PC or Not PC, That is the Question

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At  the time, Fish had no appropriate book of his own with which to counter.  No  longer.</div> <bR> <div>  </div> <div>    There's No Such Thing as Free Speech, a collection of essays written for  those debates as well as other previously published articles, is Fish's take on  the so-called culture wars, the First Amendment, and other assorted topics.</div> <bR> <div>  </div> <div>    The essays vary widely in their clarity and accessibility (at least to those  who haven't had the opportunity to study Derrida, deconstructionism, and  hermeneutics).  And while Fish makes some interesting observations and writes  with occasional wit, his essays will likely change few minds.</div> <div>  </div> <bR> <div>    Fish argues that there are no timeless, transcendental truths beyond partisan  vision.  There is no such thing as human objectivity, because everything is  viewed from a particular vantage point.  For Fish, all human activity takes  place in local, particular settings or contexts that are tied to specific times  and places, and an actor cannot avoid being influenced by the norms and  standards of the local endeavor.</div> <bR> <div>  </div> <div>    Under this view, the call by people like former Secretary of Education  William Bennett and former National Endowment for the Humanities Director Lynne  Cheney for a canon of literature whose "truths . . . pass beyond time and  circumstance; truths that, transcending accidents of class, race and gender,  speak to us all," to quote a 1988 NEH report, is impossible to realize.  But  accordingly to Fish, the anti-PC crowd is more than innocently wrongheaded: Its  members are trying to establish and maintain their own political program as the  dominant one.  The champions of the Western Civilization canon "would arrest the  play of democratic forces in order to reify as transcendent a particular and  uncommon stage in cultural history.  The politics would stop time and elevate  one set of tastes to a position of privilege from which it could then label all  other tastes as vulgar, inessential, and corrupting."</div> <bR> <div>  </div> <div>    Ultimately, what Fish wants is for the conservatives to come clean and admit  that, in denouncing political correctness, they are in fact pursuing their own  political agenda.  This seems a fair charge.  But, ironically, while Fish  accuses his opponents of squelching debate by beating those associated with  political correctness about the head with the PC epithet, Fish does the anti-PC  forces one better by suggesting that all cultural conservatives are racists --  an allegation that is an even larger club with which to intimidate opponents.</div> <bR> <div>  </div> <div>    Fish wields the club in a chapter entitled "Bad Company." Here, he briefly  describes the historian Arthur Schlesinger Jr.'s book The Disuniting of America:  Reflections on a Multicultural Society, in which Schlesinger, a prominent  liberal, asks immigrants and minorities in America to assimilate into "a common  culture, a single nation."</div> <div>  </div> <bR> <div>    The author compares The Disuniting of America with racist tracts of the 19th  and early 20th centuries and concludes that "they are the same books." But, of  course, they are not.</div> <bR> <div>  </div> <div>    Schlesinger is motivated by a non-racial, non-nationalistic belief that the  United States was founded upon certain democratic principles, ones that should  serve to unite all Americans who came to this country lacking a common ethnic  heritage.  Fish does not analyze or dispute this argument; it is easier for him  to dismiss the argument's proponent by saying that "Schlesinger [and others] may  not be racists in the manner of their predecessors, but in the absense of the  real thing . . . they will do." This mode of ad hominem argument is unlikely to  earn Fish much respect.</div> <bR> <div>  </div> <div>    Fish's contention that there are no objective standards finds its way into a  discussion of First Amendment jurisprudence.  Many proponents of free speech  will find Fish's gloss inaccurate in its description of current First Amendment  practice and insufficiently protective of speech in its prescription of how the  First Amendment ought to work.  In the title essay, Fish writes:  Abstract concepts like free speech do not have any "natural" content but are  filled with whatever content and direction one can put into them.  . . .</div> <bR> <div>  </div> <div>    . . . Speech, in short, is never a value in and of itself but is always  produced within the precincts of some assumed conception of the good to which it  must yield in the event of conflict.  When the pinch comes (and sooner or later  it will always come) and the institution (be it church, state or university) is  confronted by behavior subversive of its core rationale, it will respond by  declaring "of course we mean not tolerated -- , that we extirpate," not because  an exception to a general freedom has suddenly and contradictorily been  announced, but because the freedom has never been general and has always been  understood against the background of an originary exclusion that gives it  meaning.</div> <bR> <div>  </div> <div>    Many examples exist to refute the author's argument that the state and other  institutions cannot judge speech in a content-neutral way and tolerate speech  they find subversive.  The government permits subversive speech all the time.  Cohen v. California, in which the Supreme Court in 1971 protected anti-draft  speech in a courthouse, comes to mind as a well-known illustration.  Perhaps  even more dramatically, the ACLU regularly defends the free-speech rights of  fascists and Ku Klux Klan members who would surely subvert the organization's  "core rationale" by circumscribing the civil liberties of others if they could  do so, suggesting that the principle of content neutrality does have some  meaning.</div> <bR> <div>  </div> <div>    In a chapter entitled "Jerry Falwell's Mother, or, What's the Harm?" Fish  contends that a major flawed assumption underlying First Amendment law is that  speech is distinguishable from action on the basis of their respective effects,  one being a form of behavior that is safely confined to the realms of cognition  and expression, the other a form of behavior whose consequences spill out into  the world, where they can threaten a person's bodily comfort or livelihood or  quality of life.</div> <bR> <div>  </div> <div>    But the underpinning of constitutionalized defamation law isn't that "sticks  and stones may break my bones, but words will never harm me." (Although I do  believe that Fish exaggerates the injury, if any, that Jerry Falwell suffered by  reason of Hustler magazine's crude and ludicrous parody depicting him and his  mother together in an outhouse -- in fact, donations to Falwell's Moral Majority  increased following the publication of the Hustler parody.) Rather, a major  premise of defamation doctrine is that some speech is demonstrably true or false (facts) while other speech is not (ideas or opinions), and that the government  will not regulate ideas.</div> <bR> <div>  </div> <div>    Fish, however, takes issue with the principal articulated in the 1974  decision in Gertz v. Robert Welch Inc, that under the First Amendment "there is  no such thing as a false idea," and because he's apparently confident in his  ability to decide which ideas are false and which are true, he is willing to  take appropriate action.</div> <div>  </div> <bR> <div>    Although Fish argues that objective line-drawing is impossible and that  case-by-case balancing is the way to proceed, he doesn't mind letting  legislatures declare, say, that regardless of literary, artistic, political, or  scientific value, actionable pornography consists of "the graphic sexually  explicit subordination of women, whether in pictures or in words." The quoted  language is from the Indianapolis ordinance drafted largely by Catharine  MacKinnon and struck down as unconstitutional in 1986 by the Supreme Court in  American Booksellers Association v. Hudnut. Fish's support of the ordinance is  an example of his comfort in letting one group -- here, the government --  prescribe what shall be orthodox and permissible in matters of politics and  speech.  It is precisely what critics indict as dangerous political correctness.</div> <bR> <div>  </div> <div>    Almost as strikingly, Fish is not at all concerned about how judges may  interpret undefined terms in the Indianapolis statute such as "subordination,"  "sexual objects," "exploitation," "servility," and "submission," not to mention  "sexually explicit." Nor does Fish acknowledge the chilling effect that such a  law has.  He extols Canada's less-protective attitudes toward speech, but Canada  has enacted a law similar to the Indianapolis ordinance, and there have been  reports of several serious books disappearing from the shelves of Canadian  bookstores as a consequence.</div> <bR> <div>  </div> <div>    Many essays in Fish's book were written for highly specialized academic  audiences and will not be perspicuous (the author's favorite word) to the  general reader who may not know reader-response theory from the New Historicism.  Fish himself recognizes the problem when he admits, "There is a set of problems  of translation and rhetorical accommodation that one comes upon when attempting  to talk to audiences outside the academy which is absolutely fascinating and  difficult." Unfortunately, however, the author did little but reprint verbatim  several essays directed at narrow segments of the academy.  (And the volume's  introductory essay is not terribly elucidating or helpful.) Thus, he has not  succeeded at the "rhetorical accommodation" he recognizes as necessary to reach  a general audience.</div> <div>  </div> <bR> <div>    Yet one of the book's more interesting insights is that, even if we accept  Fish's view that there are no timeless or transcendent truths knowable to man,  we need not fear sliding into a standardless abyss because the process of being  socialized into a particular field requires one to act within that field's norms  and standards.</div> <div>  </div> <bR> <div>    Perhaps it is because Fish, a non-lawyer, was never socialized into the First  Amendment law as a law student and attorney that he has missed the norms and  standards of First Amendment doctrine that most of the rest of us find so  compelling.</div> <bR> <div> <I>Martin Kimel is an attorney in Washington, D.C.</I></div> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <div>   <script type="text/javascript" language="JavaScript">var site="sm4sitemeter"</script> <script type="text/javascript" language="JavaScript1.2" src="http://sm4.sitemeter.com/js/counter.js?site=sm4sitemeter"> </script> <noscript> <a href="http://sm4.sitemeter.com/stats.asp?site=sm4sitemeter" target="_top"> <img src="http://sm4.sitemeter.com/meter.asp?site=sm4sitemeter" alt="Site Meter" border=0></a> </noscript>    </div> <bR> </td> </tr></table></body>