The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump

by Stanley Fish

From celebrated public intellectual, New York Times bestselling author, and “America’s most famous professor” ( BookPage ) comes an urgent and sharply observed look at freedom of speech and the First Amendment offering a “ nonpartisan take on what it does and doesn’t protect and what kind of speech it should and shouldn’t regulate” ( Publishers Weekly ).

How does the First Amendment really work? Is it a principle or a value? What is hate speech and should it always be banned? Are we free to declare our religious beliefs in the public square? What role, if any, should companies like Facebook play in policing the exchange of thoughts, ideas, and opinions?

With clarity and power, Stanley Fish explores these complex questions in The First . From the rise of fake news, to the role of tech companies in monitoring content (including the President’s tweets), to Colin Kaepernick’s kneeling protest, First Amendment controversies continue to dominate the news cycle. Across America, college campus administrators are being forced to balance free speech against demands for safe spaces and trigger warnings.

With “thoughtful, dense provocations that will require close attention” ( Kirkus Reviews ), Fish ultimately argues that freedom of speech is a double-edged concept; it frees us from constraints, but it also frees us to say and do terrible things. Urgent and controversial, The First is sure to ruffle feathers, spark dialogue, and shine new light on one of America’s most cherished—and debated—constitutional rights.

Genres: Nonfiction, Politics, Law, Philosophy

240 pages, Paperback

Published December 8, 2020

About the author

Stanley Eugene Fish is an American literary theorist and legal scholar. He was born and raised in Providence, Rhode Island. He is often associated with postmodernism, at times to his irritation, as he describes himself as an anti-foundationalist.

He is the Davidson-Kahn Distinguished University Professor of Humanities and a Professor of Law at Florida International University, in Miami, as well as Dean Emeritus of the College of Liberal Arts and Sciences at the University of Illinois at Chicago, and the author of 10 books. Professor Fish has also taught at the University of California, Berkeley, Johns Hopkins University, Columbia University, and Duke University.

Reviews

[Mehrsa · Rating 3 out of 5]

If you're going to read a book about the first amendment jurisprudence, why not read it from a legal expert? There are so many to choose from, but hey Fish has the right to talk about the first.

It's fine as far as a "how to think" book, but he can't help but put in a tirade about college campus protestors. I will never understand why so many of these dudes think that a few students on a few campuses (they ALWAYS use the same two examples) are the biggest threat to free speech! I mean, have they even heard of Citizens United? The Nazi rallies?! Maybe it's because those are the kids that present the biggest threat to rich white men who get to write whatever books they want on whatever topics they choose to write about?

[Steve · Rating 4 out of 5]

This is an important book for anyone interested in First Amendment and Free Speech issues to read. Not because they will agree with all (or even most) of Fish's conclusions, not because they will come away with a better idea of the path forward, and certainly not because they will gain a clearer understanding of the complex dynamics in our current times tied up in First Amendment and Free Speech issues. But because Fish asks deep, penetrating questions about how the First Amendment works in our society, and about how it should work. Engaging with the questions and research Fish offers up can lead the reader to carefully examine closely held beliefs and assumptions and to develop a more critically crafted understanding of these issues themselves.

Fish is very good at asking the hard questions and at seriously questioning common assumptions held by typical free speech advocates. His arguments are well-crafted and fully aware of valid points from all sides of the issues. He brings together philosophical, scientific, sociological, legal, and political insights in ways that are holistic and helpful. His deconstruction of common assumptions paves the way for a deeper and more nuanced understanding.

Unfortunately that deconstruction of typical beliefs is his strength. His reconstructions of how we then should think about such issues (and make no mistake: he believes he is telling us how we all should think about these things) come across as much less fully thought-out or helpful. While he brings a laser-sharp critical eye to the questions he asks, that careful critique seems missing in his own conclusions. They often seem at odds with the very criteria he uses to so helpfully raise the questions in the first place, and they don't seem to point in directions that are ultimately helpful in better understanding the issues or in more properly applying First Amendment principles to our daily social life. While he brings a breadth of scholarly support to his questioning, from ancient Greek philosophers to the history of legal interpretations of the First Amendment to current scholarly writing on the subject and more, by the end of the book one is struck by how many of his citations ultimately come from a fairly short list of sources.

In the end, he caused this reader to think hard and carefully about held assumptions around how First Amendment and Free Speech issues work and should work. These questions will color and influence my thinking and work around these topics for some time to come. This is a great service Fish provides to the scholarship on this topic. The hard work of providing good answers to those questions, however, despite Fish's intentions, is left largely to the reader's own efforts.

[Joshua Glasgow · Rating 2 out of 5]

This is the second of Fish’s books I’ve read, after HOW TO WRITE A SENTENCE, and my opinion of his writing isn’t much changed from that first taste. He’s a good writer, no doubt, and the lovely floridness in his language is what had led me back to his work. But he’s not a persuasive writer. Despite the cavalcade of endnotes, the book is so much his unsupported opinion, which he - true to form - presents as inarguable truth. This tendency is ironic, considering the emphasis of the book on the post-truth character of the world and its malleability.

When you’re with him, he seems learned and eloquent; when you’re not, the hollowness of his act is all too clear. The most egregious example of this, to my mind, comes in the section on free speech issues on campus. He refers to student activists who speak of ‘trigger warnings’ and ‘microaggressions’ and insists they just “don’t want to learn”. Again, there’s an irony in the way he dismisses these concerns without seriously engaging them while simultaneously alleging the ones he criticizes are educationally averse.

As the book wears on, it becomes repetitive and the act grows thin. He struggles through the final chapters, though they’re arguably the most pivotal, dispensing with his post-truth thesis and discussion of Donald Trump’s relationship with the concept of “free speech” in just a few pages. It feels as though he started out with a lot to say but then lost interest and wanted to wrap it up ASAP. The feeling gets transferred to the reader.

Tackling the First Amendment and “free speech” with an irreverent voice, highlighting the incomprehensibility of jurisprudence on the issue, arguing that “free speech” isn’t necessarily a virtue - that’s a compelling starting point. And for a while Fish seems to have something worthwhile to say on the topic. But his confidence in his own brilliance overtakes him by book’s end, making the whole less than satisfying.

I think I would still consider myself intrigued enough by him as a writer to give him a third go, but I don’t mistake him for an authority on the subjects he muses about. He does have some interesting ideas. If you can take him with enough grains of salt, Fish can be palatable.

[Mark Jr. · Rating 4 out of 5]

Classic Fish. A tonic for my mind. He describes so incisively life under the sun.

[Noah · Rating 2 out of 5]

This was less a book than a collection of essays--there is no particular theme or argument uniting all of the chapters (hate speech, campus speech, religious speech, and fake news) apart from being vaguely related to "speech" in an abstract way. If Fish had been able to present a coherent lens or analytic framework through which to evaluate each of the topics of the book, I might have been able to excuse his sometimes lazy argumentation and lack of coherent viewpoint. Instead, he often contradicts himself yet apparently fails to realize it.

Fish is at his most incoherent when addressing the "campus speech" issue. "[F]reedom of inquiry requires the silencing of voices," he says. This is because basic questions that have "already been answered (at least provisionally) when the school doors open and, although they could always be raised again, it is not the university's obligation to raise them daily." In other words, there are some subjects that are--simply--settled. It would be nonsense to insist that a biology professor seriously entertain a student's comments arguing in favor of creationism, for example.

But immediately thereafter, Fish embarks upon an hysteric polemic about students asking universities to "substitute for academic-style deliberation the declaration of what they take to be the undoubted truth." By this, he refers to--for example--the controversy surrounding law professor Amy Wax, who famously authored an op-ed steeped in white supremacist dog-whistles bemoeaning the "breakdown of the country's bourgeois culture" and then argued against affirmative action because "I don't think I've seen a black student graduate in the top quarter and rarely in the top half [of their class]." Unsurprisingly, people were outraged and called for her to be removed from teaching first year classes.

Now, and without explanation, Fish says "there are some campus controversies that do directly implicate First Amendment concerns" rather than free inquiry concerns. Why do people expressing outrage over a professor making racist statements implicate the First Amendment? Fish just spent his entire first chapter arguing in favor of laws against hate speech. Fish's argument is no more coherent if he refers to freedom of inquiry instead of freedom of speech: mere pages earlier, Fish was arguing that there are some subjects that are settled and need not be re-raised constantly. Surely the equality of the races is one of those settled subjects.

But Fish never considers this. There's a reason: this book is not a deep or meaningful contemplation of the issues it claims to examine. It is a cranky old man sounding off on controversial topics of the day in a bid to avoid irrelevance. If that's your thing, then by all means buy the book--but you can probably get it cheaper by asking your drunk, racist uncle about his opinions this Thanksgiving.

[Kent Winward · Rating 4 out of 5]

Free speech (like the free market) is a myth. Fish aptly explains the contradictions, but washes out in the end by simply splashing around in the inconsistencies. His take on why universities and schools shouldn't have free speech, but rather free inquiry, was spot on. Different objectives require different restrictions on speech. The discussion on First Amendment religious freedom (exercise and establishment) raised many fascinating questions that remain to be answered and should probably be answered and battled out in the political arena.

As I'm going back over my thoughts on the book, I realize that rather than a civics lesson, I wanted an even better framing of the debate so I could be better at Winning Arguments: What Works and Doesn't Work in Politics, the Bedroom, the Courtroom, and the Classroom, but hell, I should be so fortunate as to be cranking out freedom of speech tracts at the age of 81.

[Samarth Gupta · Rating 4 out of 5]

4.5 stars

I am reviewing this book for Atria Books, which sent me an advanced copy.

Stanley Fish does a lot in 200 pages. Most importantly, I think, he walks through the First Amendment and current events surrounding it. Roseanne Barr, Ron Sullivan at Harvard, campus divestment protests, Kim Davis, Donald Trump, fake news, etc. It's all there and presented in a succinct, way. Crucially, Fish makes this book accessible for non-lawyers. He goes through important jurisprudence, philosophical roots of law, and modern examples in a way that accessible to all.

Not only does Fish cover a range of important issues, but he also does so with clever, provocative, and counterintuitive arguments. He argues "free speech is not an academic value," despite the constant noise about free speech on campus. In addition, he writes that religion shouldn't be in the First Amendment and that transparency is the mother of Fake News.

While I certainly have some disagreements with some of his arguments, with the section on speech on campus, in particular, Fish never asserts that his view is the objective right answer on speech. In fact, he goes out of his way to show why so many Free Speech arguments that do so hide their underlying assumptions and beliefs. I appreciated his views and his clear, consistent articulation of his principles and conclusions.

The main qualm I had with the book is the writing style. Although, Fish consistently provides a roadmap for his argument, summarizes his points well, and interlaces the book with stories/examples, his style of long paragraphs (often a full page) can make the arguments harder to follow while reading. His style also still leans more "academic-y," which is suited for some but may not be for others -- it's not a narrative Jeff Toobin book on the Court.

[m · Rating 4 out of 5]

Good book.

The text is = 72,000 words, which includes 209 (mostly uninteresting) footnotes that = 8,500 words.

Fish is a snappy writer, so he covers a lot of ground quickly, rarely slowing down to smell the roses or linger over ideas.

For instance, I was piqued by his reference in Chapter 1 to John Wilkins, a figure from the seventeenth century (whom I've never heard of but now intend to learn more about, thanks to Fish). Fish goes from Wilkins to Rudolp Carnap to George Owell in a single paragraph, about 150 words:

In the seventeenth century John Wilkins, one of the founders of the British Royal Society, wrote An Essay towards a Real Character and a Philosophical Language (1668). The idea was to replace the ambiguity and redundancy of ordinary language with a finite universal set of symbols that would provide “elementary building blocks from which could be constructed the universe’s every possible thing and notion.” Such a language, Wilkins argued, would be free of redundancies (more than one word signifying a single thing), equivocals (words that refer to more than one thing), and metaphors (words that tell you not what a thing is but what it is like). Much later, in the twentieth century, the logical positivist Rudolf Carnap constructed a language in which “every primitive term is a physical term”; should you wish to speak of matters other than physical ones, you must define them in relation to those basic terms. Once again, no equivocals, no redundancies, no metaphors, and, also, no metaphysics. In the mid-twentieth century George Orwell offered a popular version of this perennial project when in “Politics and the English Language” (1946) he urged speakers and writers to purge foreign vocabularies from the English language and to limit themselves to good down-to-earth Anglo-Saxon words that refer precisely to things and not to abstractions. If we can thus purify our language, he declared, we will at the same time purify our thoughts and engage in a purified politics. (If it were only that easy!)

That's cruising, and that's fun. But I wish he'd cooled his jets a bit to riff upon those three thinkers a little longer.

Chapter 1—maybe the whole book—struck me as very reminiscent of ideas enunciated by David Bromwich in his famous free speech essay, "What Are We Allowed To Say?" (London Review of Books, Sept. 22, 2016), available here:

http://www.lrb.co.uk/v38/n18/david-br...

Bromwich & Fish are both great admirers of Richard Rorty, see here:

https://slate.com/culture/2007/06/ric...

In Fish's memoriam (700 words) for Rorty, his first sentence is:

One day in early 1980, I bought a book and boarded a train in Philadelphia's Penn Station, intending to get off at Swarthmore. I missed the stop because I was so absorbed in the book that I never even noticed that we were pulling in and out of a series of small towns. The book was Richard Rorty's Philosophy and the Mirror of Nature, and by the time I finally got to my destination, I was an acolyte [my emphasis].

Fish is indeed a Rorty disciple, perhaps the loudest currently working. Fish offers bouquets to the great man's altar in Chapter 5, complimenting "Rorty’s deadpan comic delivery and his habit of wrapping a complicated argument in what appears to be a throwaway line."

Alas. That is so true.

Off topic: Why does The First not have a table of contents?

[Stephanie McNutt · Rating 3 out of 5]

If you are a new student of your First Amendment Rights, or just interested in politics and law, then this is a great quick read for you. However, if you are looking for true discussion and thought, I did not find it here. Fish is a great writer and makes many observations, but I don't feel this book slowed down enough to observe points being made and offered counters to those at all. I felt like with all the footnotes and direct information without a thesis or thought behind it, it was more of a long research paper on Free Speach than a dissection or "how to think" book. I found it informative in the sense I was told a few facts I did not know about free speech, but Fish's thoughts did not shine through as I had hoped. I will read his other books for his eloquent writing style and the well-researched facts, but I will not look to him as a purveyor of political thought.

[Ray · Rating 3 out of 5]

The subtitle of Stanly Fish's book, "The First" pretty much tells you what to expect. He writes about the First Amendment, whic most readers will remember guarantees freedom of religion, speech, and peaceful assembly. It prehibits Congress from mandating a particular religion or restricting free speech and a free press. But as the sub-title implies, nothings is as simple as it seems, and Fish examines how the First Amendment applies to current events such as Campus Speech, Hate Speech, Religious Speech, Fake News, and the Post-Truth era of Donald Trump. He gives examples throughout the book, presenting arguments and practical examples for consideration of the First Amendment.

[Lari · Rating 3 out of 5]

Some of it was really good. Some of it I really disagreed with. The universities chapter was the worst offender in that regard Particularly the irony of him talking in the previous bit of white academics in their ivory towers telling people to brave it out when it comes to harassment, then the very next chapter he complains about uni students who can't just brave out offensive ideas, but insist on trigger warnings. Not that his understanding of trigger warnings and their purpose is actually accurate.

[David West · Rating 3 out of 5]

I did the audio of this one. It was helpful in understanding the current debates surrounding the first amendment. The author suggests that the first amendment is infinitely malleable and demonstrates as much from current case law. But missing was a full discussion of original intent. I imagine the authors of the amendment did see it as infinitely malleable but had clear intent for it.

2021 Reading Challenge - a book about a current social issue

[Tanya Smolinsky · Rating 1 out of 5]

I found this to be a really well-reasoned, nuanced, interesting book until I got to chapter 3 when I suddenly found myself reading an entirely different book.

In chapter 1, Fish makes a compelling argument as to why the First Amendment is not an apolitical, independent principle; thereby, revealing how our notions about free speech rights are often misguided. Sounds interesting, right?

In chapter 2, Fish describes the paradox of the First Amendment as it relates to hate speech and explores the many arguments for and against restricting hate speech, ultimately concluding that it's impossible to formulate a useful definition of hate speech that everyone can agree upon. Again, sounds interesting.

But early in chapter 3, all of Fish's thoughtful analysis suddenly vanishes as he takes on the topic of free speech on college campuses. The point Fish says he wants to make is that freedom of speech is not an academic value; it's freedom of inquiry that is. But rather than continuing to explore this theme, he unexpectedly starts venting his frustration with students and administrators.

His critique of students is aimed at leftist protestors who are "wanting to institute a 'virtue regime,' where people who say the right kind of things get to speak and those who're supposedly on the wrong side of history don't." He repeatedly characterizes these students as not wanting to learn anything.

This position is in stark contrast to the one Fish takes in chapter 2, where he writes, "It's [an] impatience with the [Marketplace of Ideas] that helps explain the hostility displayed by today's student protestors toward the First Amendment. They argue that by affording free speech to people spreading truly harmful ideas--ideas such as Holocaust denialism and racial inferiority--that have been labeled baseless by credentialed experts, we give new life to ideas that might otherwise die."

Similarly, Fish expresses his frustration with administrators who he views as all too often abdicating their responsibilities when they invoke free-speech doctrine in order to supposedly side-step making difficult decisions that are in the best interest of their college.

Fish offers simplistic, useless strategies that according to him would make these decisions clear and uncontroversial such as merely affirming the speech rights of faculty members while refraining from rejecting or endorsing a particular viewpoint even in cases where a faculty member has said something highly offensive. Or only allowing those speakers on campus--such as Charles Murray or Donald Trump--who would contribute to furthering the educational mission of the college.

No matter what you think of Charles Murray or Donald Trump, no one can seriously claim as Fish does that either of these two individuals are an obvious choice as speaker if for no other reason than there would be an uproar from a large portion of most college campuses if either of these two were invited to speak.

I stopped reading after chapter 3 because I was no longer willing to read one man's long-winded, personal grievances about aspects of free speech and the First Amendment.

[Lev Reyzin · Rating 4 out of 5]

I started my faculty job at UIC in 2012, eight years after Stanley Fish finished his term as dean of my college, and it didn’t take me long to hear about him. I heard about Fish before I knew the name of my (then) current dean, and I never even learned the names of other former deans. Usually, when an administrator becomes so memorable, he must have done something disastrous that nobody can forgive. But as far as I understand, this was not the case with Fish; he was known for making bold and unusual decisions, often controversial but not inept.

Now, twelve years later, I was at a used book sale where I saw a book by someone named Stanley Fish. Seeing that name jogged my memory, and I checked the author’s bio to see if it was the same Stanley Fish — indeed, it was! I had no idea he wrote books (apparently, he wrote many), and I immediately bought the book to see what he had to say.

The book involves the author expounding his ideas on the First Amendment, and it did not disappoint. True to his reputation, Fish takes many controversial positions— including that freedom of speech should not be the central value on college campuses and that the First Amendment should not have included religion — and he even offers the best defense of postmodernism that I’ve seen. (I still don't buy it.)

In the end, this is a fun and thought-provoking book. It reinforced my views on some things, convinced me on some points, and utterly failed to convince me on many others. But unlike most non-fiction, this book delivers something new and unpredictable with each chapter.

The main downside is that the book feels like a rant more than a principled argument spanning the various aspects of the First Amendment. The long title even betrays its lack of coherence. The other downside, of course, is that I think he’s wrong about too much! Still, it was a fun read.

[J. Alfred · Rating 4 out of 5]

Stanley Fish is arguably the most important critic on John Milton who ever lived. A system of literary criticism, not just for Milton, is connected with his name. He's also a practicing lawyer and a college dean and the like.
When he says things, I like to pay attention to the things that he says.
And in this book, he maneuvers his big ole brain to explain why nothing in our country seems to make any sense, and why that's generally okay, so long as we try to understand the nature of the endeavor: to make a country built up of extremely disparate constituencies livable for everyone involved.
And there's a nice little bit in at the end about how Donald Trump is the orange face of the know-nothing zeitgeist and must be answered, not according to his own rules (which he changes at will), and not according to the rules of public decency (which he flouts and to which he is somehow impervious) but according to the pragmatics of policy. The last sentence is my translation of Fish's more dignified explanation.
You should read this book.

[Serge · Rating 5 out of 5]

Excellent overview of the speech conundrums in the post truth era. Best part of the book was the nuanced examination of protected classes vs protected speech and the case against the free exercise of religion clause of the First Amendment. Very pragmatic approach to abandoning the search for an incontrovertible Free Speech principle. Conservatives and liberals would do well to heed this prophetic treatment of a contentious issue. Speech and its accompanying acts multiply in our era of online reputation management to the detriment of our more valorous discretion and restraint.

[Irina Ioana · Rating 4 out of 5]

I definitely love cocky, self-assured, witty argumentation and this book delivers. Not sure exactly how enriched I am after reading this book, or what exactly I have learned ... what I do know for sure is that I had fun during the ride!

[David DeLuca · Rating 2 out of 5]

Way too erudite for its own good. Freedom of speech is an important issue, and it's poorly understood by most Americans. Mr. Fish would have been better off writing it for a broader audience instead of crowing, "Look how smart I am!" throughout.

[Walter Mack · Rating 5 out of 5]

Never Give In

I enjoyed this book because it caused me to do some serious thinking about much of the falsehood in the public space and encouraged me to fight harder and wiser in what needs to be done to refute the untruths that are in daily play.

[Jennifer Fredin · Rating 4 out of 5]

Excellent analysis of the first amendment to the constitution regarding free speech including the religion clause including recent case history also discusses fake news, post-truth and Donald Trump.

[Edward Sullivan · Rating 4 out of 5]

A thoughtful, frequently dense, vigorous and provocative dissection of the First Amendment and the concept of free speech.

[Evan Milner · Rating 2 out of 5]

This was not nearly as good as Fish's free speech writings from the 90s. Skip this and read There's No Such Thing as Free Speech... and it's a good thing too! instead.