Stanley Fish claims that “there is no such thing as free speech, and it’s a good thing, too” (104).  I show that his assertion that absolute free speech does not exist in principle is not a relevant justification for banning hate speech in institutions. Fish recommends that because of the ‘emptiness’ of free speech as a principle – devoid of a political agenda – institutions have the license to impose speech codes that are overtly ideological in the name of equality. I accept that regulating free speech in a neutral manner is impossible. But I reject Fish’s recommendation, and show that the correct conclusion to draw from the biased nature of regulation is that keeping speech as free and unrestricted as possible is better for equality than trying to ban hate speech. There must be more to the fairness and legitimacy of rules than the irresponsible and unequal consequences of leaving it up to whichever ideology has more power now.    

            Fish argues that political values decide what speech is and is not acceptable within an institution or polity. The question of whether saying X is protected by the concept of free speech or not, is not answered by weighing whether it constitutes ‘free speech’ in a political vacuum, because obviously it is free in that sense that one is physically capable of saying X. This is persuasive. If I describe queer people as unnatural in a campaign, nobody would invoke speech codes because calling a group unnatural is bad apropos of nothing. To a person who fights for queer liberation, my speech reflects an oppressive ideology, and causes harm by its utterance. To others, it is perfectly unobjectionable.  Fish shows that adjudicating free speech requires that the judge “classify” my speech as acceptable or not according to the values of the institution in question like the right against discrimination, lending institutional support to queer identities, and protecting their safety (Fish 106). There are conceptions of morality and goodness informing not just where the line is drawn, but also what the line is. In another institution, asking somebody what their pronouns are could be seen as a hostile act, relying on a corrosive ideology that there are more than two genders. By their ideological assessment of whether gender equality is threatened by or reliant upon gender being a spectrum, that speech could be incendiary or not. Thus, one legal understanding of hate speech as made up of “fighting words” that are capable of inciting violence in the average person, is hollow. Hate speech regulation is based on deciding whose incendiary words follow the ideology of the institution, and whose do not.

When Fish says “every idea is an incitement to somebody,” you can conclude that hate speech is difficult to regulate because there is much that can be included in it; coded speech, for instance, covertly communicates hate without using slurs or language explicitly prohibited by speech codes (Fish 106). Or, you can, as he does, admit that hate speech is difficult to theorise because, like free speech, it is a concept constructed entirely by your politics. But both of these rationales behind why it is hard to pinpoint ‘how to draw the line’ only speak to the limits of regulation itself. If there is room for manipulation, no neutrality in sight, and ambiguity in drafting speech codes, why not do away with them altogether?

For Fish, there are two main reasons: one regarding the speech-act distinction which I briefly touch upon; and the heart of my critique, his account of why institutions must weaponize speech codes in order to further their ends. 

I. Speech-Action Distinction

 Fish submits that the consequences of speech are constantly collapsing into speech itself. If there is direct injury from the utterance, or if the utterance spurs a riot afterward, then speech is an act. But there is a difference in the injury inflicted by a word and a gun. Speech matters, although not to the point of absurdity – the degree of harm speech is capable of producing is usually less than actions. Articulating violent ideas contributes to the production of violence, but the two remain – or we must strive to keep them – distinct. Further, we can uphold the speech-action distinction by highlighting the special role speech plays in promoting equality. Then, even if speech is capable of producing the same harms that an action is, it does not follow that the regulation of the latter necessitates the regulation of the former.

II. Institutions and Ideology

The positive role of speech is vital in principally understanding why we must reject Fish’s characterization of institutions and the consequences of speech codes in the pursuit of equality. Fish justifies speech codes by arguing there is institutional legitimacy in censoring speech that is ideologically unacceptable, because “no institution is “just there” independent of any purpose” (Fish 108). It is paradoxical, by his account, to talk of ‘protecting free speech in the academic community’ because the term ‘community’ implies a level of unfreedom, a membership to an ideological collective that believes in some things and rejects others. Fish believes that if you are a person with a politics, “sooner or later you will come to a point when you decide that some forms of speech do not further but endanger that purpose” (107).

            But I submit that institutions are pivotal space in the interrogation and reproduction of ideology, not mere vessels of it. If speech codes ban hate speech, their definition of hate speech imposes their ideology without discussion, criticality, or room for change. It assumes it knows the right answer, and does not allow students to use logic or science to arrive at it, have provisional ideas, or develop their own analytical capabilities and eventually politics. Speech – even only speech, unsubstantiated by structural reforms – is positively responsible for important work; if ideologies of discrimination are shut down but not challenged, their proponents will continue holding those harmful beliefs. Likely, they will try to take control of censorship and replace your values with theirs. If equality is the value you believe in, it cannot be secured by power’s imposition of it. This method is principally unfounded, and irresponsible in its enlistment of categories of meaning and the politics of identity. Censorship, through speech codes, usually targets:

1. Slurs
2. Intentional dog-whistles and coded language
3. Unintentional dog-whistles and coded language

Consider: A calls B the n-word while presenting a project to a class. At the minimum, speech codes prohibit the use of slurs, and the penalty is suspension. Here are possibilities that complicate penalizing A:

1. A and B are both black students reclaiming the word and using it inoffensively
2. A is black and B is white, the term is intended as affectionate
3. A and B are both black students, but A is light-skinned and B is dark-skinned. B says he does not have the ‘right’ to say the word. A says he is as black as B, and that A doesn’t get to decide when he is black ‘enough.’
4. B and A are both black, but A has reclaimed the word and does not find it offensive, while B has not yet reclaimed the word and takes offense.
5. B is a rich Nigerian prince whose family owned slaves. A is an African-American who meant it affectionately but Shet takes it as an insult because he looks down upon African-American black people for class and ‘dignity’ reasons.

There is much indeterminacy in identifying and attempting to police the use of slurs, whose utterance is considered by those in favour of regulation the most ‘obvious’ kind of speech to control. It follows that graver contextual difficulties would complicate regulating hate speech (b) and (c). It is not only that deciding what to ban is hard, but it is also that in adjudicating scenarios like the ones above, identities get essentialized, intersectionality complicates objectivity, and no speech code could deal with these common situations without behaving inconsistently, and somewhat arbitrarily. Words change over time, and language is fashioned by context. Intentionality is difficult to determine, especially not before speech is made. Just like speech can be fluid, the people speaking also cannot be mapped out in clean hierarchies of identity and make each spoken word corresponding to an ideology or identity. Ideas, like identities, have to be constructed and challenged in the pursuit of equality.

Fish does not seem to mind that power is being abused with its prejudice and politics. Instead of interrogating ideology and power, he wants us to seize it. It is not helpful nor principally justified to decide that short-term regulation is better than mobilizing principle and debate to forge rather than impose politics. Particularly not if you recognize that speech codes are not neutral but ideological, and could evolve with time. Institutional speech codes pre-empt meaning, intention, and identity. We must take their role in fostering ideas seriously, and create open spaces where politics can be critically challenged.

Bibliography

Fish, Stanley Eugene. There’s No Such Thing as Free Speech: And It’s a Good Thing, Too. Oxford University Press, 1995.