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I. Skepticism about Free Speech
" 'Free speech' is just the name we give to verbal behavior that serves the substantive agendas we wish to advance"--or so literary theorist and professor of law Stanley Fish has claimed. This cynical dictum is one of several skeptical challenges to freedom of speech that have been extremely influential in the American academy. I will follow the skeptics' lead by distinguishing between two broad styles of critique: the progressive and the postmodern. Fish's dictum, however, like many of the bluntest charges, belongs to neither class exclusively. As an initial characterization of the distinction between these critiques, progressive skepticism claims that freedom of speech is a bad thing, while postmodernist skepticism claims it to be conceptually impossible. Both forms of skepticism hold the classical liberal endorsement of free speech and condemnation of censorship to be both naive and reactionary. Skepticism about free speech flourishes at universities in the United States and is especially well represented among professors at the country's most prestigious law schools. As legal scholar Robert Post approvingly observes: "Liberated from traditional inhibitions against official suppression of speech, the left has mobilized to pursue a rich variety of political agendas."
It is odd, but not inexplicable, that Post would refer to a "rich variety" of political agendas while simultaneously describing them all as leftist. The explanation of this remark, I will ultimately suggest, can be found in the ideological conformity of the American academy. However that may be, Post correctly observes that progressives (or leftists) have sought to advance several of their political aims by suppressing objectionable speech. According to this progressive critique, freedom of speech serves to maintain the status quo by bolstering a fundamentally oppressive and unjust society. Indeed, not merely objectionable opinions, but also those who seek to protect them from suppression, have come under attack by leftist academics who--as Post delicately puts it--have been "liberated from traditional inhibitions" against censorship. The architects of campus speech codes, and advocates of legislation against pornography and (so-called) hate speech, consider freedom of speech to be a tool of oppression and its advocates unwitting oppressors.
Critical race theorists constitute one particularly strident group of progressive skeptics. In the introduction to their influential book, Words That Wound: Critical Race...