Now that the National Coalition against Censorship (NCAC) is urging the AWP to revise its position on Vanessa Place, there have been numerous exhortations validating First Amendment policy and procedure. While I am by no means a legal expert, communication and rhetorical studies provide legitimate views into speech and action, and speech-as-action, so as to help us make judgments on issues of free speech and censorship. In particular, in regards to Place and her removal from the AWP subcommittee, we are dealing with a debate not merely of “freedom of speech,” but of formalist and non-formalist theories regarding First Amendment practices and interpretations. To get a better sense of the issues involved, Thomas Streeter does a lot to help us understand the legal and linguistic realities at stake when freedom of speech issues are raised. Streeter’s argument should in part be familiar to poets who recognize the indeterminacy of language, and for whom the contexts of language production inform decisions of formalist appropriation.

One of Streeter’s most important arguments is “that language use is an important kind of social action, that words do not merely reflect reality or express ideas, they primarily are a way of doing things, a way of acting in the social world.” There are class-, gender-, and race-based perspectives to consider when we argue for and against freedom of speech, particularly when forms of expression are presented as speech-as-action. A critique of free speech, Streeter argues, is based in a fundamental distrust of formalist interpretations of the rule of law. Such a critical stance is particularly at stake for those who petitioned AWP to have Place removed from its subcommittee: freedom of speech, as it is conditioned and managed by institutional authority, is often defined by formalist determinations of how First Amendment debates are critically addressed. In opposition to a formalist legal interpretation, contextual approaches to the rule of law require different interpretive analyses.

Streeter, for instance, shows how pornography has been read as a “form of action, not of speech,” in certain legal cases. He goes on to summarize positions of scholars who say “subjective experiences of minorities in the U.S. ought to be a primary consideration in the creation and interpretation of hate speech laws.” The suggestion these critics make “is that the evils of rape-culture and contemporary racism force us, or should force us, to fundamentally reconsider how American law thinks about freedom, speech, and their regulation.” There is not always a noticeable difference between “slighting someone with a racial epithet and hitting them in the head.” Streeter argues that these differences of language use and physical conduct “are neither clear nor generalizable enough to coherently underwrite a system of decision-making that claims to be able to transcend context and achieve the neutrality that is the goal of law in the first place.”

Additionally, an article by Garrett Epps last year in The Atlantic points out how modern interpretations of First Amendment policy are based on racist responses to Civil Rights. The claims of white supremacists for speech platforms were first tested legally in this era. Before the advent of broadcast media, freedom of speech was more frequently tried in relation to property rights. “It’s a mistake to think that the U.S. system goes back to the foundation of the republic,” Epps argues. “At the end of World War II, in fact, our law was about the same as Europe’s is today.”

My point in bringing this up is that the context-based decision to petition the AWP to remove Vanessa Place from its subcommittee has basis in First Amendment debate and theorization formulated on this blurry line between speech and action. The decision of the AWP to remove Place is not as apparent a violation of free speech as some commentators believe it to be. Upholding free speech at any cost as a category in liberal democracy often denies the fluid realities and situations wherein individuals and institutions determine the values based on explicit exchanges of words and conduct.

I’m not really interested in siding for or against freedom of speech in the current contentious atmosphere (as though such a complex and controversial agenda for American democracy could be adequately debated in this current context). My point is to ask that we consider the implications of our positions on First Amendment issues, and to realize that our views resonate within a legal and political grey area. Similarly, I’m not interested now in criticizing Conceptual Poetry. Like other strategies of writing, it can be successful or unsuccessful. (I actually quite liked Kenneth Goldsmith’s Seven American Deaths and Disasters (2012), and I presented a paper on it at a conference two years ago.) The argument though against Place in this context has to do not with her freedom to reproduce Margaret Mitchell’s text (I’m sure that author’s estate loves the publicity), nor with her fabrication-by-appropriation of an empty gesture for us to view ourselves in, which can be read as a speech-as-action exhibition of her own racial attitudes. This is the specific context that urged critics to respond to Place’s text as it resonates in the violent atmosphere of racial brutality and in a complex array of anger and heated defensiveness that stems from what Robin DiAngelo calls “white fragility.”

To appeal to First Amendment formalist legal logic in this context is to forgo an opportunity for discussion and change—to actually listen to the appeals directed not so much at the formal aesthetics of poetry but at the institutional management and division of poetry into carefully controlled hierarchies of power in the form of publishing and social positioning. The control of such hierarchies does reasonably interface with freedom of speech, too, blocking and hindering some voices while promoting a chosen few. You cannot abstract language from bodily reality, racial differences, social situations—though this is exactly what proponents like NCAC and its supporters are capable of doing.

For more, see “Some Thoughts on Free Speech, Language, and the Rule of Law,” in Robert Jensen and David S. Allen (eds.), Freeing the First Amendment: Critical Perspectives on Freedom of Expression, New York University Press, 1995, pp. 31-53; and DiAngelo, R. (2011). White Fragility. International Journal of Critical Pedagogy, 3(3).