As shown in this clip from Newsy.com, the Supreme Court’s acceptance of the lawsuit against the Westboro Baptist Church has brought that much valued phrase back to the front of public discourse — “freedom of speech.” I would venture to say that most people are likely disgusted by Phelps’ picketing of soldier’s funerals, regardless of any stance on the issues this group claims to be portraying. Yet, surprisingly, the ACLU and “several media organizations” back Phelps’ position in the lawsuit. Though constructed in this video as “freedom of speech vs. privacy,” the real issue seems to be legal freedom of speech vs. the right use of that freedom of speech. In this clip, Judge H. Lee Sarokin makes this distinction: “Merely because something is not specifically prohibited does not mean that it is permitted and acceptable . . . conduct . . . . We must distinguish between what we have a right to do or say and the right thing to do or say.” Could there come a time when picketing a funeral is the right use of the freedom of speech? Possibly. I can see why the ACLU would want to leave this “freedom” available as an option. Throughout the Classical rhetorical tradition, “right use” of rhetoric is an idea not often examined, but can shed some light on this public issue.
Of course, in Gorgias, Socrates makes the famous distinction between dialectic and rhetoric by comparing them to cookery and medicine. Rhetoric is often used as cookery, flattering the soul, whereas dialectic is the use of rhetoric for the good of the soul, which he later seems to demonstrate in Phaedrus. Aristotle expounds on this idea in a more systematic fashion. In Book I of Rhetoric, Aristotle first employs the term “right use,” by showing that all good things can be harmful if misused:
“And if it be objected that one who used such power of speech unjustly might do great harm, that is a charge which may be made in common against all good things except virtue, and above all against those that are most useful, as strength, health, wealth, generalship. A man can confer the greatest of benefits by a right use of these, and inflict the greatest of injuries by using them wrongly.”
Further on in Chapter 13, Aristotle attempts to show one source of this “right use,” claiming that there are two kinds of law, “particular law and universal law”: “For there really is, as every one to some extent divines, a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other.” Aristotle then does as he is wont to do, classifies the different types of injustices that fall under each type of law. But it would be a mistake to understand Aristotle as defining the essence of a Universal law, rather he is discerning the “the available means” to argue whether or not an act is just or unjust in the courtroom. Discerning that there are laws at work beyond the particular letters of the law is an important inventional element in legal persuasion. Universal law exists within the gaps of particular law and cannot be abstracted into static laws.
In our post-Ramus days, we are likely to interpret Aristotle’s idea of Universal law as “an abstract absolutism created in the spirit of a priori truths,” but there is also a sophist approach to the right use of rhetoric that is similar to John Poulakos’ description of Kairos, based on a “relativism of concrete rhetorical situations to which situationally derived truths are the only opportune and appropriate responses” (42). This Universal law cannot be “apprehended strictly cognitively and whose application cannot be learnt mechanically” (42). Despite Aristotle’s claims that what “makes a ‘sophist’ is not his faculty, but his moral purpose,” the principle of right use appears within Sophism as well (Book I). In his dialogue with Socrates, after expounding on the power of rhetoric to convince all people of things, Gorgias adds, “And yet, Socrates, rhetoric should be used like any other competitive art, not against everybody . . . because he has powers which are more than a match either for friend or enemy, he ought therefore not to strike, stab, or slay his friends.” The more talented the rhetor is, the more responsibility that rhetor has to discern how that talent is used.
I would not be so bold as to define the “the right use of rhetoric,” because ultimately, it is defined by context . . . and can likely be defined in many different ways within a given moment. This is perhaps why Ramus was so frustrated with Quintilian’s “good man speaking well” principle. You cannot legalize “right use.” There is no universal method that can teach the “right use” of rhetoric or how to be a “good person.” Yet, the paradox is that it is always before us when teaching rhetoric, whether it be explicitly or implicitly. One thing is for sure, though, Phelps’ use of rhetoric may not qualify as “right use,” but, at least for now, it is legal.
Poulakos, John. “Toward a Sophistic Definition of Rhetoric”. Philosophy and Rhetoric 16.1 (1983): 35-48.