Scholar Stanley Fish on Bolton, Trump and why there's too much free speech

Donald Trump’s sneering attitude toward freedom of speech has been a feature, not a bug, since long before he descended the golden escalator. During his presidency, he has painted journalists as the “enemy of the people” and, according to John Bolton’s new tell-all “The Room Where It Happened,” called for them to be executed. He has also been litigious (before and after running for president), attempting to block the publication of a number of unflattering books, likely including a forthcoming book by his niece, Mary Trump. And, of course, there’s “The Room Where It Happened,” which was cleared for publication by a judge on June 19, though the former national security advisor might still be liable for having published without a White House sign-off.

All this has made a lot of work for 1st Amendment scholars, including Stanley Fish. A literary theorist and legal scholar associated (sometimes unwillingly) with postmodernism, Fish is most recently the author of 2019’s “The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump.” (His publisher, Simon & Schuster, is also Bolton’s.) Fish spoke with The Times by phone from his home in Florida, in a conversation edited for clarity and length, on the case of Trump v. Bolton, the Twitter bully pulpit, the era of fake news and deep fakes, and the possibility that speech may be too free.

Did the president have a real case against John Bolton?

On the historical record, I would say that the case was very weak. There is a longstanding hostility, older than the United States, to prior restraint, by which we mean restraining publication rather than attacking something after it has been published. There is always a suspicion that the act of prior restraint has been committed not in order to provide safety to the commonwealth, but to avoid embarrassment.

What do you think of the judge’s decision so far?

Leaving open the possibility that the administration might have some recourse in putting a lien, as it were, on the potential profits of Bolton's book — think it was a nice judicial split down the middle. He didn't want to have his decision criticized either by political commentators or levels above him in the Judiciary. So he's being evenhanded. I think it was a perfectly OK.

Could Bolton be convicted under the Espionage Act?

No, there has to be absolute evidence that the country was somehow in imminent danger from this publication. And that's that's too high a bar to hurdle. I also don't believe the Trump administration is going to follow through on this, although I expect them to continue making lots of noise about it.

Why did the president even bother?

I think he wants to signal to his core voters that he will not allow the forces of the "Deep State" to harass him or prevent him from carrying out the policies he believes in. And he is confident, I'm sure, that this is a posture that his fervent supporters want him to assume. They wish to see him as someone who — and this is of course, a semi-technical term — will not take any [crap].

Recently, the president said he will "consider every conversation with me as president highly classified." Is that even legal?

That fits into another argument, under the rubric of the so-called unitary executive: The idea that some people have that the president's powers are extraordinarily great. Richard Nixon gave voice to a version of this when he famously said that if the president does it, it can’t be wrong. That turned out, in his case, not to be true. But that seems to be a point of view that is attractive to Trump. You recall that he approved the premier of China making himself, in effect, the lifetime leader of that country. So this is all of a piece. Now as political theater, this may end up being effective, because John Bolton is not the most attractive person in the public square, and never has been.

Bolton was forbidden to speak about the book during the review process, but Trump had been tweeting about it constantly. Does that present some sort of legal conflict?

Not that I can see. Does it suggest one to you?

You're the expert! I just found it interesting that a president insisting that the entire situation is classified is going out of his way to speak about how classified it is on Twitter.

This is part of the general and in some ways extremely sophisticated strategy behind the president's use of Twitter. At times, he and his supporters say that it's just the moment-to-moment exclamations of someone reacting and that we shouldn't take them seriously. And there are other times he and his supporters insist that certain of the tweets are pronouncements of the head of state. Now, if you have these two positions firmly established, you can bounce back and forth between the two of them.

Does the power of the speaker matter when it comes to free speech?

In legal terms, probably not. The 1st Amendment does not make distinctions on the basis of the status of the person speaking. But politically, of course, it makes a huge amount of difference. Many of those who have been the targets of Trump's tweets and have spoken of how distressing it is to be excoriated by the president of the United States in public. Whereas if I excoriated that same person, he or she wouldn't care less, because I'm just a guy sitting in my study in Florida, as opposed to a guy who's sitting in his luxury resort about 25 miles from where I am at this moment.

Twitter has been slapping labels on Trump's tweets, and Trump and others have been arguing that this restrains free speech. Do they have an argument, legally or morally?

The deeper issue is whether or not Twitter or Facebook are merely devices for displaying messages or whether they are more like newspapers or books. This is a battle that's been going on for a long time, around Section 230 of the Communications Decency Act, where it is said that servers do not have editorial responsibility — they're merely relays. That's the position Mark Zuckerberg has long taken and the position that Twitter used to take. Jack Dorsey seems now to have turned the page. There's now a public will, it seems to me, to somehow curb and control this hugely powerful engine of communication. And I would suspect that Congress will be increasingly sensitive to the public's unease.

Which do you think is right, Twitter or Facebook?

I just published a book that expands on my longstanding position against 1st Amendment absolutism. First Amendment rights are extremely important, but they are not, I believe, to be placed in the position of a deity. Chief Justice Roberts often does this in his 1st Amendment decisions: If it's free speech being infringed in any way, that's the end of the case. For me, the wise course was announced long ago by the great American jurist Learned Hand, who said that when it comes to matters of free speech, what you have to do is calculate the possible harms of allowing the speech in question to flourish and then calculate the possible harms of censoring or monitoring it. Then add up the two columns and see where the preponderance of harm lies.

When Twitter decides to be a gatekeeper, conservatives argue it’s biased — making a fact-based move political. What does one do with that?

Well, if I were conservative, which I sometimes am in some areas, I might ask, "Are they tagging the statements made by..." and then you list a whole bunch of people. They have to be doing this in a way that doesn't suggest that it's directed at the president or his supporters. But the president, from the beginning, has said that the press is out to get him. He's right. The press is out to get him! Every president has had his difficulties with the press, but the designation of the press as the enemy of the people is something that we haven't had before. If you declare someone to be your enemy, then it's not surprising that they agree to act as your enemy.

You've written a lot about fake news. Do stories about deepfakes and other manipulated media trouble you?

We should always fear that, we should just not believe it's new. Manipulation has always been happening. What's different now is that the institutions in which we used to repose our trust — mainstream newspapers, TV networks, scientific experts, universities, the Library of Congress, etc. — have in recent years been subjected to a campaign of distrust, and of course the internet abets this campaign. The result has been the possibility of many, many narratives being presented and no trusted, authoritative institution acting as a check. Fake news has been with us forever, but I'm not worried about fake news. I am worried about the fact that, for example, there are people who believe that the scientists who are talking to us about social distancing and the importance of wearing masks are somehow part of a conspiracy against the president. That's disturbing.

Is there too much speech right now?

The mantra that has for a long time ruled 1st Amendment discussions has been "the more speech the better." The idea is that the more speech is free and unfettered, the less it is curated or monitored or given to us by gatekeepers, the better it is. The general word for this is transparency. And I think that that entire way of thinking is a disaster. Because if what you have is the proliferation of speech without any mechanism for determining which forms of speech are worth attending to, all you have is the proliferation of perspectives and the disinclination of everyone to make any distinction between them. And that's where the internet, to some extent, has brought us.

There's a 1st Amendment theorist at Columbia, Timothy Wu, who wrote a really good essay last year called "Is the First Amendment Obsolete," and his large point, which I agree with, is that the 1st Amendment was formulated when the opportunities for speech were scarce, and the enemy was the government, which was attempting to arrogate to itself all the opportunities for speech, as perhaps Trump is trying to do now in his conflict with John Bolton. But Wu says that now, the danger that we face is produced by the endless proliferation of speech, which acts as a kind of censor—not in the heavy-handed way of government forces, but because it reduces everything to a matter of indifference and sameness. Truth has receded as an effect of the proliferation of speech, so much so that perhaps the 1st Amendment is out of date.