Free speech is currently under attack from both left and right. And the critics, though they would no doubt hotly deny it, basically agree on why it’s bad. For the left, it crates space in which nasties like ‘hate’ and ‘disinformation’ are given free rein, and must therefore be vigorously curtailed. And for the right, it creates space in which nasties like ‘cultural Marxism’ and ‘woke propaganda’ are given free rein, and, er, must therefore be vigorously curtailed. Oddly, this all really just goes back to J.S. Mill. Speech should be free, we all agree, as long as it isn’t harming anyone. It’s just that ‘harm’ is a floating signifier which can mean almost anything, and therefore serves as a freestanding justification for restricting almost any speech at all.
This was all accounted for by the American literary theorist-cum-legal philosopher, Stanley Fish. According to what he told us in 1993, “There is no such thing as free speech.” What there is instead is politics, and power – with law following after. The ones in control of the institutions, in other words, get to decide what is acceptable speech and what isn’t (very often on the basis of nebulous concepts like ‘harm’), and then also get to decide what the law permits or restricts. What we think of as ‘free speech’ is just what remains to be said once unacceptable speech has been ruled out.
Hence, for example, in the 1950s, people were much more free than nowadays to express the view that there are innate differences between the sexes. But they were much less free to express positive opinions about homosexuality. Now, the balance has shifted, and people are nowadays free to say almost anything they like about sexual mores, but it is considered unacceptable – even bigoted – to suggest that there are material differences between men and women. This is not because there has been a free debate in the ‘marketplace of ideas’ and the best side won; it is because there was a battle of perspectives and different people with different ideas are now in charge of the culture. (Or, to put it less conspiratorially, because the people who dominate the institutions these days happen to have imbibed different cultural values to those which prevailed in the 1950s.) “Free speech,” as Fish therefore summarises, “is not an independent value, but a political prize.”
Fish is one of the sharpest minds of his generation and probably the most trenchant of liberalism’s critics since Carl Schmitt (somebody with whom he had some things in common – more on that later). His work is important to engage with on those grounds alone. And, to give the devil his due, he was clearly onto something here. Carry out a quick thought experiment: do you think there are any political views that a school teacher should be prohibited from expressing to children? Deep down inside, it is likely that you do. Which views count as being beyond the pale will vary – perhaps it will be out-and-out racism, perhaps it will be the opinion that drag queen story hour is a great idea, perhaps it will be views for or against transitioning children, perhaps it will be revolutionary Marxism, perhaps it will be views about controlling immigration, perhaps it will be the idea that the age of consent should be abolished – but it will vary based on your values, and values are fundamentally political.