Jonathan Rauch argues in his “Defense of Prejudice: Why Incendiary Speech Must Be Protected” that despite all the pain hate speech causes to the groups and individuals it targets, it must be protected. In “There’s No Such Thing As Free Speech and It’s a Good Thing Too,” Stanley Fish argues that free speech is a sham-it’s a phrase tossed around by those seeking to use it to gain power. When their opponents use it, it’s no longer important to them.
Rauch comes to his conclusion from something close to the marketplace of ideas theory. Scientists, for example, although they seem to be impartial and authoritative, are actually all fueled by biases. It is the competition and collaboration of all these biases which leads to an unprejudiced field as a whole, and the best ideas win. Rauch seems to thin that letting society or the government pick which speech is to be tolerated and which not would be similar to the old-fashioned way of forming consensus used by kings and dictators: eliminating the opposition. He also sees the movement extending past hate speech and into prejudice in all its forms-from hate speech codes in universities to laws treating the same act more harshly if it was motivated by violence. In the end, minorities can only lose out when dissident opinions are banned.
Fish points out, however, that even Milton’s Aereopagitica, a famous defense of speech and tolerance, he ends by excluding Catholics. Fish thinks this is indicative of a larger notion; that by defining a space of tolerated or free speech, we inherently provide barriers against what is intolerable or gibberish. For example, the First Amendment does not allow freedom of action, and therefor allows speech which is also action to be regulated. Furthermore, pure free speech can only be maintained when no one has any stake in what they’re saying-Universities might say they’re for free expression, but if so, why have classes and tests? Because those things work toward the University’s actual purpose. If speech works to that purpose to some degree that is the degree to which it is tolerated. On another level, answering hate speech with more speech would only work if contrary opinion could take away the pain, fear or humiliation.
I don’t think I could pick one of the authors here as the winner of the debate because their arguments diverge. This does remind me, though, of the debate running in the Transcript last semester about hate crime legislation. On one side was the In Righting columnist and some letter writers, and on the other was the From The Left columnist and some letter writers. Though the debate went on for weeks, neither side presented a good case (or anything as intricate as the arguments here). Most notably, the side for hate crime laws failed to come up with any rational justification what-so-ever. Although I think many hate crime laws as written are too restrictive and in general I don’t like content-based restrictions, I can think of one rational that makes some sense. Take a cross burning and compare it to two 13-year-olds playing with matches on their neighbor’s property. With no hate crime laws, both receive the same charges-trespassing, destruction of property, probably not arson. But now ask: which action does society have more of an interest in preventing/punishing? This is getting to Fish’s argument. Does the accidental act of two kids harm society as much as a KKK cross-burning? Doubtful. And the reason is content-based.
I’m still not sure that overcomes the necessity of free expression Rauch argues for. And it could be said that by confining his argument (more or less) to this country, Rauch’s arguments could be slid into Fish’s schema-proving how free expressions serves the underlying purpose of our society within confines.