Principle, Pragmatism, and Paralysis: Stanley Fish on Free Speech

2003 ◽  
Vol 16 (2) ◽  
pp. 287-315 ◽  
Author(s):  
Michael Robertson
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Free Market ◽  
Freedom Of Speech ◽  
False Belief ◽  
Main Section ◽  
Stanley Fish ◽  
The Face ◽  
The Relationship

Unlike those who read Fish as declaring that free speech is an illusion or incoherent, I argue that Fish provides a superior explanation of what makes free speech possible, and a more insightful description of what judges are doing when they decide cases under laws which protect it. In this paper I first identify the central philosophical commitment from which Fish derives most of his controversial positions. Next, I demonstrate how his position on free speech in particular flows from this central philosophical commitment. Finally, in the main section of the paper, I consider three serious objections to Fish’s analysis of free speech, and consider how Fish might respond to them. I seek to defend Fish's denial that the relationship between freedom and constraint is one of simple opposition; rather he claims that constraint is the precondition for freedom. He therefore sees all speech as made under conditions of constraint. He also sees a commitment to censoring some speech as inherently contained within any commitment to freedom of speech, and so toleration of all viewpoints is impossible. He denies that any free speech principle can be neutral regarding viewpoints, and he denies that any "free market of ideas" is without bias and exclusions. He therefore rejects the accounts given by American courts deciding cases under the First Amendment which stress a fidelity to neutral principle. Since there are no such principles in existence, such courts are really doing one of two things. Either they are pragmatically advancing a partisan agenda, and constraining some speech in a way which is obfuscated, or their false belief in the existence of neutral principles paralyses them in the face of danger and prevents them from performing this pragmatic exercise.

“[T]his most unnecessary, unjust, and disgraceful war”

2011 ◽  
Vol 12 (1-2) ◽  
pp. 82-103
Author(s):  
Juhani Rudanko
Keyword(s):  
United States ◽  
First Amendment ◽  
Freedom Of Speech ◽  
The United States ◽  
War Of 1812 ◽  
United States Constitution ◽  
The Federalist ◽  
Sedition Act ◽  
The Face ◽  
Federalist Party

This article focuses on face-threatening attacks on the Madison Administration during the War of 1812. The discussion is framed by the First Amendment to the United States Constitution, with the language of the Amendment protecting freedom of speech, and also by the Sedition Act of 1798, which, if it had been made permanent, would have seriously curtailed freedom of speech. The War of 1812 was intensely unpopular among members of the Federalist Party, and their newspapers did not shy away from criticising it. This article investigates writings published in the Boston Gazette and the Connecticut Mirror during the war. It is shown that the criticism took different forms, ranging from accusing President Madison of “untruths” to painting a picture of what was claimed to be the unmitigated hopelessness of his position, both nationally and internationally, and that the criticism also included harsh personal attacks on his character and motives. It is suggested that some of the attacks may be characterised as exhibiting aggravated impoliteness. The article also considers President Madison’s attitude in the face of the attacks.

Where to limit the freedom of speech? Analysis in the context of the First Amendment to the US Constitution and the fighting words doctrine

2021 ◽  
Vol 37 (2) ◽  
pp. 239-256
Author(s):  
Karolina Palka
Keyword(s):  
United States ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
National Socialist ◽  
The Us ◽  
Us Constitution ◽  
Socialist Party Of America ◽  
The Right

This article is about the limits of the right to free speech. The first section provides a brief introduction to this topic, primarily in the context of the First Amendment to the U.S. Constitution. The second section describes the case of Chaplinsky v. New Hampshire, which was fundamental to the topic of this paper because the United States Supreme Court created the so-called "fighting words" doctrine based on it. In the next two sections, two court cases are presented that perfectly demonstrate the limits of the right to free speech in the United States: Snyder v. Phelps and Village of Skokie v. National Socialist Party of America. The fifth part shows the right to freedom of speech in the context of Polish civil, criminal, and constitutional law, as well as acts of international law binding on Poland. The last part is a short summary.

scholarly journals Elonis v. United States: The Doctrine of True Threats: Protecting Our Ever-Shrinking First Amendment Rights in the New Era of Communication

2015 ◽  
Vol 15 (2) ◽  
pp. 197-223
Author(s):  
Mary Margaret Roark
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
New Era ◽  
The Public ◽  
Definition Of ◽  
The U.S

The First Amendment protects one of our most precious rights as citizens of the United States—the freedom of speech. Such protection has withstood the test of time, even safeguarding speech that much of the population would find distasteful. There is one form of speech which cannot be protected: the true threat. However, the definition of what constitutes a "true threat" has expanded since its inception. In the new era of communication—where most users post first and edit later—the First Amendment protection we once possessed has been eroded as more and more speech is considered proscribable as a "true threat." In order to adequately protect both the public at large and our individual right to free speech, courts should analyze a speaker’s subjective intent before labeling speech a "true threat." Though many courts have adopted an objective, reasonable listener test, the U.S. Supreme Court now has the opportunity, in deciding Elonis v. United States, to take a monumental step in protecting the First Amendment right to free speech. By holding that the speaker’s subjective intent to threaten is necessary for a true threat conviction, the Court will restore the broad protection afforded by the First Amendment and repair years of erosion caused by an objective approach.

When Protest and Speech Collide

2018 ◽  
Author(s):  
David Estlund
Keyword(s):  
Free Speech ◽  
Freedom Of Speech ◽  
College Campus ◽  
Moral Principle ◽  
Public Protest ◽  
The Face ◽  
As If

Even when it is not violent, a disruptive public protest often raises our hackles. Even when it is not illegal, we might wonder whether it is morally justifiable. In particular, one of the ways a protest can be disruptive—interfering with the ability of others to speak or express themselves—might seem especially damning. Such speech-interfering protests are often vilified, as if they fly in the face of the principle of freedom of speech, or even of the Constitution itself. Ought a protest’s interfering with the speech of others to count morally against that protest—is it forbidden by a moral principle of free speech? While it will be morally wrong in many cases, the moral presumption against it, even in the setting of a college campus, is not as overwhelming as is often supposed.

Autonomy and Free Speech

2021 ◽  
pp. 60-81
Author(s):  
Catriona Mackenzie ◽  
Denise Meyerson
Keyword(s):  
Free Speech ◽  
Freedom Of Speech ◽  
The State ◽  
Social Conditions ◽  
The Public ◽  
Negative Liberty ◽  
The Social ◽  
Positive Duties ◽  
Negative Duty ◽  
The Relationship

This chapter evaluates the relationship between autonomy and freedom of speech, examining a variety of autonomy-based justifications for the importance of speech and especially of freedom of speech. The differences between these justifications relate not only to the different conceptions of autonomy that underpin them, but also to their different responses to the problem of competing autonomy interests. It is plausible to think that the state should respect, protect, and promote the autonomy of everyone—speakers, listeners, thinkers, bystanders, and members of the public at large. Enhancing the autonomy of some might, however, require restricting the speech of others. The liberty-based conceptions of autonomy prioritize the interests of speakers and listeners and hold that the primary obligation of the state is the negative duty not to interfere with the autonomy of individual speakers and listeners. By contrast, the relational conceptions of autonomy hold that the negative liberty interests of individual speakers and hearers should be balanced against the positive duties of the state to promote the social conditions necessary for the development and exercise of autonomy by all citizens.

Averting Two Dystopias

2012 ◽  
Author(s):  
Corey Brettschneider
Keyword(s):  
Civil Society ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The State ◽  
Democratic Values ◽  
Hate Groups

This introductory chapter provides an overview of value democracy. According to value democracy, all viewpoints should be protected by rights of free speech from coercive bans or punishment. However, the state also has an obligation in value democracy that extends beyond protecting freedom of speech. It should engage in democratic persuasion, actively defending the democratic values of freedom and equality for all citizens when it “speaks.” The notion of state speech is common in First Amendment jurisprudence. It often refers to the various non-coercive functions of the state, ranging from pure expression, such as speeches, to issues of funding. By using democratic persuasion to articulate the reasons for rights, value democracy aims to answer the critics who contend that liberalism cannot defend its most basic values or counter the threat to equality that might come from hate groups in civil society.

The Secret Ballot

2017 ◽  
Author(s):  
Randall P. Bezanson
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Gay Rights ◽  
Freedom Of Speech ◽  
Washington State ◽  
Public Disclosure ◽  
Secret Ballot ◽  
The Government

This chapter examines the expansion of free speech to the largely mute act of voting in elections and to the protection of a person's affiliations and associations with others from public disclosure at the hands of the government. It does so through the recent Doe v. Reed case and a gay rights referendum in Washington State. It addresses the following questions: How should the freedom of speech be interpreted to protect such undeniably important acts as voting and joining with others—say, in a church or a charitable cause? Is it possible to read “freedom of speech” as protecting them without at the same time losing all pretense of restraint on the Supreme Court's power to interpret the Constitution? In addressing these larger questions, the chapter shows the parts of the First Amendment that were first pulled apart—speaker, speech, purpose—stitched back together in the form of constitutional doctrine. Is the resulting web of free speech doctrine and theory coherent or symmetrical, or is it just a tangled mess?

Recipes, Plans, Instructions, and the Free Speech Implications of Words That Are Tools

2019 ◽  
pp. 74-87
Author(s):  
Frederick Schauer
Keyword(s):  
Social Media ◽  
Mass Distribution ◽  
Free Speech ◽  
Speech Acts ◽  
Final Analysis ◽  
Freedom Of Speech ◽  
The Internet ◽  
Social Scientific ◽  
The Relationship ◽  
Philosophical Questions

This chapter investigates whether speech acts of urging, advising, recommending, instructing, and informing ought all to be treated in the same way for purposes of implementing a principle of freedom of speech, and asks: If not, how do we justify treating them differently? This problem is arguably more pressing than it has been in the past, as the internet and various forms of social media have seemingly caused the mass distribution of instructions for committing antisocial acts have proliferated. After discussion of examples of publications that allow the reader to acquire knowledge on how to engage in dangerous activities, the chapter concludes that the normative and philosophical questions about the relationship between freedom of speech and the provision of instructions, plans, recipes, and detailed facts are in the final analysis less philosophical than they are empirical and social scientific.

THE ACADEMIC BETRAYAL OF FREE SPEECH

2004 ◽  
Vol 21 (2) ◽  
pp. 48-80
Author(s):  
Daniel Jacobson
Keyword(s):  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
Law Schools ◽  
Legal Scholar ◽  
Rich Variety ◽  
Classical Liberal ◽  
Stanley Fish ◽  
Initial Characterization

“ 'Free speech' is just the name we give to verbal behavior that serves the substantive agendas we wish to advance”—or so literary theorist and professor of law Stanley Fish has claimed. This cynical dictum is one of several skeptical challenges to freedom of speech that have been extremely influential in the American academy. I will follow the skeptics' lead by distinguishing between two broad styles of critique: the progressive and the postmodern. Fish's dictum, however, like many of the bluntest charges, belongs to neither class exclusively. As an initial characterization of the distinction between these critiques, progressive skepticism claims that freedom of speech is a bad thing, while postmodernist skepticism claims it to be conceptually impossible. Both forms of skepticism hold the classical liberal endorsement of free speech and condemnation of censorship to be both naive and reactionary. Skepticism about free speech flourishes at universities in the United States and is especially well represented among professors at the country's most prestigious law schools. As legal scholar Robert Post approvingly observes: “Liberated from traditional inhibitions against official suppression of speech, the left has mobilized to pursue a rich variety of political agendas.”

Philosophical Ruminations

2018 ◽  
Author(s):  
John Attanasio
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Campaign Finance ◽  
Freedom Of Speech ◽  
Ronald Dworkin ◽  
Political Campaigning ◽  
Town Meeting ◽  
Inclusive Approach ◽  
American Society ◽  
Constitutional Jurisprudence

Ideas matter. Constitutional jurisprudence decisions reflect overarching intellectual trends in society. The Buckley Constitution reflects the influence of modern individualistic libertarianism in contemporary American society. Some prominent authors have glimpsed more inclusive approaches to free speech. For example, renowned First Amendment theorist Alexander Meiklejohn sought to illustrate an inclusive approach to freedom of speech in his timeless metaphor of a town meeting. This chapter begins by outlining several wrong turns that the campaign finance cases have taken which render an inclusive approach impossible. One involves equating spending money with speaking. Spending money to speak is at most a combination of speech and action. Moreover, monetary limitations on political campaigning are similar to content neutral time, place, and manner restrictions. Some authors concerned with the distribution of speech rights have overtly offered a more egalitarian free speech approach. They include Jürgen Habermas, Bruce Ackerman, and Ronald Dworkin.

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