Stanley Fish and the Unfairness Doctrine

We owe Stanley Fish a debt of gratitude. Clearly and concisely, he has stated a principle that his fellow leftists do not dare expose to the light of day.

If sunlight is the best disinfectant, as Justice Brandeis wrote, one can only hope that Fish’s defense of the left’s double standard will lead more Americans to reject it.

In his most recent blog post on the New York Times site Fish tries to be a moral thinker. He asserts that fairness is and should be a weaker value than family loyalty or tribal loyalty or ideological commitment.

For reasons that escape me, he lumps the three together.

Fish asserts that it is right to believe in a double moral standard: one set of rules for us and one for them.

Unwilling to limit himself to the marketplace of ideas Fish extends his concept to include what you are allowed to do to another person.

Fish’s reflections were triggered by the kerfuffle over Rush Limbaugh’s ill-advised use of the word “slut” to refer to one Sandra Fluke. He was puzzled that some of his liberal friends wanted to apply the same standard to leftist commentators who had slandered Republican women.

While some liberals, foremost among them Kirsten Powers, have declared that people who live in glass houses should not be throwing stones, thus, that leftists should be equally harsh in judging serial slanderers like Bill Maher and Ed Schultz, others, like David Frum have attempted to draw a distinction between what Limbaugh said and what Bill Maher said.

According to the Frum standard you can denounce Limbaugh while going easy on Bill Maher.

In this debate Fish takes the Frumious side. 

A good leftist, Fish declares, can hold his opponents to different standards of behavior. The rule applies to political speech and also to other forms of behavior.

This implies that you believe you have a monopoly on correct opinion and therefore that your opponents count as diabolical beings that need to be defeated at any price.

You may know that Fish began his career as an eminent Milton scholar (that’s John, not Berle) so we are not surprised to see him evoking the battle between the good and evil angels in Paradise Lost.

Fair enough. Evil does exist. And we are not required to respect its practitioners. We do not normally show respect or courtesy toward Nazis, Communists, or Islamic terrorists.

If you see the world in terms of a battle between good and evil then principles of fairness, balanced judgment, mutual respect have no real place.

And yet, it takes a gross misjudgment to see the differences of opinion between Republicans and Democrats, for example, as a struggle to the death between angels and devils.

Regardless of what you think about angels and devils, the rules for human commerce are largely different. If you see things otherwise you are imposing a cosmic narrative onto political life.

If you do, nothing will ever get done.

If the world is a struggle between angels and devils there is no room for real competition, the marketplace of ideas, or deliberative discussion and debate.

If you are all right and your opponent is all wrong you have established something like a monopoly over the truth. You own it; you own it all; no one else has any claim to even the least aspect of it.

If you posit a fundamental unfairness at the heart of the American political system or American public debate then you are granting yourself the right to treat everyone you disagree with unfairly. You will have made yourself the enemy of democratic deliberation.

For reasons that defy reason Fish attributes the principle of fairness to “enlightened liberalism.” Then, he declares that the principle exists in the Golden Rule: “do unto others as you would have others do unto you.”

For my part I refuse to believe that Stanley Fish does not know that the Golden Rule dates to well before the European Enlightenment. It first appeared the Bible. It exists, in one form or another, in all systems of moral and religious thought.

Being one of the most fundamental moral bases for human cooperation in community it should not be discarded with impunity. Yet, that is what Fish does.

I will mention in passing that the Book that tells the story of angels warring against devils also teaches us the Golden Rule. This means that the Book instructs us not to fashion relationships between human beings in human community according to the rules that applied in a war of risen angels against fallen angels.

I also refuse to believe that Fish does not understand that the Golden Rule is not about “procedural reciprocity,” whatever that means.

The Golden Rule says that you should extend a hand of friendship to another person because you would wish that person to do the same to you. It does not say that the other person will always reciprocate. It says that you should approach strangers with an open hand, not a closed fist.

In economic terms Fish is arguing for monopoly control over the marketplace of ideas. Since he refuses to call it liberal I will not either. It is a radical idea, one that bespeaks a will to mind control by turning public debate into drama.

The defining principle of Fish's marketplace is: heads I win/ tails you lose. It is not about competitive striving that might lead to uncertain outcomes, but about a theatrical performance leading to a foreordained, predestined outcome.

According to Fish’s double standard, if their side commits a foul, they need to be severely penalized. If your side commits a foul, it is not even a foul. If there are two sets of rules that only means that the game is not a real game.

If you believe that a victory by your opponents would lead to a wave of evil, you have every right to ensure that the elections not be fairly conducted. If you are on the side of everything that is good and holy you feel justified to cheat, to rig elections so that your side will win.

Here, we are talking about a leftist attempt to undermine the basis of civil society. If you believe that those who disagree with you should not be governed by the same rules as those who think like you, you are promoting social division on ideological lines. You are setting one group against the other, to the point of promoting the factionalism that the Founding Fathers dreaded.

A few days ago I noted that the leftist double standard, when applied to slandering and molesting women, is a recruiting tool.

You can try to recruit men to the feminist cause by saying that if you are one of us you can do what you please to women. You can treat women as Bill Clinton did, and you will be allowed to get away with it. If you not one of us and you act like Bill Clinton we will destroy you.

Again, we are not talking about the art of persuasion, the will to compete in open debate and discussion. We are talking about intellectual thuggery, pure and simple.

If you act like Bill Clinton and if your extramarital antics visit untold humiliation of your long-suffering spouse, she and her feminist sisters will stand tall to fight those who would malign you.

Hillary Clinton has followed the Fish unfairness doctrine perfectly. She has had to twist herself into a moral pretzel, but clearly she has not been punished for it.

For allowing herself to be serially humiliated by her husband Hillary Clinton stands out as a role model of everything that a woman who respects herself should not want to be. Yet, the denizens of the feminist left flock to her as though she were their ultimate role model.

If Fish had mentioned Hillary Clinton, he might have said that she placed family loyalty or even ideological conviction ahead of fairness. Unfortunately, she placed it ahead of dignity and self-respect too.

When Fish tries to rationalize his unfairness doctrine he alternatively evokes family loyalty and tribal loyalty and strong conviction. The value of these forms of loyalty would, in his mind, trump any requirement to be fair and balanced.

In doing so Fish creates a moral muddle and steps right into it.

Let’s try to clarify some of these points.

First, family loyalty is not a moral absolute. Children have been disinherited by their parents for behavior beyond the pale. The custom of dis-inheritance is not new to the world.

If a member of your family disgraces himself he will sully the family name. If his failures are so egregious that expelling him from the family is the only way to maintain your good family name, you will do so.

In most sane precincts a difference of political opinion or an ill-chosen slur does not qualify.

Second, tribes are not families. I understand that many people today think of tribes as larger families. They are not. Tribes are a grouping of families. They involve social interactions between families.

As with family loyalty, if someone disgraces his tribe by his behavior, he will be expelled.

Tribal loyalty is no more an absolute than is family loyalty.

When a member of your tribe commits an error or is accused of having done wrong, the tribe will naturally tend to defend him. In part this involves tribal loyalty; in part it involves refusing to allow the tribe’s reputation to be sullied; in part it says that we know him better than you do; in part it recognizes that ostracizing a member of the tribe requires a high level of proof.

Third, Fish seems to believe that tribal loyalty is the same as ideological loyalty.

In a sense, he is correct. Groups that are formed on the basis of ideology tend to function like tribes, but they are more properly considered to be cults.

In another sense Fish is wrong. A cult follower might refuse to interact with anyone who does not think as he does. That can only mean that he is a zealot or a fanatic, someone whose values are inimical to civil, democratic society.

In Fish’s words:

Rather than relaxing or soft-pedaling your convictions about what is right and wrong, stay with them, and treat people you see as morally different differently. Condemn Limbaugh and say that Schultz and Maher may have gone a bit too far but that they’re basically O.K. If you do that you will not be displaying a double standard; you will be affirming a single standard, and moreover it will be a moral one because you will be going with what you think is good rather than what you think is fair. “Fair” is a weak virtue; it is not even a virtue at all because it insists on a withdrawal from moral judgment.

Imagining that you have a monopoly on what is right is a sign of hubris. It can make you morally self-righteous, but it is, to my mind, a perversion of morality.

Having a strong conviction that you are right is hardly sufficient to discount and ignore all opposing points of view. It elevates zealotry, fanaticism and mania to the place of high moral principles.

According to the unfairness doctrine if you believe strongly enough that you are right and you may abuse those who disagree with you with impunity, but you will also be obliged to adore those who agree with you as though they were exemplars of moral perfection.

In Fish’s moral universe extremes become the rule. If he wants to limit the case to people who are genuinely evil, he would have an interesting point. We would agree with him that you are not obliged to keep your word if you gave it to the devil.

But we would also wonder why you would have given it to the devil. And we would ask how it all worked out for Faust.

Without wondering why you would have such poor judgment, the truth of everyday human life is that you very rarely have occasion to encounter true devils and that it is a bad idea to turn your political opponents, people with whom you have a political disagreement, into devils just because you feel compelled to live out a cosmic drama in your everyday life.