consequences.
The cash metaphor underscores one of Fish’s primary points: every invocation of freedom of speech is motivated not by respect for the ideal in the abstract, but by an effort to gain something by it. There is no neutral free speech principle—the abstractions of liberalism are in practice lofty nonsense, useful cover in the partisan struggles that actually constitute politics. “Although it is often invoked as a principle with its own shape,” Fish writes, “freedom of speech is given shape (and content) by the partisan agents skillful enough to appropriate its vocabulary for their preferred ends.” These agents might be fascists or labor activists, porn publishers or satirists, wealthy corporations or evangelical business owners—they, and their lawyers, have reshaped our definitions of both freedom and speech over many generations.
Each of The First’s chapters describes recent efforts to “cash in” on freedom of speech, and each confirms that no abstract principle has been at stake. In some cases, constitutional rights are simply irrelevant because the censorship a person has experienced comes from the private sector. Roseanne Barr’s constitutional rights were not at stake when ABC fired her following her racist tweets about Valerie Jarrett. Nor were Colin Kaepernick’s when his NFL career abruptly ended, after he began kneeling during the “Star Spangled Banner” in protest against police violence. In his chapter on campus politics, Fish offers the refreshing argument that most drama on college campuses has nothing to do with freedom of speech, but instead reveals disputes over the central function of higher education. The chapter chastises both activist students and fossil fuel divestment campaigns, but not because they “censor” speech. Here, Fish’s criticism is muddled by an uncharacteristically idealistic commitment to what he calls the “spirit of the enterprise” of higher education, which in his view is “the advancement of knowledge.” In deference to the “spirit” animating higher education institutions, Fish thinks universities should not do anything that signals partisan politics. He perfunctorily acknowledges that strict boundaries between politics and education are impossible, while nonetheless suggesting that his preferred model of higher education (which evokes 19th-century Berlin) is, in its spirit, politically neutral.
As tends to happen, an appeal to the “spirit” of an enterprise diverts attention from its material features––which in this case include escalating student debt, precarious employment prospects both within the university itself and awaiting students upon graduation, a cultural context laced with racism and misogyny, and a genuine crisis in all material conditions due to climate change. Such material baggage ought to factor into any analysis of the politics of higher education (and of the stridency with which a minority of students is demanding change). Fish is correct, however, to distinguish these issues from “freedom of speech.” When undergraduates disrupt speeches by alt-right demagogues on their campuses, or request trigger warnings and syllabus changes, they are not wielding the power of the state—and thus do not threaten constitutional rights—and, more significantly, universities should not be considered free speech zones. As Fish writes, “freedom of speech is not an academic value; freedom of inquiry is.”
Unsurprisingly, Fish’s general argument about the First Amendment emphasizes the text’s ambiguity, in addition to the ambiguity of the principle it supposedly enshrines. The chapter on “religious speech” ultimately concludes that the liberal pluralism of the Constitution as a whole is “irreconcilable” with traditional religious faith, and the Religion Clause thus “doesn’t belong in the Constitution.” The central ambiguity of the First Amendment concerns, of course, “speech” itself. The Constitution defines neither “speech” nor speakers, and many disagreements stem from these omissions. For those who haven’t committed the Amendment to memory, it reads: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.” (I’m not sure what to make of the fact that Fish never quotes the full Amendment.) These lines do not tell us what distinguishes a “peaceable” assembly from one the police can declare “unlawful.” The text does not help us say with certainty when speech becomes action, performing or inciting violence. Fish assumes that speech must occasionally be regulated, and also that determining when speech becomes sufficiently dangerous to be regulated is a political task: the product of a contest between positions, not the product of applying an abstract principle derived from the Constitution or elsewhere.
Again, for Fish the pragmatist, this ambiguity is good: it “makes possible all of the ingenious maneuvers First Amendment jurisprudence so abundantly displays when there is a job to be done,” and we want a legal system responsive to shifting cultural assumptions, values, and constituents. How, after all, could a democracy persist if every new generation remained bound to a text that made its meanings utterly precise? How could a new generation born into such a society set the terms for its own democratic experiments? To use Fish’s characteristic literary-critical vocabulary, we might say that the meaning of the text is intentionally imprecise, that the framers’ language carefully establishes a democracy that can outlive them.
Interpretation takes a central role in this vision of political life. The constitution is a common point of reference just stable enough to ensure that we’re participating in more or less the same debate. But its ambiguity requires us to reinterpret, to seek to apply its spirit to circumstances the framers could never have imagined. The ambiguity of the First Amendment obliges us (or in Fish’s account, our lawyers) to use judgment: a more laborious but also more flexible activity than merely applying rules laid out in advance to situations as they arise.
We’ve reached the point in Fish’s argument in which the absence of textual stability shades into an homage to the stability of other powers. As Fish’s tour of First Amendment jurisprudence demonstrates, the consequence of the “squishiness” of the text is that it can be made to mean different things. Fish is untroubled by his conclusion that the absence of textual certainty leaves us with the certainties established by those possessing powers of analysis, persuasion, and institutional tenure.
* * *
Toward the end of the book, when Fish starts proposing solutions to the problems of so-called “post-truth politics,” his sympathies with existing authorities come even more sharply into focus.
Fish recommends that we trade the quest for principles to ground political life—principles such as “freedom of speech,” “hate speech,” and “truth"—for "local efforts.” If you, dear reader, “dislike Trump and believe that his policies are disastrous,” then Fish suggests that you “labor to defeat him in the next election” instead of decrying his offensive Tweets. If you are “sick of lies and outrageous conspiracy theories,” then you should “pass laws that will penalize those disseminating verbal poison (at least as you see it),” steeling yourself against the accusation that you’re killing freedom of speech. “In short,” Fish counsels, “do what you always do when a situation seems so bad that you fear for the health of the enterprise: roll up your sleeves, marshal the resources available to you, and go out and smite them hip and high.”
By “the resources available,” Fish largely means the resources of liberal institutions, the “authoritative (although not God-sponsored) institutions” I cited earlier. These institutions offer “truths” that serve as “stand-ins for the more objectively grounded ones we can never have in this vale of tears.” Such institutions are, as Fish acknowledges, fallible, partisan, and historical artefacts, rather than purified vessels of enlightenment. But these gatekeepers, with high standards of evidence and argument specific to their particular modes of mediating “truth,” are the best authorities we’ve got in a forever-post-truth world. “We must attend to them, refurbish them, and refine them because nothing else will save us (at least not in this life), and if we relax our hold on them or they on us we will indeed court the abyss so many believe is already ours.”
Any society with democratic aspirations (or rhetoric) needs an independent press, an education system, and disinterested research. These institutions need to maintain high standards. But this conclusion to The First is decidedly unsatisfying, simultaneously obvious and unhelpful. The vision of political work Fish offers appears even more inadequate in light of the right-wing dedication to attacking these institutions and establishing alternative institutions like Fox News, right-wing research centers within universities, and think tanks, which have the aura of institutional authority but play by a separate set of rules.
Fish’s bland conclusion, with its deference to idealized institutional authority, is not the only conclusion available to us denizens of a post-truth world. An alternative approach might start by examining these institutions—and their present imperiled status—in more precise, material terms. We might inquire into how they have faltered, and why, and what specific kinds of work might be involved in “refurbishing” them today. This line of inquiry would suggest considering that higher education might be under attack not—or not only—because radical professors and students have strayed from the spirit of our enterprise, but rather (or also) because defenders of academia tend to offer economic and/or elitist, rather than civic, justifications for the enterprise, which help justify the skyrocketing cost of education to individual students. To Fish’s apt defense of the gatekeeping provided by standards of academic research and discourse, we might add an account of the transformations of academic labor—the increasing reliance of the contemporary university upon precariously employed PhDs and graduate students—transformations that have made the gates more arbitrary and brutal than when Fish entered the academy. Perhaps journalism is no longer trusted because the news has become (like education) utterly commodified, pitched as enlightening but sold as gratifying. Perhaps science no longer enjoys the authority it should because it increasingly takes place through private funding and behind immense paywalls, and because wealth—which our society deems “speech"—is often opposed to the implications of its discoveries. A book that addresses "free speech” dramas and post-truth politics by scrutinizing material realities alongside their mediating curtains would admittedly be an entirely different book, and perhaps it is unfair to criticize Fish on terms so alien to his project. But that other, unwritten book is the book we need, rather than an argument Fish has been making for decades, however insightful its commentary is on today’s “free speech” charades.
In my view, we also need an account of our post-truth conditions that retains the possibility of democratic politics. Our inability to rely upon established principles need not surrender us to established powers. In the absence of a determinant concept of “free speech,” we do not need to rely solely upon lawyers and judges to establish the boundaries of our rights: we need our institutions to be open and accessible to all. We need a robust education system not only because “free inquiry” is important, and higher education yields a (diminishing) return in a graduate’s future earnings, but because an educated populace is essential to good collective self-governance. We need a robust and free press in order to fuel the political judgments of ordinary people, and we need a political system in which ordinary people—rather than wealthy individuals and corporations—have actual power.
There is much more to say about the material conditions that would best nourish collective judgment of the squishy, non-transcendent principles (and resources) governing our collective lives—about the economic, cultural, and institutional changes that would foster genuine democracy—but that is material for another essay. Here, I simply wish to underscore that we can share Fish’s postmodernist views about truth, freedom, and speech, without sharing his conclusions.
Let’s return finally to that initial, arresting question: how similar are Donald Trump and Stanley Fish? The differences are immense, and for the most part I’m happy to throw in my ethical, intellectual, and political lot with Fish and his institutions. Indeed, I largely have done so in my professional life. I love the ideal of free inquiry and I believe in the importance of disciplinary expertise. Fish is right to insist upon the difference between his post-truth convictions and Trump’s cynical exploitation of a moment when our institutional authorities fail to ground a collective sense of truth. But a suggestive similarity between the two men remains. For both, post-truth uncertainty becomes key to an argument in favor of historically-eclipsed models of authority. The models are starkly opposed: for Trump, the model is prejudiced nationalism shored up by emotion and fantasies about the past, present, and possible future of the US, fantasies protected against invalidation by opportunistic denials of the “truth” of all contradictory evidence. For Fish, the model is a postmodern variant of liberalism, premised upon pseudo-beliefs about rational argument and an abstract vision of expert authority. Both men substitute ideals for the particularities of experience. Neither appears sincerely convinced that his model will “save us.” We might say that both Trump and Fish respond to our post-truth conditions by brandishing promissory notes they know can never be cashed in. These promissory notes are indeed fundamental to the very different sorts of authority both men presently enjoy.
Eagleton broached the comparison in a gleeful, eviscerating London Review of Books response to Fish’s 1999 The Trouble with Principle, which charged that Stanley Fish “is the Donald Trump of American academia, a brash, noisy entrepreneur of the intellect who pushes his ideas in the conceptual marketplace with all the fervour with which others peddle second-hand Hoovers.” In 1999, the comparison was mainly stylistic—both men were, and continue to be, pugnacious, self-promoting, and highly successful in spite of being reviled among many in their professional circles. Both men disavow principle: Fish via postmodern thought, which counsels skepticism toward anything claiming ahistorical, universal truth. Both men presumably disdain Volvos and the academics who drive them. Fish’s famous essay “The Unbearable Ugliness of Volvos” is both an early critique of what we now call virtue-signaling and a caricature of academic self-abasement; academics love ugly cars because we “like to eat shit.”
In 2022, the more damning point of comparison between the two men is their shared embrace of our post-truth conditions. Indeed, numerous think-pieces have appeared since 2016 charging that postmodernists like Fish, by claiming that all accounts of “truth” and “principle” are merely narratives subject to unraveling, have brought us post-truth politics and a Donald Trump presidency.
In The First, Fish weighs in on the accusation. The First is ostensibly about “freedom of speech,” but as its lengthy subtitle indicates, speech is Fish’s entrée into contemporary “culture wars,” and the book culminates in an examination of the relationship between Trump, post-truth politics, and postmodern theorists. Fish seeks to clear postmodernists of the charge that they’ve ushered in the era of fake news and alternative facts. Postmodernism, he writes, “is at most a report on [post-truth conditions], not the cause.”
We have always been “post-truth” in Fish’s sense, in which “truth has receded behind mediating curtains.” “The basic postmodernist thesis,” he explains, “is that our access to the world is never direct but is mediated by deeply held assumptions, political and cultural perspectives, disciplinary vocabularies, in-place paradigms—in short by the variable and changing categories of cognition that inform and shape our perception and understanding.” In between us and “reality” there will always be curtains of belief. For postmodernists, not only is there no end to the curtains, there is not even an authentic self beguiled by curtains: our ideal of an autonomous, rational self is a particularly hefty set of curtains. Postmodernists help us see that this is the case, but it is not their fault if some have harnessed a reductive version of the postmodern thesis to political ends that clash with our own cherished curtains.
There are two main arguments in The First. The primary argument is that “free speech” is an illusory ideal and exposing its lack of concrete content gives needed clarity to supposed First Amendment controversies. The Constitution’s ambiguity on the nature of “speech” makes the content of the First Amendment “squishy,” available to whoever provides the stronger argument about its meaning. In this portion of his argument, Fish’s postmodernist skepticism works hand in hand with a kind of legal pragmatism to assert that what we need is not a transcendent free speech principle, but rather, persuasive arguments.
The book’s second, related argument runs like this: in the absence of absolute authorities to ground our interpretation of the First Amendment or of “truth” itself, we need firm, if also changeable, institutional authorities. In the realm of free speech jurisprudence, this means we need trustworthy, skilled lawyers and judges to navigate an ambiguous territory; “freedom of speech” will mean whatever they persuade us it means. In the realm of politics and social life, we need trustworthy custodians of the curtains that mediate truth. We need “the authoritative (although not God-sponsored) institutions we have painfully built through the centuries, the institutions of philosophy, morality, science, higher education, record-keeping, journalism, etc.” Whereas the Enlightenment dethroned the authorities of the Church and monarchy and erected the individual’s own judgment in their place, postmodernism dethrones the individual and, in Fish’s analysis, sends us reeling for new external authorities. By countering the core convictions of liberalism and the Enlightenment—exposing the alleged rational human actor and definitions of “progress” as ideological constructions, for example—postmodernist philosophy, as Fish sees it, indicates that we ought to reconcile ourselves to our dependence on authority, however changeable that authority is.
This is why Fish’s postmodernism is not a license for anything-goes subjectivism and deceit: denied unmediated access to truth, we should not abandon our quest for truth, but should rather accept—and critique—its mediators. It is a subtle irony that Fish’s critique of liberalism’s fantasy of the rational individual leads him to advocate for restoring the authority of institutions established centuries ago in liberalism’s image, particularly the free press and the research university. He does so with a wink that signals he’s a postmodern liberal, aware of the contingencies and flaws of his commitments. Winks notwithstanding, Fish does not subject these institutional authorities to much critique.
Here glimmers the actual, subtle affinity between Stanley Fish and Donald Trump. The two are not linked by a careless relation to truth, but by a nostalgic relation to authority. The authorities they seek to shore up are different, of course—I will return to this—but in both cases they are backward-glancing and in tension with democratic values.
In short, Fish’s postmodernist anti-foundationalism, its refusal of absolute authority as such, leads him to double down on the authorities we establish in our midst. Is this necessarily where the critique of authority leads? Do we in fact need stabilizing powers to guarantee our ties to a shared, common world? The answer to these questions is a qualified yes—we do need shared authorities and norms, but they might be more democratically conceived than Fish suggests. We also need to recognize when and how our institutions contribute to the political messes we decry. Neither of these points is fundamentally at odds with Fish’s version of postmodernism, but neither are they encompassed by it.
Fish’s longtime readers will not find new arguments in The First. They will, however, find compelling grist for a familiar mill. The book repurposes claims—and at times, verbatim sentences—that he has honed over decades as a literary and legal scholar. Its primary claim is that “free speech” is an impossible ideal, a fantasy. Fish prescribes a pragmatic, postmodernist orientation toward “free speech” and other ideals: we understand the world through beliefs (about speech, truth, justice, etc.), which are ultimately groundless, and this is ok. We make do. We have no alternative: “beliefs are not entities we think with; they are what we think within.” If we acknowledge that we live and think within beliefs, rather than striving to repudiate them in favor of an intellectual purity we will never gain, we can judge our conditions more clearly. Freedom of speech, like all alleged principles, is a fantasy, but we ought to go along with it, as long as it is useful.
Into this framework The First feeds contemporary issues in the “culture wars” of the past decade in the US, including hateful Tweets, conservative bakers who refuse to provide cakes for gay weddings, campus protests and trigger warnings, and the “fake news” proliferating online. As Fish observes, these issues are popularly linked, sometimes tenuously, to the ideal of freedom of speech and the beliefs associated with it, such as the liberal faith in the marketplace of ideas and the benefit of transparency. The book’s unifying conceit is that today’s disputes over “free speech” reflect a collective state of confusion about the fundamental rights and values expressed by the First Amendment.
This confusion, Fish argues, results in large part from the ambiguity of the underlying ideal. “Freedom of speech,” he writes in the opening pages, “is not a thing but a promissory note that can never be cashed in.” No speech, he maintains, is ever truly “free” insofar as sounds only count as speech when they meet constraining criteria of language use; moreover, many people mistakenly believe that “free speech” means speech without consequences. Speech always has consequences.
The cash metaphor underscores one of Fish’s primary points: every invocation of freedom of speech is motivated not by respect for the ideal in the abstract, but by an effort to gain something by it. There is no neutral free speech principle—the abstractions of liberalism are in practice lofty nonsense, useful cover in the partisan struggles that actually constitute politics. “Although it is often invoked as a principle with its own shape,” Fish writes, “freedom of speech is given shape (and content) by the partisan agents skillful enough to appropriate its vocabulary for their preferred ends.” These agents might be fascists or labor activists, porn publishers or satirists, wealthy corporations or evangelical business owners—they, and their lawyers, have reshaped our definitions of both freedom and speech over many generations.
Each of The First’s chapters describes recent efforts to “cash in” on freedom of speech, and each confirms that no abstract principle has been at stake. In some cases, constitutional rights are simply irrelevant because the censorship a person has experienced comes from the private sector. Roseanne Barr’s constitutional rights were not at stake when ABC fired her following her racist tweets about Valerie Jarrett. Nor were Colin Kaepernick’s when his NFL career abruptly ended, after he began kneeling during the “Star Spangled Banner” in protest against police violence. In his chapter on campus politics, Fish offers the refreshing argument that most drama on college campuses has nothing to do with freedom of speech, but instead reveals disputes over the central function of higher education. The chapter chastises both activist students and fossil fuel divestment campaigns, but not because they “censor” speech. Here, Fish’s criticism is muddled by an uncharacteristically idealistic commitment to what he calls the “spirit of the enterprise” of higher education, which in his view is “the advancement of knowledge.” In deference to the “spirit” animating higher education institutions, Fish thinks universities should not do anything that signals partisan politics. He perfunctorily acknowledges that strict boundaries between politics and education are impossible, while nonetheless suggesting that his preferred model of higher education (which evokes 19th-century Berlin) is, in its spirit, politically neutral.
As tends to happen, an appeal to the “spirit” of an enterprise diverts attention from its material features––which in this case include escalating student debt, precarious employment prospects both within the university itself and awaiting students upon graduation, a cultural context laced with racism and misogyny, and a genuine crisis in all material conditions due to climate change. Such material baggage ought to factor into any analysis of the politics of higher education (and of the stridency with which a minority of students is demanding change). Fish is correct, however, to distinguish these issues from “freedom of speech.” When undergraduates disrupt speeches by alt-right demagogues on their campuses, or request trigger warnings and syllabus changes, they are not wielding the power of the state—and thus do not threaten constitutional rights—and, more significantly, universities should not be considered free speech zones. As Fish writes, “freedom of speech is not an academic value; freedom of inquiry is.”
Unsurprisingly, Fish’s general argument about the First Amendment emphasizes the text’s ambiguity, in addition to the ambiguity of the principle it supposedly enshrines. The chapter on “religious speech” ultimately concludes that the liberal pluralism of the Constitution as a whole is “irreconcilable” with traditional religious faith, and the Religion Clause thus “doesn’t belong in the Constitution.” The central ambiguity of the First Amendment concerns, of course, “speech” itself. The Constitution defines neither “speech” nor speakers, and many disagreements stem from these omissions. For those who haven’t committed the Amendment to memory, it reads: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.” (I’m not sure what to make of the fact that Fish never quotes the full Amendment.) These lines do not tell us what distinguishes a “peaceable” assembly from one the police can declare “unlawful.” The text does not help us say with certainty when speech becomes action, performing or inciting violence. Fish assumes that speech must occasionally be regulated, and also that determining when speech becomes sufficiently dangerous to be regulated is a political task: the product of a contest between positions, not the product of applying an abstract principle derived from the Constitution or elsewhere.
Again, for Fish the pragmatist, this ambiguity is good: it “makes possible all of the ingenious maneuvers First Amendment jurisprudence so abundantly displays when there is a job to be done,” and we want a legal system responsive to shifting cultural assumptions, values, and constituents. How, after all, could a democracy persist if every new generation remained bound to a text that made its meanings utterly precise? How could a new generation born into such a society set the terms for its own democratic experiments? To use Fish’s characteristic literary-critical vocabulary, we might say that the meaning of the text is intentionally imprecise, that the framers’ language carefully establishes a democracy that can outlive them.
Interpretation takes a central role in this vision of political life. The constitution is a common point of reference just stable enough to ensure that we’re participating in more or less the same debate. But its ambiguity requires us to reinterpret, to seek to apply its spirit to circumstances the framers could never have imagined. The ambiguity of the First Amendment obliges us (or in Fish’s account, our lawyers) to use judgment: a more laborious but also more flexible activity than merely applying rules laid out in advance to situations as they arise.
We’ve reached the point in Fish’s argument in which the absence of textual stability shades into an homage to the stability of other powers. As Fish’s tour of First Amendment jurisprudence demonstrates, the consequence of the “squishiness” of the text is that it can be made to mean different things. Fish is untroubled by his conclusion that the absence of textual certainty leaves us with the certainties established by those possessing powers of analysis, persuasion, and institutional tenure.
Toward the end of the book, when Fish starts proposing solutions to the problems of so-called “post-truth politics,” his sympathies with existing authorities come even more sharply into focus.
Fish recommends that we trade the quest for principles to ground political life—principles such as “freedom of speech,” “hate speech,” and “truth"—for "local efforts.” If you, dear reader, “dislike Trump and believe that his policies are disastrous,” then Fish suggests that you “labor to defeat him in the next election” instead of decrying his offensive Tweets. If you are “sick of lies and outrageous conspiracy theories,” then you should “pass laws that will penalize those disseminating verbal poison (at least as you see it),” steeling yourself against the accusation that you’re killing freedom of speech. “In short,” Fish counsels, “do what you always do when a situation seems so bad that you fear for the health of the enterprise: roll up your sleeves, marshal the resources available to you, and go out and smite them hip and high.”
By “the resources available,” Fish largely means the resources of liberal institutions, the “authoritative (although not God-sponsored) institutions” I cited earlier. These institutions offer “truths” that serve as “stand-ins for the more objectively grounded ones we can never have in this vale of tears.” Such institutions are, as Fish acknowledges, fallible, partisan, and historical artefacts, rather than purified vessels of enlightenment. But these gatekeepers, with high standards of evidence and argument specific to their particular modes of mediating “truth,” are the best authorities we’ve got in a forever-post-truth world. “We must attend to them, refurbish them, and refine them because nothing else will save us (at least not in this life), and if we relax our hold on them or they on us we will indeed court the abyss so many believe is already ours.”
Any society with democratic aspirations (or rhetoric) needs an independent press, an education system, and disinterested research. These institutions need to maintain high standards. But this conclusion to The First is decidedly unsatisfying, simultaneously obvious and unhelpful. The vision of political work Fish offers appears even more inadequate in light of the right-wing dedication to attacking these institutions and establishing alternative institutions like Fox News, right-wing research centers within universities, and think tanks, which have the aura of institutional authority but play by a separate set of rules.
Fish’s bland conclusion, with its deference to idealized institutional authority, is not the only conclusion available to us denizens of a post-truth world. An alternative approach might start by examining these institutions—and their present imperiled status—in more precise, material terms. We might inquire into how they have faltered, and why, and what specific kinds of work might be involved in “refurbishing” them today. This line of inquiry would suggest considering that higher education might be under attack not—or not only—because radical professors and students have strayed from the spirit of our enterprise, but rather (or also) because defenders of academia tend to offer economic and/or elitist, rather than civic, justifications for the enterprise, which help justify the skyrocketing cost of education to individual students. To Fish’s apt defense of the gatekeeping provided by standards of academic research and discourse, we might add an account of the transformations of academic labor—the increasing reliance of the contemporary university upon precariously employed PhDs and graduate students—transformations that have made the gates more arbitrary and brutal than when Fish entered the academy. Perhaps journalism is no longer trusted because the news has become (like education) utterly commodified, pitched as enlightening but sold as gratifying. Perhaps science no longer enjoys the authority it should because it increasingly takes place through private funding and behind immense paywalls, and because wealth—which our society deems “speech"—is often opposed to the implications of its discoveries. A book that addresses "free speech” dramas and post-truth politics by scrutinizing material realities alongside their mediating curtains would admittedly be an entirely different book, and perhaps it is unfair to criticize Fish on terms so alien to his project. But that other, unwritten book is the book we need, rather than an argument Fish has been making for decades, however insightful its commentary is on today’s “free speech” charades.
In my view, we also need an account of our post-truth conditions that retains the possibility of democratic politics. Our inability to rely upon established principles need not surrender us to established powers. In the absence of a determinant concept of “free speech,” we do not need to rely solely upon lawyers and judges to establish the boundaries of our rights: we need our institutions to be open and accessible to all. We need a robust education system not only because “free inquiry” is important, and higher education yields a (diminishing) return in a graduate’s future earnings, but because an educated populace is essential to good collective self-governance. We need a robust and free press in order to fuel the political judgments of ordinary people, and we need a political system in which ordinary people—rather than wealthy individuals and corporations—have actual power.
There is much more to say about the material conditions that would best nourish collective judgment of the squishy, non-transcendent principles (and resources) governing our collective lives—about the economic, cultural, and institutional changes that would foster genuine democracy—but that is material for another essay. Here, I simply wish to underscore that we can share Fish’s postmodernist views about truth, freedom, and speech, without sharing his conclusions.
Let’s return finally to that initial, arresting question: how similar are Donald Trump and Stanley Fish? The differences are immense, and for the most part I’m happy to throw in my ethical, intellectual, and political lot with Fish and his institutions. Indeed, I largely have done so in my professional life. I love the ideal of free inquiry and I believe in the importance of disciplinary expertise. Fish is right to insist upon the difference between his post-truth convictions and Trump’s cynical exploitation of a moment when our institutional authorities fail to ground a collective sense of truth. But a suggestive similarity between the two men remains. For both, post-truth uncertainty becomes key to an argument in favor of historically-eclipsed models of authority. The models are starkly opposed: for Trump, the model is prejudiced nationalism shored up by emotion and fantasies about the past, present, and possible future of the US, fantasies protected against invalidation by opportunistic denials of the “truth” of all contradictory evidence. For Fish, the model is a postmodern variant of liberalism, premised upon pseudo-beliefs about rational argument and an abstract vision of expert authority. Both men substitute ideals for the particularities of experience. Neither appears sincerely convinced that his model will “save us.” We might say that both Trump and Fish respond to our post-truth conditions by brandishing promissory notes they know can never be cashed in. These promissory notes are indeed fundamental to the very different sorts of authority both men presently enjoy.
