Playing The Craftsman: Habermas, Free Speech, and The Public Sphere of Eighteenth-Century New York

Playing the Craftsman
Habermas, Free Speech, and

the Public Sphere of
Eighteenth-Century
New York
Gregory Afinogenov
What is human Life, but a
Masquerade? And what is
civil Society, but a Mock-
Alliance between Hypocrisy
and Credulity?
Cato’s Letters
The tygers of wrath are

wiser than the horses of
instruction.
William Blake
Contents

Author's Note
4
I. The Trouble With Free Speech
5
II. Habermas and the Problem of
Print
13
III. Faction and Legitimacy in
Eighteenth-Century New York
28
IV. Conclusion: From Discourse to
Conversation
48
Author's Note

This thesis aspires to imitate Ezra Pound's Cantos, in that it is structured as a fugue.
Instead of a single, coherent narrative, it presents—in various keys—several almost
distinct engagements with a common subject, linked by admittedly tenuous transitions.
My objective is not to develop the subject conceptually, to take it from point A to point
B, but rather to provide contextual opportunities for its emergence; indeed, it should in
theory be possible to agglomerate such contexts indefinitely. In this case, the subject is
introduced in the first essay, recapitulated in the two middle “episodes,” and brought to
an (arbitrary) final recapitulation and resolution in the last. There are also more minor
divagations within each section which represent the subject on a smaller scale.
Briefly stated, the subject of this thesis is the inability of public discourse neatly to
accommodate itself to external normative structures, strictures, and demands (known
here collectively as “deliberativism”). This problem, of course, is not limited to the
purview of any one field of knowledge: disciplines from literary studies to quantitative
sociology must confront its implications. I have tried to work within two of them—
political philosophy and hermeneutics on the one hand and cultural history on the other.
The opening essay traces the problem's rough outline in past and present debates about
the grounds for a defense of free speech. The second confronts the work of the
contemporary political philosopher Jürgen Habermas and attempts to demonstrate that
his project for communicative action fails on its own terms. The third suggests a revision
of the dominant “republicanism thesis” in colonial American historiography by
investigating performance and legitimacy in the newspapers of colonial New York. The
concluding essay gropes its way towards an alternative by drawing a concept of autotelic
discourse out of the work of Gadamer, Bakhtin, and Ricoeur.
The research for this project was conducted with the help of a Campion Summer
Research Fellowship from Fordham University. I would like to thank Dr. Rosemary
Wakeman and Dr. Babette Babich, my advisors, for their indispensable advice and
encouragement.
4
I
The Trouble With Free Speech

Today's media environment is replete with critiques of its own inadequacy.
Television is said to promote sound-bite politics, superficial arguments, and partisan
rhetoric rather than reasoned and substantive debate, while politicians demand
“discussion of the issues” instead of personal attacks. Each new electoral cycle produces
renewed vituperation about the depths of triviality reached by this or that campaign or
institution. A variety of culprits are identified: the capitalist profit motive, anti-intellectual
ideology, the stupidity of the average American voter. Despite the large number of
corrective proposals, however, the discourse about discourse continues its steady
drumbeat of cultural decline.
In fact, the value placed on recovering or developing rational deliberation in
American society reflects fundamental anxieties about the nature of democracy itself.
The rise of liberal representative governments around the turn of the nineteenth century
was almost always accompanied by growing protections for the freedom of speech and
of the press, as well as an increasing emphasis on the duties and responsibilities of the
latter. Thomas Jefferson even preferred newspapers without government to government
without newspapers. Since then, the linkage between the free media and the democratic
polity has been ceaselessly reiterated. An inadequate media, according to this logic,
represents and reinforces an inadequate democracy—and a lack of protection for the
rights and liberties of the citizenry.
This viewpoint has not been without its challengers, though these are generally still,
small voices amidst the general din. In Boswell's Life of Johnson, for instance, we read:
He talked in his usual style with a rough contempt of popular liberty.

‘They make a rout about UNIVERSAL liberty, without considering
that all that is to be valued, or indeed can be enjoyed by individuals, is
PRIVATE liberty. Political liberty is good only so far as it produces
private liberty. Now, Sir, there is the liberty of the press, which you
know is a constant topick. Suppose you and I and two hundred more
were restrained from printing our thoughts: what then? What
proportion would that restraint upon us bear to the private happiness
of the nation?1
Boswell, scandalized by such talk, immediately backpedals. For Johnson, this was merely
“a kind of sophistry,” he says. “When restraint is unnecessary, and so close as to gall
those who are subject to it, the people may and ought to remonstrate; and, if relief is not
granted, to resist. Of this manly and spirited principle, no man was more convinced than
1 James Boswell, Life of Johnson (London: Jones & Co, 1827), 157.
5
Part I · The Trouble With Free Speech
Johnson himself.”2 And yet, despite our lack of personal acquaintance with the man, we
might disagree with his biographer. After all, in his Life of Milton, Johnson had written, “It
seems not more reasonable to leave the right of printing unrestrained, because writers
may be afterwards censured, than it would be to sleep with doors unbolted, because by
our laws we can hang a thief.”3 It appears that Dr. Johnson, one of the eighteenth
century's foremost intellectuals, had serious reservations about the wisdom—and even
the liberating qualities—of free public speech.
Together, Johnson's reservations and Boswell's retrenchments can serve as a way of
wedging open an issue that has generally been elided in broader debates about free
speech. The most respected twentieth-century authorities on the subject, from Zechariah
Chafee, Jr. in the 1940s to Cass Sunstein in the '90s, do not seriously question the
inherent virtues of uninhibited public discussion, though they may attempt to balance it
against other considerations.4 In a characteristically plain-spoken passage, Chafee writes,
“It will be necessary for thoughtful Americans to remember the national tradition of free
speech ... The ultimate decision of all such questions [about the conduct of World War
II] is more likely to be wise if it is shaped by an informative and informed public
opinion. And that means both sides must have a fair chance to speak out.”5 The
remainder of his book is a study, not of free speech itself (as the title promises), but of its
suppression in wartime America. In the meantime, there are significant questions implied
by the “shaping” of decisions “by an informative and informed public opinion.” How
does this “shaping” occur? What forces mediate and represent public opinion? What
defines an “informed and informative” public? Looking for approaches to these
questions, the present essay aims to reconstitute the substance of Johnson's critique
within a contemporary philosophical and historiographical framework.
The modern free speech debate has its origins in the seventeenth century. Locke,
one of its earliest though least specific defenders, conceived of the liberty of conscience
in “speculations & religious worship” as an inalienable right which the subject “may
freely use without or contrary to the magistrates command, without any guilt or sin at
all.”6 The translation of this right into interpersonal and public contexts, that is, the right
to “publish or vent any opinion,” was subject to regulation, which was based on the test
of harmful actions and “disturbance of the government.”7 The latter, of course, was
broad enough to accommodate any number of violations of free speech. The important
point, however, was that the right of free speech, to the extent that it existed for Locke at
all, flowed directly from the natural right to liberty of conscience.
John Milton's “Areopagitica,” a speech against the licensing (and hence prior
restraint) of print publications, articulates quite a different fundamental argument. Milton
2 Boswell, Life of Johnson, 157.

3 Samuel Johnson, Life of Milton (London: George Bell & Sons, 1894), 17.
4 Zechariah Chafee, Free Speech in the United States; Cass R Sunstein, Democracy and the Problem of
Free Speech (New York: The Free Press, 1993).
5 Chafee, Free Speech in the United States, vii-vii.
6 John Locke, An Essay Concerning Toleration (Oxford: Clarendon Press, 2006), 275.
7 Locke, Essay, 277-278.
6
provides a number of reasons why licensing would be ineffective, but his primary point
is that the unregulated proliferation of viewpoints is itself something to be desired:
Where there is much desire to learn, there of necessity will be

much arguing, much writing, many opinions; for opinion in good
men is but knowledge in the making. .... A little generous
prudence, a little forbearance of one another, and some grain of
charity might win all these diligences to join, and unite in one
general and brotherly search after truth; could we but forgo this
prelatical tradition of crowding free consciences and Christian
liberties into canons and precepts of men.8
Milton's viewpoint is essentially utilitarian: free speech is not a negative natural right, but
rather it should be a right because it in itself promotes a beneficial search for truth.9
The republican conception of free speech takes utilitarian theory as its starting point.
Free speech is valuable because it promotes debate, discussion, and various forms of the
exchange of ideas. But republicanism also gives the utilitarian notion of “benefit” a more
specific ideological content. Discussion is valuable because it is the responsibility of free
citizens to protect the virtue of the polity, by seeking out tyranny wherever it can be
found and dragging it out to the vigilant eye of the public. Such, for example, is the
position articulated by Trenchard and Gordon in the classic fifteenth issue of Cato's
Letters:
Without Freedom of Thought, there can be no such Thing as

Wisdom; and no such Thing as publick Liberty, without Freedom
of Speech ... The Administration of Government is nothing else,
but the Attendance of the Trustees of the People upon the Interest
and Affairs of the People. And as it is the Part and Business of the
People, for whose Sake alone all publick Matters are, or ought to
be, transacted, to see whether they be well or ill transacted; so it is
the Interest, and ought to be the Ambition, of all honest
Magistrates, to have their Deeds openly examined, and publickly
scanned: Only the wicked Governors of Men dread what is said of
them.10
8 John Milton, “Areopagitica,” in Milton's Prose, Malcolm Wallace, ed. (London: Oxford
University Press, 1959), 314.
9 For a detailed discussion of competing arguments for free speech, including Milton's, see
Frederick Schauer, Free Speech: A Philosophical Inquiry (Cambridge: Cambridge University Press,
1982), 15-86. For Milton and Locke's context in early Anglo-American free speech theory, see
Leonard Levy, Emergence of a Free Press (New York: Oxford University Press, 1985), 89-118.
10 John Trenchard and Thomas Gordon, Cato's Letters; or, Essays on Liberty, Civil and Religious, and
Other Important Subjects (New York: Russell & Russell, 1969), I:96-97.
7
The upshot of republicanism, therefore, is that the freedom of speech is nothing other
than the “publick Liberty” of which Johnson spoke. In other words, speech must be
partitioned into a public and a private sphere; properly speaking, the liberty of private
speech is none of the republican's concern. Among the most radical expressions of such
a tendency is Kant's article “What is Enlightenment?,” where the philosopher asserts that
“the public use of one's reason must always be free, and it alone can bring about
enlightenment among men. The private use of reason, on the other hand, may often be
very narrowly restricted.” That is to say, a broad freedom of speech applies only when
one is addressing “a reading public.”11
The view that I shall call “deliberativism,” following Pincione and Tesón (see
below), proceeds directly from republicanism. It shies somewhat from Trenchard and
Gordon's manner of argument, which always thrusts ideological questions to the fore.
Nonetheless, it shares their assumption that the foundation of a democratic polity is the
will and ability to maintain effective venues for public discussion; with that premise
comes an equal willingness to make exaggerated claims for the transformative or
emancipatory powers of discourse. Deliberativism's overriding priority, then, is
simultaneously keeping speech free from government interference and policing the
quality and volume of discussion. While this allows the deliberativist to make more
compelling arguments for free speech, it comes at a cost to the private sphere, which no
longer falls within her purview. Whether or not a republican or deliberativist actually
argues against free private speech, she at least cannot defend it with the same powerful
tools she brings to bear upon public speech.
In the 1950s, Alexander Meiklejohn became a powerful figure in the American free
speech debate, owing mainly to his opposition to McCarthyite persecutions of
Communists. Meiklejohn's book, Free Speech and its Relation to Self-Government, delineates a
position that very nearly approaches free speech absolutism. He founds his argument on
a broad construction of the First Amendment—“to say that no laws of a given type shall
be made means that no laws of that type shall, under any circumstances, be made.”12 But
he denies liberal natural-rights arguments that the freedom of speech guaranteed thereby
is a right analogous to that outlined in the Fifth Amendment. Instead, he argues, the
Constitution describes two kinds of rights: “the 'liberty' of speech, which is subject to
abridgement ... is radically different in intent from the unlimited guarantee of the
freedom of public discussion, which is given by the First Amendment.”13 The “liberty”
of speech is the right to private speech; the “freedom” of speech is the right to the
public use of reason. This distinction justifies Meiklejohn's absolutism, because there can
be no such thing as too much public discussion or intellectual freedom. “Political self-
government comes into being only insofar as the common judgment, the available
intelligence, of the community takes control over all interests.”14 Hence the
11 Immanuel Kant, “What is Enlightenment?,” in The Enlightenment Reader, Isaac Kramnick, ed.
(New York: Penguin, 1995), 3.
12 Alexander Meiklejohn, Political Freedom; the Constitutional Powers of the People (New York: Harper,
1960), 20. This book includes the entire text of Free Speech and its Relation to Self-Government.
13 Meiklejohn, Political Freedom, 37
14 Meiklejohn, Political Freedom, 60.
8
unlimitedness of public speech, in Meiklejohn's argument, is bought only at the cost of
severing it entirely from the private.
Cass Sunstein, the most-cited living law professor, defends a related position in his
1993 volume Democracy and the Problem of Free Speech. Indeed, he cites Meiklejohn as one of
his “forebears,” along with James Madison.15 According to Sunstein, the First
Amendment possesses, or ought to possess, two “tiers”—one which includes
democratic deliberation and other “high value speech” and which may not be regulated
except in very rare instances, and another which includes “low value speech” and for
which protection should be weaker.16 Bearing that Madisonian framework in mind, he
proceeds to disassemble various burning contemporary issues related to free speech, and
concludes that in many cases the First Amendment argument ought not to apply—for
hate speech, for instance, or pornography.17 For Sunstein, as for Meiklejohn, the
problem of free speech is first and foremost the defense of public rather than private
speech.
To his credit, Sunstein provides an honest summary of why he puts so much stock
in democratic deliberation: “we might hope that a well-functioning system of free
expression will ultimately encourage a degree of public virtue and produce high levels of
participation and genuine deliberation.”18 The key to this statement is not simply the
problem implied by the last two items—why should we be concerned about deliberation
and participation if we do not already accept Sunstein's model?—but also the reference
to “public virtue,” an unsurprisingly Madisonian expression which brings us back to
deliberativism's origins in Cato's Letters. The deliberativist is committed to a
fundamentally republican political philosophy which grounds the legitimacy of the state
in public-sphere procedures of surveillance, exposure, and debate.
That form of republicanism is vulnerable to a certain category of resort to purity.
Deliberativists often suggest that new institutions or technologies threaten or violate the
very premises of democratic deliberation by introducing considerations such as profit or
entertainment. Meiklejohn, for instance, indicts the “commercial radio,” an innovation at
the time, for being “engaged in making money” and “corrupt[ing] both our morals and
our intelligence” instead of “cultivating those qualities of taste, of reasoned judgment, of
integrity, of loyalty, of mutual understanding upon which the enterprise of self-
government depends.”19 For Sunstein, the increasing power of commercial television
networks and advertisers to influence public speech is a similarly disquieting
phenomenon.20 This standpoint, by appealing to a communication devoid of economic
or entertainment motives, betrays its own weakness—a preference for discussing the
discourse it wants rather than the discourse it has and has always had.
In an earlier book, the philosopher Frederick Schauer groups Meiklejohn's
arguments (and Sunstein's, by implication) with certain other deliberativist positions as
15 Sunstein, Democracy and the Problem of Free Speech, xvii, 38, 122.
16 Sunstein, Democracy and the Problem of Free Speech, 8-11.
17 Sunstein, Democracy and the Problem of Free Speech, 193, 226.
18 Sunstein, Democracy and the Problem of Free Speech, 224.
19 Meiklejohn, Political Freedom, 86-87.
20 Sunstein, Democracy and the Problem of Free Speech, e.g., 58-67.
9
“the argument from democracy.” While not rejecting it, Schauer argues that it is
“narrow” and cannot support his broader goal, a “Free Speech Principle,” because it is
limited to a political context.21 Likewise, Schauer moderates deliberativist enthusiasm
about the value of public debate for arriving at rational conclusions.22 But his quest for a
Free Speech Principle leads him, first, to distinguish the kind of speech he would like to
defend—the more high-value kind, naturally—from “many, perhaps even most, forms
of communication.” This commitment turns out to imply a stance on pornography very
similar to Sunstein's.23 In arguments about free speech, it seems, the deliberativist
position returns whenever speech is segregated into high-value and low-value
components, or more or less communicative versions. That distinction tends to sacrifice
private liberty to the public, and, more importantly for our argument, assign an
inexplicably positive value to public speech as such. If we are to follow the Johnsonian
line, we should be suspicious of all such assessments.
That suspicion may be well served by a recent book by Guido Pincione and
Fernando Tesón entitled Rational Choice and Democratic Deliberation. It is not without
serious problems.24 Nonetheless, the insights it provides serve as a useful corrective to
deliberativist exuberance. Pincione and Tesón argue that deliberation reliably leads to
demonstrably skewed outcomes rather than public virtue and high-quality governmental
decision-making. The modes of argument that have the most success in deliberative
venues—such as the argumentum ad populum or the appeal to vivid images—are precisely
those that lead to the most incorrect outcomes, as well as being easily manipulable by
major rent-seeking actors such as corporations and government bureaucracies.25
Furthermore, public deliberation suffers from a problem they describe using rational
choice theory: actors participating in deliberation apply a given amount of effort to
seeking out information about the issues being deliberated, but this information will
often be flawed, and further investment in order to find reliable information would no
longer be cost-effective in terms of the actor's own goals. Hence, “in a typical liberal
democracy, instrumentally and epistemically rational agents will display certain patterns of
political error.”26 (In other words, I only have so much money and energy to spend, and
yet I want to be an informed citizen. Instead of purchasing a subscription to JSTOR, I
will rely on television and newspapers, which distort communication significantly enough
21 Schauer, Free Speech, 35-46.

22 Schauer, Free Speech, 28.
23 Schauer, Free Speech, 102, 181-184.
24 Guido Pincione and Fernando Tesón, Rational Choice and Democratic Deliberation: A Theory of
Discourse Failure (Cambridge: Cambridge University Press, 2006). Among the major issues is
that it is a bilious free-market apologia (e.g., 64, 2-13), and that it engages in blatant well-
poisoning against humanities scholars (88-89). A more serious problem is that the authors rely
on the supposed virtues of empirical social science without providing any good reasons to
believe that a discourse failure effect is not observable there as well. See also Lynn Sanders,
“Against Deliberation,” Political Theory 25, no. 3 (June 1997), 347-377. Sanders' argument,
however, is just as vulnerable as Pincione and Tesón's to the Habermasian objections
articulated below.
25 Pincione and Tesón, Discourse Failure, 21-53.
10
that my net contribution to the public debate will be negative.) The authors offer several
further elaborations of the same principle, with varying degrees of success. Finally, they
conclude that nothing can salvage public discourse except “a radical redesign of political
institutions” along voluntarist communitarian lines, and that any attempt to base a
political theory on deliberation will inevitably be subject to their criticisms.27
The book does offer a convincing rebuttal to deliberativist positions, which are
almost always appeals to values rather than interpretations of actual data—and which are
moreover plagued by their persistent idealization of the democratic discourse situation.
If we take Pincione and Tesón's book to heart, we find that the recurring deliberativist
distinction between high- and low-value speech tends to disappear. In fact, it may
reverse itself, since, rather than contributing negatively to democratic deliberation,
strictly private speech like pornography simply has a zero effect—and a deliberativist
should thus be moved to suppress rather than protect the transmitter and the printing
press. Without going that far, we may at least affirm that our Johnsonian skepticism has
thus far proved justified.
Yet Pincione and Tesón fail in one of their main goals: they cannot construct an
effective rebuttal to perhaps the leading deliberativist, whom they cite repeatedly as
such—Jürgen Habermas. It is true that Habermas's vision of the deliberative process
does not take into account the invidious effects of discourse failure or patterns of
political error, or at least does not seriously attempt to do so from a perspective like
theirs. The difference, however, between Habermas and the other deliberativists is that
he has already prefigured a response to the discourse failure argument.
Indeed, he did so at the very beginning of his career: his Habilitationsschrift, published
in 1962 and entitled The Structural Transformation of the Public Sphere, engages Pincione and
Tesón's central question directly. For Habermas, unlike Pincione and Tesón, the
problem of discourse failure is first and foremost a historical one. The public sphere,
which flowered during the long eighteenth century, had by the middle of the twentieth
lost almost all of its vitality. This has specific effects on the nature of political discussion.
Habermas encapsulates the problem thus:
Those who engage in discussion more frequently (being relatively

speaking the best informed) have a tendency to do no more than
mutually confirm their ideas ... On the other hand, those voters who
fluctuate between parties are recruited predominantly from the large
reservoir of less interested, less informed, and apathetic citizens, to
the extent that they are not altogether indifferent and do not ignore
the election. Thus, as a rule, precisely those who are most decisively
predisposed to avoid a public opinion formed by discussion are the
ones most likely to be influenced in their views—but this time by the
staged or manipulatively manufactured public sphere of the election
campaign.28

28 Jürgen Habermas, The Structural Transformation of the Public Sphere (Cambridge: MIT Press, 1991),
213-214.
11
The roots of this form of discourse failure, in which the public sphere as a venue for
discussion has been subverted by social psychology, public opinion manipulation, and
the capitalization of the world of letters, lie in part in the “refeudalization” of society
attendant upon the rise of a social-welfare state.29 In other words, Habermas's diagnosis
is separated from Pincione and Tesón's by a considerably smaller distance than they
assume.
But the historicized nature of his account also allows him to rebut their contention
that the problem of discourse failure is solvable (or at least avoidable) only by a far-
reaching and improbable reconfiguration of the political. However rotten-through the
public sphere of the twentieth century might be, we possess in the eighteenth century an
example of a public that could effectively exercise its reason in rational-critical debate.30
The implications of this are far-reaching: because a public sphere properly speaking once
existed, deliberativism remains a going concern—and for Habermas, it seems to provide
the only hint of a resolution to the “crisis tendencies in advanced capitalism.”31 From the
discursive features of the eighteenth-century public Habermas derives the characteristics
of an ideal discourse situation that functions as the fundamental ground of all norms,
and thereby creates a deliberativism more theoretically sophisticated and resilient than
any we have yet discussed.
Nevertheless, we should not yet give up on Dr. Johnson. For if it is discovered that
Habermas's account of the eighteenth century is flawed in a way that reveals structural
instabilities throughout his theoretical edifice, we may still find that his deliberativist
solution appears as illusory as Meiklejohn's or Sunstein's. To investigate this question is
the purpose of the next essay, which hopes nonetheless to be driven by “the critical
recollection of self-generated illusion that has become independent and opposed to the
subject”—a Habermasian ideal.32
29 Habermas, Structural Transformation, 166-175, 193-195, 230-236.

30 Habermas, Structural Transformation, 28 and passim.
31 E.g., Habermas, Legitimation Crisis (Boston: Beacon Press, 1975), 92-94, 142-143.
32 Habermas, Knowledge and Human Interests (Boston: Beacon Press, 1971), 299.
12
II
Habermas and the Problem of Print

In the preface to The Structural Transformation of the Public Sphere, Habermas announces
his methodological perspective as an attempt to “proceed at once sociologically and
historically.” He hastens to reassure us that this does not mean treating the public sphere
as an abstract, “idealtypically generalized” sociological concept.33 Indeed, Habermas's
public sphere, as a “category of bourgeois society,” does not survive the encounter with
history. But there is also an important sense in which his theory draws its greatest
strengths from the abstraction of the concept. If the public sphere were really as
inextricable from its historical enmeshment as Habermas seems to claim, it would be
impossible to draw deep connections between this work and Habermas's other
intellectual commitments—intersubjectivity in philosophy, communicative action and
justification in social theory. These connections clearly do exist. In fact, the line of
demarcation between the historical public sphere and the ideal public sphere of lifeworld
communication is apparent even in Structural Transformation itself.
For instance, Habermas writes: “The claim to power presented in rational-critical
public debate, which eo ipso renounced the form of a claim to rule, would entail, if it were
to prevail, more than just an exchange of the basis of legitimation while domination was
maintained in principle.”34 But it is hardly clear that such a form of debate really was “eo
ipso” incompatible with direct power claims. The British journals of the early eighteenth
century, which Habermas appropriately sees as a touchstone, were rarely as shy in
practice as they were in theory about shilling for some political faction or other. John
Wilkes' later North Briton was intimately linked to an electoral campaign. What Habermas
is really delineating, therefore, is not the precise outline of the historical public sphere
but rather a forerunner to his later theory of communicative action—action oriented not
to “success” but to “reaching understanding.”35 The point is not that Habermas
sacrifices historical accuracy to theoretical advantage, but rather that, within Structural
Transformation, the historical and the theoretical are locked in an uneasy but equal
partnership.
As several scholars have noted, this tension is what is most often elided in critiques
of Habermas.36 Historians, specifically, tend take Habermas too easily at his word: they
33 Habermas, Structural Transformation, xvii.

34 Habermas, Structural Transformation, 28. Here and below, all italics are in the original.
35 Habermas, The Theory of Communicative Action (Boston: Beacon Press, 1984), I:285-287ff.
36 See Harold Mah, “Phantasies of the Public Sphere: Rethinking the Habermas of Historians,”
Journal of Modern History 72, no. 1 (March 2000), 153-182. For an analysis of this tendency
along similar lines, see Thomas McCarthy, “Practical Discourse: On the Relation of Morality to
Politics,” in Craig Calhoun, ed., Habermas and the Public Sphere (Cambridge: MIT Press, 1992),
51-72.
13
Part II · Habermas and the Problem of Print
read the eighteenth-century public sphere as it is described in the beginning of Structural
Transformation as a more or less accurate reflection of what Habermas envisions the ideal
of discourse to be.37 Oskar Negt and Alexander Kluge, early Marxist critics of his book,
appear to commit precisely this mistake. The bourgeois public sphere, they claim,
presents a unified and disinterested front only because it must camouflage specific class
interests. Their deeper analysis reveals a series of underlying, fragmented publics, which
include both the liberal public and the counterpublics of the proletariat. The true ideal
ought to be founded on the latter's revolutionary potential, not on the ideological
masquerade of the former.38 Nancy Fraser, a more recent critic, counterposes women's
counterpublics to the monolithic and inherently exclusionary public of the bourgeois
male. One of the implications she draws from this move is that a truly emancipatory
vision of the public sphere must be founded on the recognition of a multiverse of partial
publics rather than a single, universalized, and impersonal one.39
Habermas's answer to the second of these critiques, and implicitly to the more
enduring aspects of the first, is a revision. He recommends that we adopt a formulation
that “no longer restricts the search for normative potentials to a formation of the public
sphere that was specific to a single epoch.”40 In short, he decouples the historical
dimension of the public sphere from its theoretical form and discards it, allowing him to
completely deflect any attacks rooted in a historical context. What could have been a
thoroughgoing critique of Habermasian deliberativism thereby becomes co-opted by the
theory itself as yet another exposure of the present (or past) inadequacies of actually
existing communication.
This is not as radical a departure from Structural Transformation as it appears. In fact,
the earlier work relies on a similar move, of a kind which Jacques Rancière has called
“the syllogism of emancipation.” Ranciere writes:
The aftermath of the revolution of 1830 in France saw an

efflorescence of working-class publications, pamphlets, and
newspapers all basically asking the same question: are the French
people equals or are they not? These texts ... tend to take the
approximate form of a syllogism. ... The major premiss contains what
the law has to say; the minor, what is said or done elsewhere, any
word or deed which contradicts the fundamental legal/political
affirmation of equality. But there are two ways of conceiving the
contradiction between the major and minor premisses. The first is
37 It is necessary to note that here and below, I am only indicting the work of Habermas's critics
for not fulfilling my own critical project, and not from the point of view of their own goals. In
fact, they almost to a one declare their allegiance to the emancipatory potential of the public
sphere as a concept—hence a critique not resulting in Habermas being decisively routed never
presents a problem.
38 Peter Uwe Hohendahl, “Critical Theory, Public Sphere and Culture. Jurgen Habermas and his
Critics,” New German Critique 16 (Winter 1979), pp. 104-109.
39 Nancy Fraser, “Rethinking the Public Sphere,” in Habermas and the Public Sphere, 109-142.
40 Habermas, “Further Reflections on the Public Sphere,” in Habermas and the Public Sphere, 442.
14
the way to which we are accustomed. It amounts to the simple
conclusion that the legal/political words are illusory, that the equality
asserted is merely a facade designed to mask the reality of inequality.
Thus reasons the good sense of mystification. Yet this is by no means
the logic followed by these workers. The conclusion they draw is
usually that either the minor premiss or the major premiss must be
changed.41
In other words, either the idea of equality as expressed in the law must be abandoned, or
action must be taken to bring reality into accord with this promise. Unlike the cynical
interpretation, which is free to stop at exposing the lie of equality, the syllogism of
emancipation is inherently normative and prescribes a direction of action. It follows that,
from the perspective of this syllogism, even the most successful cynical interpretations
can only reinforce this drive—they only make change more and more imperative.
It is true that Habermas is not clear about the normative emphasis of the concept of
the public sphere—which contrasts sharply with the ideas he develops in his later work.
But the key lies in the closing paragraph of Structural Transformation, which is perhaps its
most optimistic. A solution to the crisis of the public sphere is offered: “[T]he
communicative interconnectedness of a public can be brought about only in this way:
through a critical publicity brought to life within intraorganizational public spheres ... A
method of public controversy which came to prevail in that matter could both ease the
forcible forms of a consensus generated through pressure and temper the forcible forms
of conflicts hitherto kept from the public sphere.”42 What is important is not the
substance of this proposal, which Habermas appears to have abandoned, but the fact
that it occasions a reflection on whether “the exercise of domination and power ... is
open to substantive change.”43 This argument is best read as an expression of the
following two claims: a) the public sphere as a mode of tamping down the exercise of
power was flawed precisely because its internal contradictions led to its negation and its
inability to perform its function; b) some kind of emancipatory notion of public
communication can be rescued from the wreck of the public sphere and made to realize
its promise.
The upshot of all this is that any argument against Habermas's theory that is
predicated on revealing the hidden structures of domination (whether of the gender,
class, or any other variety) that inhere in his concepts can only be a demystifying
interpretation. The vision of a new and fully realized public sphere is the minor premise
of his emancipatory syllogism, which means that Habermas ultimately agrees with his
critics. How are we, then, to argue against him, if we persist in our Johnsonian project?
No amount of demystification will do. Still, a certain lacuna in Rancière's text suggests a
possible approach. His proposal includes two versions of the syllogism of emancipation,
but he only discusses one, which is the struggle of the workers to make the minor
41 Jacques Rancière, On the Shores of Politics (London: Verso, 2007), 45-47.

42 Habermas, Structural Transformation, 249-250.
43 Habermas, Structural Transformation, 250.
15
premise conform to the major.44 That struggle, of course, is also Habermas's. There
remains the other path, a sort of via negativa—to get rid of the major premise entirely, and
affirm that public communication without systematic distortion is not only impossible
but unthinkable.
The preliminary demarcation of such an path was already completed by Michael
Warner and Nicholas Garnham at the very same conference where Habermas delivered
his “Further Reflections.”45 What their approaches have in common is a focus on
mediatization, broadly construed. This includes not only the socio-technological
dynamics of the media (say, television, radio, or print), but also the processes that
intervene between the subject and the communicative act.
Warner begins from the premise that, in order to participate in a public (or to create
a public), the subject must undergo self-abstraction. From a particularized, carnal,
individual body, she becomes a “public, prosthetic body,” which is endowed with all the
qualities of disinterest and universality that remain inaccessible to the flesh.46 And the
recipient of an act of public communication does not preserve his self-identity either:
because such an act addresses him impersonally, as a member of its public but not as an
individual, he begins likewise to universalize his understanding. An inevitable zone of
abstraction, in short, blocks the path of any public communication between sender and
recipient. Yet Warner's further exploration of this insight relies on a demystifying
interpretation: he argues that in the contemporary setting, asymmetries in the abstraction
process produce a totalitarian “mass body” that reflects a normative definition of who
gets to be included in the “general public.”47 Thus reaching outside of the zone of
abstraction, Warner's critique still preserves the possibility that the assymetries can be
corrected and the mass subject dethroned.
Garnham's essay, while simpler and more direct, may offer more promise. For
Garnham, the trouble with traditional deliberativism (which is improved upon, but not
fully salvaged, by Habermas's account) is that any path to a political outcome already
runs through politically-implicated power structures; moreover, the intellectual resources
available to us for attacking these structures are dependent upon either simplistic,
reductive nineteenth-century models or nostalgic appeals to a lost face-to-face
communication. Neither can be adequate: our attention must be focused on the internal
dynamics of the zone of abstraction, never losing sight of “the nontransparency of the
lifeworld” and the special difficulties it presents.48 He sees Habermas's theory, perhaps
more than any other, as potentially able to account for the consequences of this
nontransparency; furthermore, Garnham's account is rooted in a contemporary (i.e.,
early-1990s) political context and encumbered by an needless skirmish with
44 Rancière, On the Shores of Politics, 50-51.

45 Nicholas Garnham, “The Media and the Public Sphere,” and Michael Warner, “The Mass
Public and the Mass Subject,” in Habermas and the Public Sphere, 359-401. It is interesting that in
his “Concluding Remarks,” Habermas fails to take these objections seriously or analyze them
in any depth (p. 473).
46 Warner, “Mass Public,” 381. See also Warner, Publics and Counterpublics, chapters 2 and 3.
47 Warner, “Mass Public,” 392.
48 Garnham, “The Media and the Public Sphere,” 365.
16
postmodernism. In order to deliver on its critical promise, then, his point of view must
be broadened and its implications for the totality of Habermas's thought must be
comprehended in full.
Habermas's refinements and elaborations of the underpinnings of public-sphere
communication involve a persistent appeal to an ideal discourse situation. This appeal
does not only operate on the level of an emancipatory ideal, as it does in Structural
Transformation. Instead, it is implicated any time he discusses any kind of rational
justification on the level of the lifeworld. This is particularly evident in Legitimation Crisis:
What rationally motivated recognition of the validity claims of a norm of

action means follows from the discursive procedures of motivation.
Discourse can be understood as that form of communication that is
removed from contexts of experience and action and whose structure
assures us: that the bracketed validity claims of assertions,
recommendations, or warnings are the exclusive object of discussion;
that participants, themes and contributions are not restricted except
with reference to the goal of testing the validity claims in questions;
that no force except that of the better argument is exercised; and
that, as a result, all motives except that of the cooperative search for
truth are excluded.49
Though there is a clear suggestion of normativity here, it comes in the context of an

argument about the conditions for the functioning of a successful society. In other
words, while system-colonization processes may have undermined the rational
justification of norms, a discourse narrowly restricted to the “cooperative search for
truth” is at least an immediately viable possibility—and, moreover, the insinuation is
made that it was once at some point a reality as well.
Knowledge and Human Interests operates on a rather different plane. It situates itself
within the history of philosophy, not sociology, moving from Kant to Freud.
Nonetheless, the same appeal—which erects a still un-emancipated but ideal standard—
recurs here as well. Habermas acknowledges that “only in an emancipated society, whose
members' autonomy and responsibility have been realized, would communication have
developed into ... non-authoritarian and universally practiced dialogue”; going even
further, he condemns idealism for its “ideological” presumption that “the autonomy and
responsibility posited within the structure of language are not only anticipated but real.”
In true Marxian spirit, he opposes to this a dialectical excavation and reconstruction of
the suppressed dialogue, a salutary practice which is supposed to promote “mankind's
evolution toward autonomy and responsibility.”50 The problem with this approach—
which is hardly mitigated by the psychoanalytic analogies he draws—is that it assumes
that philosophy has access not only to the sedimented layers of unsuppressed dialogue
but also to the dialogue that might have happened but did not. (One is reminded of the
old saw: if it is truly a blessing never to have been born, how many are so lucky?) More
49 Habermas, Legitimation Crisis, 107-108.

50 Habermas, Knowledge and Human Interests, 314-315.
17
significantly, to realize the program in question, it is necessary to put into practice a
philosophical method that would in itself prevent the suppression or distortion of
discourse—thus, hypocritically, taking the anticipated for the real.
Both Legitimation Crisis and Knowledge and Human Interests were published early in
Habermas's career, the former in 1973, the latter in 1968. It may therefore be objected
that to excavate them in this way is to ignore the substantial reversals and revisions that
have marked Habermas's thought in the 1990s and 2000s.51 Yet an essay published in
1996 displays the same tendency. “Three Normative Models of Democracy” contrasts
liberal, republican, and discourse-theory [read: Habermasian] interpretations of the
democratic process. The weakness of liberalism is that it overemphasizes balancing and
compromise; republicanism is too inclined to collapse society and the state into one
another. Discourse theory evades both problems. It “works instead with the higher-level
intersubjectivity of communication processes that unfold in the institutionalized
deliberations in parliamentary bodies, on the one hand, and in the informal networks of
the public sphere, on the other.” This theory, relying on the abandonment of “the
philosophy of the subject,” speaks in terms of “the flow of discursive opinion and will-
formation whose fallible results enjoy the presumption of rationality.”52 While this may
certainly be Habermas's most compelling formulation of his ideal, “the presumption of
rationality”—and the unproblematically assumed informality, freedom, and openness of
the lifeworld—can hardly be granted so easily. The smooth flow of deliberation, in short,
is another modus of the pre-emancipatory discursive ideal.
Especially in the early and middle period of Habermas's work, the discursive ideal—
in fact, the process of communication itself—is an oral one. In “What is Universal
Pragmatics?”, communication is preeminently “speech” that occurs between “speakers”
and “hearers,” with the rest of the theoretical vocabulary (e.g., “sender” and “receiver”)
used as synonyms.53 Just as revealing is Habermas's account of his own foundational, “a
priori” “primitive terms” in Theory and Practice: “In interactions (or at the level of possible
intersubjective communication) we encounter objects of the type of speaking and acting
subjects.”54 Less obviously, this reduction of communication to orality is at work in
Structural Transformation as well. After describing the early, face-to-face public sphere of
salons, coffehouses, and Tischgesellschaften, Habermas writes: “Living room and salon were
under the same roof; and just as the privacy of the one was oriented toward the public
nature of the other, and as the subjectivity of the privatized individual was related from
the very start to publicity, so both were conjoined in literature that had become 'fiction'
... the public ... had long since grown out of early institutions like the coffee houses,
salons, and Tischgesellschaften and was now held together through the medium of the
51 Indeed, this is a convenient argument that is often made any time a critique of Habermas is
offered. See, for instance, Christopher F. Zurn, review of Perspectives on Habermas, Lewis Edwin
Hahn, ed., Journal of the History of Philosophy 40, no. 2 (2002), 274-275.
52 Habermas, “Three Normative Models of Democracy,” in The Inclusion of the Other (Cambridge:
MIT Press, 1998), 239-252.
53 Habermas, “What is Universal Pragmatics?” (1976), in On the Pragmatics of Communication
(Cambridge: MIT Press, 2000), 21-104.
54 Habermas, Theory and Practice (Boston: Beacon Press, 1973), 7-8.
18
press.”55 In other words, although early and late forms of the public sphere did differ
qualitatively, at root the latter was a simply a quantitative unfolding of the former.56
This point is important, not because his choice of words in itself undermines his
argument, but because it reveals a key deficiency at the level of his analysis of
communication: by extracting “pure” communication from the media it is clad in, and
treating it as speech, Habermas denies himself the ability to really account for
mediatization except as another version of systematically distorted communication. And
because any Habermasian interpretation takes the pre-emancipatory discursive ideal as a
standard, a guideline, or a point of reference, it cannot problematize this process without
violating its own normative foundations. Put another way, the mission of any discourse-
theoretical analysis, in both the common and psychoanalytic sense, is to isolate pure
communication in order to get at the raw “flow” of rational will-formation and
discourse, which ensures that any media that have a structuring influence can only appear
as blockages (or perhaps, by a strangely appropriate analogy, Deleuzian machines). In
terms of content itself, by the same token, mediated communication is irretrievably
collapsed into the face-to-face.
It is obvious that the Derridean argument against phonocentrism—which would
deny the purity and unmediatedness even of face-to-face communication—would apply
here quite neatly. Indeed, it would seem that Habermas's successive reinterpretations of
the communicative processes of the lifeworld (from a concrete social formation to a
universal pragmatics; from a universal pragmatics to a flow) are Rousseau-like attempts
to access this purity through an infinite chain of supplements.57 But, be that as it may, it
would be uncharitable to cite Derrida against Habermas, given the depth and duration of
their philosophical disagreement. Instead, we might consider Habermas's own argument
against Derrida, one important line of which involves the objection that Derrida is only
reconstructing a Heideggerian Ursprungsphilosophie in the form of an “inverted
foundationalism.”58 If we provisionally accept this argument, we find that we must look
for something else in place of Derridean “writing” to oppose to Habermas's pure
speech—something irreducible to ontology. Print, as it has been treated by Michael
Warner, can provide such a concept.59 Its immediate advantages are clear: unlike
Derrida's arché-writing, it is an ephemeral, contingent, and historically-bound
phenomenon that is dependent on technology and culture. But how does it function in
the context of a critique of pure speech?
55 Habermas, Structural Transformation, 51.

56 It is a bit beside the point whether Habermas's articulation of this historical dynamic is correct
in substance. But see, e.g., David S. Shields, Civil Tongues and Polite Letters in British America
(Chapel Hill: UNC Press, 1997), which suggests that the distinction was larger and more
nuanced.
57 See Jacques Derrida, Of Grammatology (Baltimore: Johns Hopkins University Press, 1997), 141-
316.
58 Habermas, The Philosophical Discourse of Modernity (Cambridge: MIT Press, 1987), 181.
59 See Michael Warner, Letters of the Republic (Cambridge: Harvard University Press, 1990), 1-34,
and Warner, “Mass Public,” 380.
19
Franz Kafka, in a passage often cited by Derrideans, suggests an interesting feature
of the written form. In one of his last Letters to Milena, he speaks of letter-writing as “an
intercourse with ghosts, and not only with the ghost of the recipient but also with one's
own ghost which develops between the lines of the letter one is writing and even more
so in a series of letters where one letter corroborates the other and can refer to it as a
witness.” The ghosts, for Kafka, are ravenous beings that intervene in any
technologically-mediated human communication—“the telegraph, the telephone, the
radiograph”—in order to frustrate it and feed on the impossibility of (in Derridean
terms) presence.60 Letter-writing, in other words, simulates “natural communication” but
is in fact the furthest thing from it—and the more the letters pile up, the more the ghosts
acquire a life of their own. Kafka's model is foundational for any attack on pure speech,
because it introduces a crucial element: misdirection. The reason the ghosts have power
is that they ensure that “written kisses never reach their destination”: the actual recipient
is never anything but a ghostly structure.61
Warner's account of print allows us to think of an intentional misdirection. A writer's
foray into the world of print, though it may be (and often was) in the form of a letter, is
always targeted at a public that “exists by virtue of being addressed.”62 The zone of
abstraction we brought out of Warner's work earlier, then, is something of a red
herring—indeed, it makes more sense in terms of letter-writing than of print. In print,
there can be no zone that intervenes between sender and recipient, because the existence
of a sender precludes the possibility of a set recipient. By the same token, the existence
of a recipient already implies that the message has travelled through the circulatory
system of texts, and hence the original sender's role is no longer a determining one.
Kafka's purloined letters bring us one step away from natural communication; Warner's
public-creating printed texts bring us further still, because natural communication does
not even serve as a lost ideal. Between the face-to-face world of the coffeehouse and its
printed reflection in the Spectator lies a gap that no merely quantitative change could have
bridged.
An eighteenth-century example of the problems mediatization causes can be found
in Rousseau's “Discourse on the Sciences and the Arts” (the First Discourse). Rousseau
attempts to enter into a debate about norms, arguing that sciences and arts should be
abandoned in favor of the cultivation of virtue. Along the way, he complains about
public-sphere institutions, which, he claims, lead to vice. One is the institution of
academic prizes: “There are a thousand prizes for beautiful discourses, none for beautiful
actions.” Another is the art of printing: “Did paganism, brought to all the confusion of
human reason, leave anything to posterity that could be compared to the shameful
monuments prepared by printing under the rule of the Gospel? ... Thanks to printed
characters and the use to which we put them, the dangerous fantasies of Hobbes and
Spinoza will remain forever.”63 It is almost enough to make us forget that we are reading
60 Franz Kafka, Letters to Milena (New York: Schocken Books, 1990), 223.
61 Kafka, Letters to Milena, 223.
62 Warner, Publics and Counterpublics, 67-95.
63 Jean-Jacques Rousseau, Discours sur les sciences et les arts, Discours sur l'origine et les fondements de
l'inegalite parmi les hommes, Du contrat social (Paris: Garnier Flammarion, 2008), 34-37.
20
a printed pamphlet once submitted as a (winning) entry in a prize competition held by
the Academy of Dijon. In other words, the medium itself implicates Rousseau in a
contradiction: in the process of defending virtue, he is only augmenting vice by
participating in empty palaver. He attempts to dodge the problem by claiming that he is
not writing for readers “made to be slaves to the opinions of their century”—i.e., that he
wants to reach a particular kind of reader—but the medium, as Rousseau seems to be
aware, is incompatible with such directness.64 We are reduced to listening for “the voice
of conscience in the silence of passions.”65
Habermas's pre-emancipatory ideal, relying as it does on speakers and hearers in a
cooperative intersubjective “search for truth,” is thus not simply inadequate for thinking
about the eighteenth-century world. It also makes him as vulnerable as Sunstein or
Meiklejohn to the objection that untrammelled political discourse uncontaminated by
technologically-induced problems is not something observable or realizable in any actual
cultural setting. This is because intentional misdirection—especially into a textual
circulatory system—negates the sender's further intentions, and thereby makes the
presuppositions of communicative action unattainable. If I am a good republican citizen
with a sense of my civic duty, and I have a mind to participate in printed public debate, I
can neither guarantee my own commitment to the Habermasian discursive norms
(because circulation bears as much responsibility for my texts as I do) nor receive such
guarantees in return (because I can have no interlocutor in mind). And if I am less
committed to these norms, I cannot reliably or straightforwardly warp the
communicative situation in my favor. In Habermas's terms, I cannot act either
communicatively or strategically—which means that the derivation of a unified
revolutionary communicative action from even the most civic-minded public sphere
looks like an absurdity.
The problem of guaranteeing one's discursive commitment in print arose often in
the eighteenth century, but was never satisfactorily resolved. For instance, The
Craftsman—one of the earliest political periodicals—constantly struggled against its
opponents' charges of having violated the discursive values of the public sphere, and
levelled them in return. In one essay, Lord Bolingbroke (one of the principal writers) is
faced with the need to respond to these charges directly. He both apologizes for using
“particular Expressions” and accuses his enemies of using “personal Abuse” against him; if
he attacks “one Man” (Prime Minister Robert Walpole) too much, it is because his
enemies take him for a “Patron.”66 But he is no more capable of proving his own
commitment than his enemies are, because values like objectivity and abstinence from
personal attacks are precisely what is at stake in the debate—he cannot first establish his
commitment and then present a political argument, because the two are tightly
interwoven. Bolingbroke is driven to argue that “the fullest Justification of my writings,
and the strongest Condemnation of my Adversaries” proceeds from the “general
(Translations mine.)
64 Rousseau, Discours, 9.
65 Rousseau, Discours, 40.
66 Henry St. John, Viscount Bolingbroke, The Craftsman, no. 264, July 24,1731, in Contributions to
the Craftsman (Oxford: Clarendon Press, 1982), Simon Varey, ed., 128-129.
21
Principles” maintained by each side, leavening his claim with an assertion of fealty to the
“Liberty of the Press.”67 This, in effect, constitutes an admission of defeat, an
acknowledgement of his inability to separate the topic under discussion from its
discursive circumstances. That impossibility, in turn, prevents a Habermasian analysis of
the situation from making any sense of it whatsoever.
If these terms—communicative and strategic action—suffer such an abrupt collapse
when confronted with an impure model of communication, it may be worthwhile to see
if the problem does not lie in their original definition. The source of the concepts lies in
the Theory of Communicative Action, where they are derived from J. L. Austin's theory of
speech acts. Austin distinguishes between illocutionary (aspects of) speech acts, which
yield some result purely by virtue of being enacted, and perlocutionary ones, which have
effects that go beyond the purely communicative context. Habermas frames the concept
of strategic action as being founded on a perlocutionary speech act—communication
with a teleological intent. Communicative action, which is “oriented towards reaching
understanding” and which Habermas takes as his normative ideal, excludes the
perlocutionary element.68
In the beginning of this account, Habermas makes a crucial move. He writes,
“Speech acts, like actions in general, can have side effects that the actor did not foresee.
These are perlocutionary effects in a trivial sense, which I shall not consider any further.”
His analysis is restricted to perlocutions deliberately oriented towards success by some
communicative participant or other.69 Where does this exclusion come from? Certainly
not from Austin, who says quite the opposite. First he admits as legitimate the objection
that “the perlocutionary act always includes some consequences ... There is no restriction
to the minimum physical act at all. That we can import an arbitrarily long stretch of what
might also be called the 'consequences' of our act into the nomenclature of the act itself
is, or should be, a fundamental commonplace of the theory of our language about all
'action' in general.”70 His response, more importantly, does not rely at all on restricting
the scope of perlocution along the lines of intentionality. Instead, he generates a
distinction between “perlocutionary objects” (intentional goals) and “sequels” (results
achieved unintentionally and any other effects that follow from the perlocution).71
Thus, if Habermas's imposition of a hierarchy of importance on Austin's theory
does not, properly speaking, constitute a misreading, at the very least it is an error of
omission. As such, it does not have any particular significance when taken in isolation.
But where it does acquire a baleful tint is in Habermas's treatment of “systematically
distorted communication” a few pages later.72 This is a concept that falls under the
heading of “concealed strategic action,” which is strategic action that appears at first
67 Bolingbroke, Craftsman, no. 264, 132-154.

68 Habermas, Theory of Communicative Action, I:288-295. Some problems in his formulation are
analyzed in James Johnson, “Habermas on Strategic and Communicative Action,” Political
Theory 19, no. 2 (May 1991), 181-201.
69 Habermas, Theory of Communicative Action, I:289.
70 J. L. Austin, How to Do Things with Words (Cambridge: Harvard University Press, 1975), 107.
71 Austin, How to Do Things with Words, 118.
22
sight to be communicative. One version of concealed strategic action is “manipulation,”
which is of course a deliberate camouflaging of strategic intentions under a
communicative pretense. In systematically distorted communication, on the other hand,
“at least one of the parties is deceiving himself about the fact that he is acting with an
attitude oriented to success and is only keeping up the appearance of communicative
action.”73 In the analytic circumstances created by Habermas's exclusion of unforeseen
side effects, the only way communicative action can ever become strategic is by some
kind of intentional subversion.
To suss out this effect doesn't just require the analyst to become a psychoanalyst, a
dubious metamorphosis promoted at length in Knowledge and Human Interests. It also
violates one of the central presuppositions of Habermasian theory, namely, that
“bracketed validity claims of assertions, recommendations, or warnings are the exclusive
object of discussion”—rather than personal origins, racial or gender identity, or,
presumably, the unconscious of one's debating partner.74 This transgression can have
only two possible, and equally unpleasant, effects: either systematically distorted
communication cannot legitimately be brought out in discourse, and therefore any
communicative action may actually turn out to have been strategic—or the analyst is
entitled to trespass against any pre-established discursive bracketings, and therefore
enacts a constant performative contradiction when he acts in the name of a
communicative ideal.75 Habermas's original basis for including systematically distorted
communication in his schema in this section seems to be the role the concept had played
in Knowledge and Human Interests, providing nothing less than a foundation for “both the
pathology of social institutions and that of individual consciousness.”76 But the socially-
generalized (and hence, perhaps, depersonalized) nature of the problem does not remove
the dilemma at the level of any given communicative situation. In fact, it only makes it
more significant: every communicative act involves some deep-rooted element of
strategy of individual or social origin, and this kernel cannot adequately be dealt with by
the theory of communicative action.
Let us return to our point of departure: Habermas and the eighteenth-century public
sphere. As it has been described here, the problem of intentional misdirection operates
specifically in the particular set of historical cultural practices indicated by that term. It is
therefore tempting to think that bringing out the features of this problem is only a
variation on the historians' argument: because it only engages one historical point of
touchdown for the public-sphere ideal, it is incapable of sustaining a thoroughgoing
critique.
In fact, however, the (long-)eighteenth-century discursive world plays a larger role in
Habermas's thought than he appears to acknowledge in his revision. But it is not named
as such. Rather, this role is seen to emerge through a parallelism between the argument

74 Habermas, Legitimation Crisis, 107.
75 On Habermas's own use of the “performative contradiction” argument against Rorty and
others, see Martin J. Makusik, “Habermas on Communicative Reason and Performative
Contradiction,” New German Critique, no. 47 (Spring-Summer 1989), 143-172.
76 Habermas, Knowledge and Human Interests, 288.
23
structures of the Theory of Communicative Action and Structural Transformation. In the former,
Habermas draws on Max Weber to define a fundamental trait separating modern society
from its predecessors. Premodern societies are integrated, and their norms are generated
through religious-mythical worldviews; modern societies are differentiated, and require
77
abstract, universalizing, and rationalistic norms. The crucial difference between
Habermas and Weber on this score is that he does not see the latter as the domain of a
thoroughly instrumentalist, technological, and valueless rationalization. Instead, he sees
the modern uncoupling of the lifeworld from the system as the necessary condition for
the creation of universal rational values by the lifeworld; hence, “from the systemic
perspective of the state, the cultural and political public spheres are viewed as the
environment relevant to generating legitimation.”78 In the contemporary mass-cultural
and mass-political setting, though the potential for “authoritarian” “social control” is
79
much greater, the horizons for discussion and norm-generation are also much broader.
This story sounds very much like a more optimistic version of the account, given in
Structural Transformation, of the Long March from representative publicness to mass
culture—and, broadly speaking, that is indeed the case. If anything, the role played by the
eighteenth century is greater rather than lesser in the later text, though it is unlikely that
the difference is the result of any substantive theoretical disagreement; rather, it comes
from the increasing importance played by norms and processes of legitimation in the
middle period of his work. In Theory of Communicative Action, “the utopia of reason, formed in
the Enlightenment,” functions not simply as a means of policing the government or getting
at vaguely defined ideals but also as the substantive foundation of modern norms
themselves—“a form of life in which the rational potential of action oriented to mutual
understanding is set free.”80 The Enlightenment, then, establishes both the norms and
only legitimate method for arriving at them.
The concrete way in which this establishment of norms takes place is elucidated in
Habermas's most important '90s book, Between Facts and Norms. Here the eighteenth-
century public sphere of bourgeois/hommes is relegated almost to a footnote.81 But
something else takes its place: revolution. Habermas refers approvingly to Hannah
Arendt's positioning of the American Revolution as a paradigmatic example of the “close
kinship between communicative action and the production of legitimate law”—i.e., the creation of
legitimate democratic institutions.82 In his own account, the French Revolution produced
“the historical consciousness that broke with the traditionalism of nature-like
continuities; the understanding of political practice in terms of self-determination and
self-realization; and the trust in rational discourse, through which all political authority
was supposed to legitimate itself,” which raises the further question of the relationship of
77 Habermas, Theory of Communicative Action, I:43-44, I:157ff.

78 Habermas, Theory of Communicative Action, II:319.
79 Habermas, Theory of Communicative Action, II:389-391.
80 Habermas, Theory of Communicative Action, II:328-329.
81 Habermas, Between Facts and Norms (Cambridge: MIT Press,1996), 366.
82 Habermas, Between Facts and Norms, 148.
24
revolution to “rational discourse” as it was instantiated in the public sphere.83 To the
extent that Habermas supplies an answer here, he appears to echo his sentiments in the
much earlier Theory and Practice: the task of revolution was to define and enthrone a
sovereign “opinion publique.”84 A Habermasian revolution, in other words, is the rawest,
most decisive incarnation of the universalizing consensus produced by the public
sphere—it is the pure flow of discourse realized in the form of a world-historical norm-
establishing movement.
In short, Habermas needs the eighteenth century—even in its most stripped-down
revolutionary version—because it fills the lacuna in his argument between
mythologically-grounded archaism and the technocratic systems of modernity, which, if
left unfilled, would return him to the original Weberian outline. But the method of filling
proceeds through a series of violent reductions. First, the eighteenth century's political
and philosophical debates are boiled down to the slogans of Enlightenment. Then,
Enlightenment norms, l'opinion publique, and communicative action are made to
unproblematically equal and represent one another. Finally, Habermas takes l'opinion
publique for consensus, makes it abstract and ahistorical, and has an equally abstract
revolution thrust it into the legitimating foundations of democratic institutions. At each
step, the historical particularities and practices that enveloped anything that could be
called a public sphere or public opinion in the eighteenth century are stripped away,
leaving nothing but the theoretical postulates of Habermas himself. Examples of the
thought of the age appear only if they lay claim to Habermas's own positions, and even
then they are denuded of any contextual underpinnings that may qualify their universal
85
reach.
The purpose of the foregoing is not simply polemical. Rather, it demonstrates that
we have entered a reconfiguration of the debate. We are no longer able to defend
Habermas using the syllogism of emancipation, because such a syllogism requires a
tension between the major premise and the minor—between the promise of the ideal
and the inadequacy of the actual. We could do so before, because we saw in his public
sphere an incarnation of his ideal, flawed but full of potential; to use a distinction
introduced in a similar analysis by Margaret Somers, it provided the “content” to the
86
ideal “form.” Now, the eighteenth century that Habermas relies on to construct this
productive dialectic begins to look like still another kind of form and not content at all: a
theoretical structure generated around a theoretical empty space by means of reduction
to the theorist's own categories. It is therefore possible to move beyond Michael
Schudson's convincing claim that the public sphere as such never existed (at least in the
87
American setting) to the broader claim that it could not possibly have existed. Recall
83 Habermas, Between Facts and Norms, 467.

84 Habermas, Theory and Practice, 76-81, 87-91.
85 E.g., see the treatment of Condorcet in Theory of Communicative Action, I:145-150.
86 Margaret Somers, “What's Political or Cultural about Political Culture and the Public Sphere?
Toward an Historical Sociology of Concept Formation,” Sociological Theory 13, no. 2 (July 1995),
125.
87 Michael Schudson, “Was There Ever a Public Sphere? If So, When? Reflections on the
American Case,” in Habermas and the Public Sphere, 143-163.
25
that the pathologies to which communicative action is seen to be subject, in the context
of the mediated, diversionary eighteenth century public sphere, are not problems with
the medium itself, but with the original theoretical definition given to the term. Such an
effect must permeate any encounter between the supposed eighteenth-century “content”
of Habermas's theory and its historical counterpart.
If we are to construct an alternative conception that avoids the specific pitfalls of
Habermas's argument, we must deal with two problems at once. The first is effectively
attending to the implications of mediatization and intentional misdirection, so that they
are not treated as deviations or corruptions of discourse but as integral factors in its
production. The second is finding a role for systematically distorted communication that
does not rely on latent intentionality and crude psychologism—and that does not exhaust
itself in disadvantageous normative comparisons to “undistorted” communication. One
compelling point of departure for an alternative that is adequate to both challenges can
be found in Beth J. Singer's proposal for a Habermasian pragmatics of artistic
communication. “The meaning of an interpretation,” she suggests, “at least in the arts, is
its consequences for further interpretation, and hence for further production or
assimilation, whether in the ongoing process of producing or experiencing a given
utterance, in repeated performances or experiences of any given product, or in producing
88
or experiencing additional works.”
To bring this formulation in line with our problematic, it may be reframed in the
following way. To begin with, the significance of an utterance, or an intervention in the
public sphere, lies not in its direct perlocutionary object (convincing or disproving, say),
which is hopelessly distant, but rather in its perlocutionary sequels. These sequels take
the form of an impact on the communicative medium itself—the circulatory system of
texts, which can be characterized as an unstable webwork of interpretations. Because an
utterance cannot be produced in the public sphere except out of its prima materia, which
is interpretation, each utterance is already an interpretation, and when it is produced it
joins a whole mass of its fellows. Thus, each utterance destabilizes and reconfigures the
webwork, altering the conditions and possibilities for the production of new utterances,
as well as the circumstances of their consumption. This model answers our two principal
needs. It is faithful to mediatization in the full variety of its aspects—even
technologically, because a change in page layout or even in medium itself constitutes an
intervention with as much interpretive impact as any new theory—just as it gives
intentional misdirection its due. And it provides us with a concept of systematically
distorted communication that liberates us from the problem of intentionality and
precludes the need for psychoanalytic second-guessing.
It does, however, carry its costs in terms of Habermas's theoretical apparatus, even
if the extent to which these costs are simply a recognition of the theoretical deficiencies
already subsisting in his text remains to be determined. Because one cannot step into the
same webwork twice, it is no longer possible to point to a consensus, or even to any
concrete opinion publique, and take it as a norm communicatively arrived at; every point
88 Beth J. Singer, “Towards a Pragmatics of Artistic Utterance,” in Perspectives on Habermas

(Chicago: Open Court, 2000), Edwin Lewis Hahn, ed., 162.
26
of arrival is just a point of departure. It becomes equally difficult to look for processes of
legitimation or grounding, because there is no real sense in which the webwork can serve
as an authoritative court of appeal for democratic institutions. A constitution founded on
the basis of the webwork would not even represent a snapshot of its current state: the
legitimation that it would imagine itself to rely on would be merely an interpretation,
flawed and partial like any other. Even more fundamentally for Habermas's theory,
communicative and (intentionally) strategic action both become nothing more than
interpretive approaches rather than core categories, if indeed they do not disappear
entirely. Communicative action can be preserved as an interpretive approach if we treat
its values—the responsibility for one's own utterances, the need for justification, the
ultimate orientation towards understanding—as kinds of rules for the consumption and
production of utterances. Yet nothing obligates the webwork to conform to the
approach. Whether or not, then, these concepts are preserved in some form, it is clear
that Habermas's theoretical goals can no longer be achieved.
This result is part and parcel of our original goal: to meet Habermas on his own turf,
that of the syllogism of emancipation. The vision of the public sphere as a conduit for
the pure flow of communicative action, which constitutes the major premise of his
argument, reveals, in breaking down, the potential for a different syllogism. Rather than
negating the historically-specific, lived public sphere, our model affirms it and asserts the
necessity for any major premise to accommodate itself to its exigencies. And in doing so,
it realizes Habermas's vital qualification at the beginning of The Structural Transformation of
the Public Sphere. In the course of his theoretical development, he has retreated further and
further from his promise not to operate “idealtypically,” “on a level of generality at
89
which unique processes and events can only be cited as examples.” By restoring pride
of place to the historical, we oppose a materialist movement to this idealizing drift.
It is difficult not to notice at this point that the concrete and the specific has so far
been almost completely absent from the argument—an alarming omission. It remains for
us to remedy this deficiency by turning to an analysis of how eighteenth-century people
really took part in the public sphere. The object will be the world of newspapers and
pamphlets in a backwater where “few men ... have any kind of literature”: the colony of
90
New York.
89 Habermas, Structural Transformation, xviii.

90 Cadwallader Colden to the Earl of Halifax, Feb. 22, 1765, in Documents Relative to the Colonial
History of New York (Albany: Weed, Parsons & Co., 1853), E. B. O'Callaghan, ed., VII:705-706.
27
III
Faction and Legitimacy in Eighteenth-Century New York

In August 1714, William Bradford—New York's royal printer—released Androboros,
the first play to be published in America. Written by Governor Robert Hunter, it was a
classic Augustan farce satirizing his political opponents. In the first act, the latter—
depicted as the inmates of an insane asylum—take it into their heads to organize a
“Senate.” The “speaker” attempts to “humbly propose, that in the first place we concert
and establish some necessary Rules to prevent Confusion.” But the effort founders, as
one member objects:
Mulligrub. I'll have my Speech first.

Coxcomb. D—n your Speech, Let's proceed to Rules.
Babilard. If Rules be necessary to the Speech, let us have the Speech
first, but if the Speech be necessary to the Rules, let us have the
Rules.
Coxcomb. I'm for neither Speech nor Rules, let us fall upon buss'ness.
Speaker. Gentlemen, The Question is not, as I take it, which you'll be
pleas'd to have, but which shall have the Preference; for you may
have both in their Turns.
All Confusedly. Speech, Rules; Rules, Speech, &c.91
The august assembly agrees that Mulligrub will deliver his speech while the rest
formulate rules. This, however, is also a failure. The speaker proposes that “not above
Three or Four at most be allowed to speak at once”; Coxcomb asks that “no Body be
allowed to speak but himself, because for want of the Attentive Faculty, he is ought to
have no share in the Hearing, and so ought to have Compensation in the Speaking”; a
third member gives his proposal in a “Forreign Tongue”; a fourth, “in order to the
Opening of his Mouth,” suggests that the interest rate be raised to twelve percent; a fifth
offers his motion in rhyme. At last, all agree to “Damn the Rules” and resolve
unanimously that “neither this House, nor those whom we Represent, are bound by any
Laws, Rules, or Customs, any Law, Rule, or Custom to the Contrary Notwithstanding.”92
The scene was meant as a commentary on the fractiousness of the colonial New
York legislature, which caused Hunter much grief during his long (and unusually
successful) tenure as governor. But it is an equally apt characterization of eighteenth-
century New York politics as a whole. Within two decades of Androboros' publication, a
print public sphere developed in the colony, proceeding immediately to replicate the
91 Robert Hunter, Androboros (New York: 1714), 2. See Mary Lou Lustig, Robert Hunter, 1666-
1734: New York's Augustan Statesman (Syracuse: Syracuse University Press, 1983), 113-140.
92 Hunter, Androboros, 3-4.
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Part III · Faction and Legitimacy in 18 Century New York
Babel Hunter had portrayed. No firm line could ever be drawn between the form and
the content of political discourse; supposed normative foundations were constantly
subverted in the argumentative context, and rational-critical principles could not hold
out against an arena which in practice refused to be bound by any law, rule, or custom.
Speeches and articles constantly enjoined against factionalism and selfishness, preaching
disinterest and public spirit instead—yet this never prevented one faction from attacking
the other as partisan, and vice versa. As each new governor acceded to the executive,
New Yorkers prayed for an end to the “Animosities, which have, for Some time Past,
unfortunately subsisted Amongst us” and expressed hope that “Every one in a Publick
Station will Shew himself influenced By a Publick Spirit.”93 If such a condition ever
arose, it was only as a brief and exceptional respite.
Over the past four decades, the historiography of colonial America has been
profoundly influenced by scholarship on the “republicanism thesis.” Represented most
notably by Bernard Bailyn, Gordon Wood, and J. G. A. Pocock, this tendency distanced
itself from the Progressive historians' often reductive demystifying treatment of
intellectual developments, arguing instead that ideology (specifically, the republican
political vision promoted by English Country Whigs like Trenchard and Gordon)
formed the horizon for the colonists' understanding of their contemporary political
realities.94 Country Whig ideology, these scholars argue, foregrounded civic virtue as the
principal guarantor of liberty and urged eternal vigilance against tyranny. Taking up this
point, Michael Warner's seminal Letters of the Republic provided conceptualizations of the
public sphere in America with a concrete foundation: in the eighteenth-century colonial
world, the purpose of the public sphere was the surveillance of power by virtuous
citizens. Because of its uniquely abstract and disembodied nature, the public sphere of
print could serve as a disinterested organ of public policing.95
93 Address to Sir Danvers Osborne, October 10, 1753, in Minutes of the Common Council of the City
of New York, 1695-1776 (New York, 1905) V:421-422.
94 See Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap, 1963)
and J. G. A. Pocock, The Machiavellian Moment (Princeton: Princeton University Press, 1975).
Wood provides a revised version of this theory in The Radicalism of the American Revolution (New
York: Knopf, 1991).
95 Warner, Letters of the Republic (Cambridge: Harvard University Press, 1990), 1-96. Increasing
interest in the history of the book in America over the last decade has brought renewed
attention to the intersections between ideology and print, particularly newspapers. See, e.g.,
Charles E. Clark, The Public Prints: The Newspaper in Anglo-American Culture, 1665-1740 (New
York: Oxford University Press, 1994); David Hall, Cultures of Print: Essays in the History of the
Book (Amherst: University of Massachusetts Press, 1996), 151-168; the essays by Charles E.
Clark and Richard D. Brown in The History of the Book in America, Volume I: The Colonial Book in
the Atlantic World (Chapel Hill: UNC Press, 2007), Hugh Amory and David D. Hall, eds., 347-
376; Julie Hedgepeth Williams, The Significance of the Printed Word in Early America (Westport:
Greenwood Press, 1999), esp. 101-134; Mark Kamrath and Sharon E. Harris, eds., Periodical
Literature in Eighteenth-Century America (Knoxville: University of Tennessee Press, 2005);
William B. Warner, “Communicating Liberty: The Newspapers of the British Empire as a
Matrix for the American Revolution,” ELH 72 (2005), 339-361.
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Yet New York politics continue to rankle. Scholars working within a Bailynite vein
rarely find that the Country Whig framework applies neatly to this colony. While the
vocabulary and the assumptions of Country Whiggism frequently show through, they
never enjoy an undisputed success, and are accompanied only infrequently by the kind
of sincere moral purpose they are generally associated with elsewhere. Taking their cue
from Philip Livingston, who wrote in 1737 that New York politicians “Change Sides as
serves our Interest best,” historians often read the political history of colonial New York
as a story of warring factions using ideological language for their own political ends.96 In
the process, their analyses sometimes revert to a kind of Progressive moralism,
emphasizing self-interest at the expense of more nuanced accounts of political culture.
The most striking example of this effect is the scholarship on the case of John Peter
Zenger—as Warner and others have rightly pointed out, a watershed for the power of
Country Whig ideology in America. Finding the motivations of Zenger's backers
ambiguous at best, students of the Zenger case use expressions like “a cadre of selfish
men preoccupied with power.”97 The question of whether the members of this particular
faction were any more or less personally selfish (or kind, or loving) than the partisans of
any other is not a problem which is likely to yield rewards proportionate to its difficulty.
It is more productive to consider how self-interest was interpreted and
accommodated in cultural terms. A number of historians, dissenting from a model that
postulates either Country Whiggism or its betrayal, have suggested that ideological
systems were not as totalizing as has sometimes been assumed. As early as 1981, Eugene
Sheridan—warning against overreliance on the English Opposition theory—traced
Lewis Morris's movement from Country Whig to Court Whig and back again and
concluded that the two systems were not mutually exclusive but rather concurrently
available for use. Morris was not particularly selfish or cynical—he simply sought
advancement using the same means everyone else did.98 Alan Tully has gone further:
New Yorkers accepted party politics, but were prevented by their ideological language
from acknowledging this in a publicly acceptable way. As a result, they evolved a two-
level system of political discourse: informally, party politics were genuinely relished,
while formally every politician employed anti-partisan rhetoric.99
In the New York public sphere, then, ideological language was not simply a
transparent disguise for selfishness. Rather, it constituted a kind of performance:
participation in public discourse could only occur in the context of the bounding norms
96 See, e.g., Lustig, Privilege and Prerogative: New York's Provincial Elite, 1710-1776 (Cranbury, N.J.:
Fairleigh Dickinson University Press, 1995). The most influential account along these lines is
Carl Lotus Becker, The History of Political Parties in the Province of New York, 1760-1776 (Madison:
University of Wisconsin Press, 1909), 5-22. Another is Patricia U. Bonomi, A Factious People:
Politics and Society in Colonial New York (New York: Columbia University Press, 1971).
97 Chad Reid, “'Widely Read by American Patriots': The New-York Weekly Journal and the
Influence of Cato's Letters on Colonial America,” in Periodical Literature in Eighteenth-Century
America, 118.
98 Eugene Sheridan, Lewis Morris, 1671-1746: A Study in Early American Politics (Syracuse: Syracuse
University Press, 1981), 204-205 and passim.
99 Alan Tully, Forming American Politics: Ideals, Interests, and Institutions in Colonial New York and
Pennsylvania (Baltimore: Johns Hopkins University Press, 1994), 390-407.
30
th
and values of the American political culture. Only if the participant was willing to
perform disinterestedness, civic virtue, and public spirit in his textual persona could he
achieve legitimacy. The imputation of hypocrisy that underlies the accusation of
selfishness leveled at the Morris-Alexander faction is therefore misguided: an “honest”
selfishness would have been inconceivable. The process of self-abstraction that drove
Warner's public sphere of print required an equal rhetorical dissociation from one's own
partisan self-interest.
This posed a peculiar problem. The disinterested persona offered, as it were, a
promissory note that in theory could be redeemed for real disinterestedness and public
spirit; without this implicit promise, it could not have afforded any legitimacy. Even if
most New Yorkers were in on the game, it was nonetheless a game with rules—and
these required the credentials of each participant to be as rigorously policed as
government itself was. As a result, the discourse of the public sphere constantly
attempted to go beyond the limits of performance, to redeem the note and purify itself.
But the very abstraction that created it ensured that this project would fail: the personae
of the print public sphere, its pseudonyms, poses, and impersonations, could not be
decisively resolved into living and partial bodies. Hence there was never anything so
simple as a base-superstructure relationship between partisan politics and public
discourse. The doomed quest for legitimacy shaped and drove the print public sphere of
colonial New York, as the rules of the game became tokens in the game itself—like the
inmates in Androboros, New Yorkers could never separate the two to their satisfaction.
One suggestion of the anxieties generated by the inability of print to sustain its own
guarantees can be seen in the province's most influential history of the Indians,
Cadwallader Colden's History of the Five Indian Nations. Sandra Gustafson has analyzed the
colonial portrayal of the Indians as consummate republican orators; in that vein, it is
useful to read this text as a reflection upon Colden's own society.100 The introduction to
the book's first edition (published in 1727, when New York's only newspaper was still a
bare sheet of clippings) described the Iroquois in republican terms, and contained the
pointed observation that if their leaders “should once be suspected of Selfishness, they
would grow mean in the Opinion of their Country-men, and would consequently loose
[sic] their Authority.”101 The second edition, which Colden published in London two
decades later, omitted this sentence. The exact same place in the text now contained the
following meditation:
There is not a Man in the Ministry of the Five Nations, who has gain'd
his Office, otherwise than by Merit; there is not the least Salary, or
any Sort of Profit, annexed to any Office, to tempt the Covetous or
Sordid; but, on the contrary, every unworthy Action is unavoidably
attended with the Forfeiture of their Commission; for their Authority
is only the Esteem of the People, and ceased the Moment that
Esteem is lost. Here we see the natural Origin of all Power and
100 Sandra Gustafson, Eloquence is Power: Oratory and Performance in Early America (Chapel Hill: UNC
Press, 2000), 111-139.
101 Cadwallader Colden, History of the Five Indian Nations (New York: Bradford, 1727), I:xvi.
31
th
Authority among a free People, and whatever artificial Power or
Sovereignty any Man may have acquired, by the Laws and
Constitution of a Country, his real Power will be ever much greater
or less, in Proportion to the Esteem the People have of him.102
If the first was simply a conventional nod to disinterestedness, the second was a
desperate appeal to a society in which authority and public opinion were directly and
organically linked. Unlike the first edition, the second included lengthy descriptions of
the Iroquois' speech-making style. Speeches are important, because they directly create
public authority: “Where no single Person has a Power to compel, the Arts of
Persuasion alone must prevail .. their best Speakers distinguish themselves in their
publick Councils and Treaties with other Nations, and thereby gain the Esteem and
Applause of their Countrymen (the only Superiority which any one of them has over the
others).”103 In other words, Indian orality meant that legitimacy, discursive power, and
public authority were identical. In the history, the Indians are persistently depicted as
honest, true to their word, and not fond of speaking lightly; the Europeans, on the other
hand, are either dithering in their commitments or outright duplicitous. This reflects the
Indians' possession of a discursive mode with direct access to truth—and the
Europeans' lack of it.
It is true, as Warner has argued, that “the difficult emergence of a local print
discourse” in the province—that is, effectively of a print public sphere of any kind—can
be traced to the establishment of Zenger's Weekly Journal in 1733.104 It is even possible to
be more precise than that: it began on January 7, 1734, when William Bradford's New-
York Gazette, hitherto the only newspaper in the colony, printed a letter attacking a piece
in Zenger's paper. “Mr. Bradford,” it opened, “I have long sat still to see how far Party
Rage would carry Men, and fully resolved never to have meddled with Politicks; but the
last Weekly Journal published by Mrs Zenger ... has moved me to desire you'll insert the
following in your next Gazette.”105 This trope, in which an author described himself as
reluctant but forced by circumstances to take part in political debate, recurred in other
letters published around this time but disappeared thereafter—a suggestion that
something new had come into being. In the two months before this “forced”
intervention, the Gazette and the Journal did not yet share a common discursive space;
once Bradford deigned to take notice of Zenger's provocations, however, a debate could
begin in earnest.
Nonetheless, there had been antecedents to this in New York already. The early
Gazette provided what was most likely the first printed example: a squabble between
Governor Burnet of Massachusetts and the colonial assembly at Boston. Though this
had taken place outside the newspapers, Bradford made a point of printing the
102 Colden, History of the Five Indian Nations (London: Thomas Osborne, 1747), 2.
103 Colden, History (1747), 14.
104 Warner, “The Res Publica of Letters,” boundary 2 17, no. 1 (Spring 1990), 53.
105 New-York Gazette, January 7, 1733/4. See also New-York Gazette, February 18, 1733/4 and
March 4, 1733/4.
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th
arguments of both contenders, and the debate continued for three months.106 Issue no.
170 of the Gazette, printed in February 1729, became the first to contain original, locally-
written material of any significance: a weekly column with surprisingly lucid observations
on scientific achievements and social mores. It began by announcing that “there is hardly
any thing more natural to Mankind than an Inclination to Communicate those
Discoveries & Improvements which are the Fruit of severe and abstracted Speculation,”
and ended with an appeal to “Those Ingenious Gentlemen who are inclined to Try their
Talents in this Way of Writing” to send in their productions “in order to their being
made publick.” The readership of the “Fair Sex” was also solicited.107 The innocence of
these first years was marked by authors' active requests for correction and collaboration;
the press still conceived of itself as a means of diffusing knowledge, not promoting
political debate. Even politics were seen in these terms. One writer observed, “There is
no Science the Study of which is more useful & commendable than the Knowledge of
the true Interest of ones Country; and perhaps there is no Kind of Learning, more
abstruse & intricate ... and therefore none more generally neglected. Hence it is that we
every day find Men in Conversation contending warmly on some Point in Politicks,
which, although it may nearly concern them both, neither of them understand any more
than they do each other.”108
The focus on the neutral advancement of knowledge, of course, presupposed a
grounding consensus on the need for disinterestedness and public spirit. The nature of
this background was already beginning to be theorized. An essay published in June 1729
defended an unusually frank viewpoint appropriate to a factional and commercialized
society:
Every Passion and every View that Men have, is selfish in some
Degree; But when it does Good to the Publick in its Operation &
Consequence, it may be justly called disinterested in the usual Meaning
of that Word, so that when we call any Man disinterested, we should
intend no more by it than that the Turn of his Mind is towards the
Publick ... to serve his country is his private Pleasure, the Welfare of
Mankind is his Mistress and he does good to them by gratifying
himself. Disinterestedness in any other Sense than this, there is none.
...When the Passions of Men do good to others, it is called Virtue &
Publick Spirit; and when they do hurt to others, it is called
Selfishness[, etc.]. ... All these Discoveries and Complaints of the
Crookedness and Corruption of humane Nature, are made with no
malignant Intention to break the Bonds of Society, but they are made
to shew that as selfishness is the strongest Biass of Men, every Man
ought to be upon his Guard against another, that he become not the
Prey of another.109
106 See New-York Gazette, September-November 1728.

107 New-York Gazette, February 4, 1728/9.
108 New-York Gazette, June 2, 1729.
109 New-York Gazette, June 23, 1729.
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th
The argument is a strange one: never reaching the audacity of a Hobbes or a Mandeville,
it seems to take away with one hand what it dispenses with the other. The one
concession the author refuses to make—that even in the weaker sense, disinterestedness
is not a realistic ideal for human action—helps us to sketch out some limits and
implications of this conceptual universe, since the author goes far beyond the usual
republican platitudes. Disinterestedness exists—but it requires a deliberate identification
of the public's interest with one's own, in such a way that selfishness can be sublimated
into public spirit. Unlike less radical accounts, this author does not imagine
disinterestedness to negate selfishness completely. Hence his warning against becoming
“the Prey of another” is apt: behind any veil of public spirit there lurks a living
selfishness that can potentially reverse the turn of its mind, away from the public.
In the context of the political press as it developed after 1734, this concept carried a
significant implication. Because public spirit could not effectively be judged on the basis
of action, it became increasingly important to conceal selfishness by posing as someone
with the appropriate turn of mind—and likewise to ferret out participants who could not
do so. (Although it is doubtful that this particular essay played a decisive role, it seems
indubitable that most New Yorkers, with their reputation as hard-nosed businessmen,
would have privately agreed with its author). It is appropriate, therefore, that the
originators of the opposition press were men consummately skilled at precisely this kind
of performance—the lawyers William Smith and James Alexander. Some thirty years
later, lawyers would be attacked for having “recourse to unjustifiable Subterfuges, &c., to
carry whatever point they happen to be engaged in” and acquiring thereby “an Habit of
playing Booty”—that is to say, of playing dishonestly by playing to lose and dividing the
plunder in advance.110 The assumption was that lawyers could not be honest, because
they were always playing a role for their clients' benefit. In 1734, the young lawyer Daniel
Horsmanden complained, “'I am obliged even in a Bill of Equity to Charge my friend
whom I am persuaded of being a man of Sence & Honour with Epithets that are odious
to him & myself But you know they are words of Course in Such Cases, thrown in at the
will of the Clyent or in Complyance with the comon forms.”111 In short, the founders
of the Weekly Journal were well-prepared for their task, and James DeLancey's charge that
they had “played the Craftsman here and endeavored to stir the people to tumults and
seditions” could be taken literally: what they were doing was indeed playing the
Craftsman.112
It was the lawyers' need to perform disinterestedness that allowed a public sphere to
arise in the first place—they did not import strategic action into a space that had been
free of it. The universalizing language of public good and civic responsibility created a
terrain of contestation where these rhetorical prizes could be fought for by multiple
parties. The early writers of the Gazette never pretended to speak for a public, only for a
110 To the Freemen and Freeholders of the City and County of New-York (New York, 1768).
111 Daniel Horsmanden to Cadwallader Colden, Nov. 19, 1734, in Colden Papers [New-York
Historical Society Collections 1917-1923, 1934-1935], II:121-122.
112 James DeLancey to Sir John Heathcote, December 9, 1734; qtd. in Stanley N. Katz, Newcastle's
New York: Anglo-American Politics, 1732-1753 (Cambridge: Belknap, 1968), 112.
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single—if disinterested and virtuous—point of view. But the lawyers' strategy was
different: in the pages of the Weekly Journal, they represented a vigilant citizenry which
could use the liberty of the press to check government abuses.113
During the famous trial, this posture was dramatized in the figure of Zenger himself,
who was made to incarnate the public sphere. Since the Morrisite lawyers were not
publicly identified as the authors of the alleged libels, it was their printer Zenger who was
brought to account. But in his climactic courtroom speech, Andrew Hamilton
announced, “it is not the Cause of a poor Printer, nor of New-York alone, which you are
now trying ... It is the cause of liberty”—and thereby established a metonymic link
between the former and the latter.114 Even Zenger's own supposed “Narrative,” written
in the first person, was the work of Alexander. Conducting operations against Governor
Cosby in London, Lewis Morris wrote to Alexander that “the case of Francklin, the
printer of the [C]rafts man here, is Parralel with Zengers: his printing house is in Our
neighbourhood at convent Garden, but the man himself is a prisoner ... he like Zenger
prints on, and leaves those concerned to make the best on it.”115 Zenger's physical
presence at the press, properly speaking, was irrelevant to his ideological function.
The claims of a single party to represent the opinions and interests of the entire
public could not go unchallenged. Before 1733, Bradford's Gazette had been able to
implicitly assume this role as a spokesperson—but now, when the Journal explicitly
claimed it, it became necessary to develop a vocabulary of demystification. A pamphlet
published in 1732 declaimed on civic virtue and identified two of the most vicious
enemies, “equally mischievous and contemptible”: the man who supports the
government despite all its abuses and “the pretended Patriot, who has no other Motive
for assuming that Name, than private Disappointments.”116 The strategy pursued by the
“Gazetteers” was to identify the “Journalists” with the latter. A letter published in
February 1734 claimed to unmask the Journal's pretensions of speaking for the public:
'These, says Zenger (alluding I suppose to the above cited libelous

Paragraph) are the Sentiments of many of this City and Province.' I know not
what they were, but they appear much otherwise so, and I believe few
in the End will thank Zenger for publishing these supposed
Sentiments of theirs, when the Cobweb Disguise comes to be pull'd
off, and Things appear in their natural Colours and true Light; 'Twas
113 On the Weekly Journal itself, see, e.g., Clark, The Public Prints, 165-184; Williams, The Significance
of the Printed Word, 118-122; Vincent Buranelli, “Peter Zenger's Editor,” American Quarterly 7,
no. 2 (Summer 1955), 174-181. The best contextualization of the events surrounding the case
is Katz, Newcastle's New York, and Eben Moglen, “Considering Zenger: Partisan Politics and the
Legal Profession in Colonial New York,” Columbia Law Review 94, no. 5 (June 1994), 1495-1524.
114 [James Alexander], Brief Narrative of the Case and Tryal of John Peter Zenger (New York: Zenger,
1736), 39.
115 Morris to Alexander, February 24, 1734/5, in Katz, “A New York Mission to England: The
London Letters of Lewis Morris to James Alexander, 1735 to 1736,” William and Mary Quarterly
28, no. 3 (July 1971), 457.
116 “Andrew Fletcher,” Vincit amor patriae [no title], (New York, 1732).
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never known but a deceived Populace, were as justly ready to turn
against their Deceivers, as they were impudently drawn in to be led
by them.117
Two issues later, another writer went even further: it was Zenger himself who was “misled
by one or two Designing men, out of a View of Self-Interest, and to gratify a private
Resentment.”118 By October 1734, this rhetorical posture was fully developed. One letter
summed up: “The Governor's Interest is inseparably link'd with that of the Province in
general ... There is no Interest in the Province Opposite to the Governour's but that of
Zenger's Correspondents.”119 The only possible response to a claim by one's opponent to
represent the public was to make the same claim.
The Morrisites, of course, were not far behind. On December 10, 1733, Zenger
reprinted Cato's Letters, no. 38, which pointed out that “One Man, or a few Men, have
often pretended the Publick and meant themselves.”120 A week later, Zenger's paper was
already characterizing Bradford as a printer who “is not suffered to insert anything but
what his superiors approve of, under pain of losing 50 per annum salary and the title of
King's Printer.”121 The article that had prompted Bradford's response in October 1734
drove this point further, though more carefully. Instead of simply charging Bradford
with shilling for the governor, it pointed out the disjunction between the Gazette's
mission as a paper of record and its actual partisan behavior: “With what Contempt and
Abuse are the Majority of the Magistrates of this City treated by this Writer in the
Government Paper! ... It is supposed the Government Paper is well viewed before it is
suffered to be made publick, and I would fain know what these Gentlemen have done to
deserve this Treatment, and to be represented as Enemies to the Government, because
they are not Creatures of a Governour.”122
This push-and-pull process, with each side in turn claiming the public's mantle,
drove political discourse for the remainder of the eighteenth century. Indeed, a dim
realization was already beginning to take hold. In March of 1734, Zenger published an
elaborate allegorical letter, where the Journal was depicted as a whale and the Gazette as a
ship. The men on shipboard attempted to distract the whale with printed attacks. The
allegory suggested that the whale should ignore the attacks and pursue its proper
mission—viz., swallowing up the ship and all the men aboard. A writer in the Gazette
objected: “So then we plainly see what Point is here to be gain'd: The Journal is to
swallow up the Gazette, and Zenger alone to enjoy the Liberty of the Press: Then the
Journalists are to meet with Rubs instead of Praise; for the People of this Province are not
to be deluded with a Tale of a Tub.”123 In other words, the terms of the contest precluded
the possibility of its resolution—if one party ever conclusively succeeded in driving the

119 New-York Gazette, October 31, 1734.
120 New-York Weekly Journal, December 10, 1733.
121 New-York Weekly Journal, December 17, 1733; qtd. in Warner, “The Res Publica of Letters.”
122 New-York Weekly Journal, October 21, 1734.
123 New-York Weekly Journal, March 4, 1733/4; New-York Gazette, March 11, 1733/4.
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other out of the public sphere, the result would be not disinterestedness but tyranny. The
public debate could not but perpetuate in practice the factionalism it denied in theory.
By the early 1750s, printed political discourse had taken firm root in New York, and
the self-reproducing nature of factional discourse stood out in even starker outline.
When the Morrisites' lineal heirs (William Livingston and John Morin Scott, lawyers who
had clerked with Smith and Alexander, as well as Smith's son, William Smith, Jr.) became
active in the public sphere in support of a broadly Whig-Presbyterian position, they ran
up once more against the limits of legitimation. The venue they created for their
exertions was a Craftsman-like periodical, the Independent Reflector, which heaped scorn on
the Anglicans and promoted a sort of enlightened, rationalistic secularism. It inveighed
against fanatical partisanship in patriotic disguise:
From the Moment that Men give themselves wholly up to a Party,

they abandon their Reason, and are held Captive by their Passions...
Tho' perhaps they originally embark'd in the Cause with a View to
the public Welfare; the calm Deliberations of Reason are
imperceptibly fermented into Passion; and their Zeal for the
common Good, gradually extinguished by the predominating Fervor
of Faction ... the political Visionary miscalls his Party-Rage the
Perfection of Patriotism; and curses the rational Lover of his
Country, for his unseasonable tepidity.124
In reality, the Reflector was hardly any more temperate in its attacks than were its Anglican
enemies, the implicit targets of this essay. But this argument displays a nuanced
understanding of the institutional dynamics of public-sphere factionalism. The author
(Livingston) observes, “There are some interprizing Geniuses, who love to fish in
troubled Waters; and will themselves disturb the Fountain, to acquire a Reputation under
Pretence of re-clarifying it to its pristine Purity.”125 The relationship between the
performance of disinterestedness and the public sphere was becoming more
complicated; the Whigs' strategy was to emphasize their own commitment to discursive
norms (not merely disinterestedness as such) and their opponents' undermining influence
on them.
What Livingston and his comrades discovered was that this appeal was just as
ineffective at securing their legitimacy as its earlier version had been. When they argued
from a rationalistic position, they were attacked with polemics—and their opponents
deliberately closed off the channels of response. Livingston summed up the situation
thus: “As the faction who had constantly opposed me, made it their business to
discourage [Smith], he found it impossible to contend in private pamphlets, against a
periodical paper, in which his adversaries every week circulated their jargon, at little or no
expense. Thus therefore stood the case at present: I could not answer the Mercury in the
Reflector, without defeating the design of the latter, and transforming it into a paper,
124 The Independent Reflector, February 22, 1753.

125 The Independent Reflector, February 22, 1753.
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perfectly polemic.”126 Since they could not respond in kind without endangering their
public-sphere strategy, they established the Occasional Reverberator, which was devoted
rather more to invective than to intellectual disquisitions. In its first issue, it attacked
Hugh Gaine, the printer of the Anglican New-York Mercury: “There are two Sorts of
Writers equally unanswerable,--a Man of Sense whose Writings contain the clearest
Truth, and Conviction, and a Fool whose Productions are entirely void of both. Among
the latter I rank all those whose inimitable Performances have of late so singularly
adorned your Papers, and sufficiently demonstrate, that their Authors are neither able
nor willing to investigate the Truth.” It accused Gaine of being “attached to your private
Interest to so great a Degree, as to have set up your Press for that Purpose only.”127
But Gaine's argument, which the Reverberator piece had been a response to, was not
so easily answerable. It was addressed “To the Publick,” and characterized the Whigs as
“in Combination to promote the Designs of this Paper [the Reflector], whom we can't
believe to have gone the Lengths of these now under Consideration, towards Infidelity
and Prophaneness.”128 While the Presbyterians strove to delegitimize their opponents as
insufficiently dedicated to discursive norms like neutrality and openness, the Anglicans
saw it as their moral duty to oppose the conspiratorial secularization of society. Thus
formal criticisms like the former could not decisively counter content-based attacks like
the latter; even on a purely discursive level the search for legitimacy was irresolvable. In
the end, the Presbyterians' printer bowed to political pressure from the governor and
refused to continue publishing either the Reflector or the Reverberator. In his preface to the
book-format collection of Reflector essays, Livingston railed bitterly against “the Arts and
Influence of his Adversaries,” blaming them even for the abundance of typographical
errors in the text.129 The political controversy at stake—the religious affiliation of the
proposed King's College—ended in an Anglican victory, and the Presbyterians achieved
only partial vindication by undermining public support for the school.130
Of course, political discourse was not the only purpose of the public sphere: it also
served to facilitate a more abstract aesthetic and moral dialogue, as Habermas points
out.131 Even there, however, policing and the search for legitimacy infected and
encumbered the conversation. Before a writer could make a moral claim—or even a
substantive, in principle non-partisan policy proposal—he needed to establish his ethos, in
its Aristotelian sense of the right to command a hearing. It was this point that was always
the weakest: the overriding concern was to discredit as well as refute the textual persona.
Warner's account of Benjamin Franklin as a paradigmatic example of print personhood
conceals the fact that the transition between the concrete and the abstract identity was
126 William Livingston, Independent Reflector [preface to the collected edition] (New York, 1753), 9.
127 The Occasional Reverberator, September 7, 1753.
128 New-York Mercury, September 3, 1753.
129 Livingston, Independent Reflector, [i]. On the controversy in general, see Williams, The Significance
of the Printed Word, 159-262, and Milton Klein's introduction to The Independent Reflector
(Cambridge: Belknap, 1963).
130 See David Humphrey, From King's College to Columbia (New York: Columbia University Press,
1976), 5-66.
131 Habermas, Structural Transformation, 27-56.
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rarely so smooth.132 The gap between the two became, once more, the properly
irresolvable site of contestation.
In 1752, the young Anglican divine William Smith (no relation to the others),
recently arrived from Britain, published a pamphlet entitled Some Thoughts on Education. It
proposed that the new college be situated in New York City, not in the idyllic country
estate some other writers had suggested. Smith's Anglicanism certainly carried political
implications, but the debate over location was not divided along partisan lines; it was
largely a question of who had territorial interests where. Nevertheless, the response was
singularly savage. On December 4th, a letter signed “Goose Adrianse” appeared in the
New-York Mercury—which printed it despite the fact that it was actually written by
William Smith, Jr. Its style was panegyric:
In a Word, Sir, the Subject of your Pamphlet, well deserved the great
Labour and Pains you have bestowed upon it; and it must be
confessed, that you have written in a Manner equal to its
Importance.--You are therefore, justly entitled to the universal
Praises of the Province; and it is to be hoped, that the Legislature ...
for whose Information and Assistance, your performance was more
especially designed, will not only render you the Thanks of the
Public, and raise a Statue to your Memory, but advance you from the
humble State of a Domestic Instructor of Boys and Girls, to the
supreme Government of the future College, and to the more
enlarged and manly Employment of teaching Men.133
Of course, the real purpose of the letter was not to praise Smith but to bury him.
Without responding to any of the concrete points raised in the essay, “Goose Adrianse”
indirectly leveled several attacks on Smith's very ability to take part in the public sphere
of print. His social status was too low; he was acting from an interested motive,
appointment to the college presidency; he was too uncultured, his prose replete with
“Scoticisms”; he had plagiarized James Thomson in his prefatory verses; and, perhaps
the most devastating of all, he had published a self-adulatory letter under another
pseudonym “to awaken a suitable Attention to it in the Public.”134
One of “Adrianse”'s objectives was obviously to use Smith' lack of experience with
public-sphere discourse to expose him to ridicule, making him hoist on his own petard.
Smith eagerly took the bait. His response began with an announcement that he was
unsure whether to take the letter as sincere or facetious, but decided to read it “like a
Witch's Prayer, backwards.” It only went downhill from there. Smith attempted to
compensate for the deficiencies of his ethos by (apparently) inventing an “old Gentleman,
of whose sage Councils I have often availed myself ... a very good Taylor, a very well-
bred Man, and a very good Critic and Scholar.” Through the interposition of this
132 Warner, Letters of the Republic, 73-96.

133 New-York Mercury, December 4, 1752.
134 New-York Mercury, December 4, 1752; for the letter in question, see New-York Gazette, or Weekly
Post-Boy, October 30, 1752, and see also New-York Mercury, November 6, 1752.
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persona, Smith delivered a flood of personal invective against “Adrianse” (although it is
unclear whether Smith actually knew his real identity). Though his tone was self-
congratulatory, he lacked any means of concretely proving his legitimacy.135
In the next issue of the Mercury, the trap snapped shut. Smith, Jr., writing this time
as “Goose Adrianse, Jr.,” shed the mask of praise and pointed out that Smith had never
responded to any of the specific charges his “father” had made. He mocked Smith's
“Choice of the Taylor for your Companion,” and turned the strategy around: the
reliance on a persona implied “every Thing good in the Pamphlet, to be owing to those
Gentlemen, who did you the Honour to peruse and correct it.” “Adrianse, Jr.” even
claimed superiority because he used his (fake) real name, unlike Smith, who used a
pseudonym and could therefore “have the Advantage of spitting out Slander, without being
detected.” The letter was deliberately written with the condescension of an older man
disciplining an upstart, insolent youth: “my Father ... intended nothing more than to
restrain your Vanity ... Had you been silent under the Rod of his Correction, you would
have approved yourself, to the prudent Part of the World.”136 Smith left New York at
the first opportunity, and the Mercury returned to its familiar attacks on Livingston's
party. The incident demonstrates that the ultimate outcome of a debate about
legitimation could only be the tyrannical exclusion of one participant; it was irrelevant
whether “Adrianse”'s charges had been true, only that they took the logic of the public
sphere—the ferreting out of possible self-interest—to its inevitable conclusion.
Another incident demonstrates the lengths to which this could go. In December
1767, the New-York Gazette, or Weekly Post-Boy's column “The Mirror” published a letter
signed “Dramaticus.” “Dramaticus” was incautious enough to argue that the theater,
rather than being a pernicious source of temptation for good Christians, could serve for
both “Instruction and Amusement.” The author was aware that this was an “unpopular
doctrine” subject to “the virulence of mistaken zeal.” Nonetheless, he made a good-faith
attempt to defend his point, suggesting that exposure to dramatic scenes of evil would
push the soul towards more morally praiseworthy conduct. Indeed, he even claimed that
“when we compare the knowledge gained at college, with what may be acquired at the
Play-house in point of utility, the latter certainly merits the preference.”137 In actuality,
the argument was somewhat academic, since by that point New York had had theatrical
establishments of some sort for several decades, and the occasion for the piece was
simply the opening of one more such venue.
Dramaticus could not have predicted the scale of the resulting outcry. In the next
two months, no fewer than nine pieces appeared in the New York press attacking his
position. One letter, supposedly written by a “tradesman,” complained of the expense
attendant upon theatrical performances; another writer posed as “A Convert of
Dramaticus” and delivered a biting satirical indictment against his irreligion; even “David
de Speculo,” the author of the Mirror, denounced the playhouse. A particularly
pedantic—perhaps satirical—attack, signed “Orthographus Period,” pointed out
135 New-York Gazette, or Weekly Post-Boy, December 25, 1752.

136 New-York Mercury, January 1, 1753.
137 New-York Gazette, or Weekly Post-Boy, December 3, 1767.
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Dramaticus's grammatical infelicities. Dramaticus himself (his identity is unknown) never
responded, and not a single article appeared in his defense.138
In February 1768, the New-York Journal printed a black-bordered announcement (a
traditional way of marking the death of a public figure) atop “A Funeral Elogium on the
Death of Dramaticus” at the age of twenty-two. Whether the person who had borne that
pseudonym had actually died is unclear. What is apparent, however, is that the
accompanying article, which took up most of the front page, was not a traditional elegy.
Dramaticus was painted as a dissolute lover of pleasure who, “what with gallanting the
ladies to the Plays, and the growth of his own extravagant fondness for them ... spent
near two hundred pounds extraordinary, and became so indolent and fond of his
pleasures that he forgot near everything that he had learned at college.” It was this
fondness that led to his demise:
He threw his thoughts into a well-compacted system, which he

published under the Mirror, number IV, in Parker's Gazette ... This
brings us to the melancholy scene of his death ... Soon after he had
published his favorite scheme beforementioned, there happening to
be some people who did not so well approve of it; he met with some
attacks on that score—an unmerciful, cruel band of scribblers fall
foul of him all at once.--I think their names were Palaemon,
Philopatrius, Philander, and honest David De Speculo—they all played
different weapons too, and plied him so close, that the unfortunate
young man was beat off his ground, retired in the utmost confusion,
went home and died of despair.139
On his deathbed, poor Dramaticus was portrayed as repenting of ever having discovered
the theater. In other words, the piece was both a celebration of a successful act of
public-sphere mob justice and the final nail in the coffin of his argument. Even if, at this
point, Dramaticus would have had the nerve to respond, it would have been fruitless:
once judged illegitimate by the public sphere, an argument was not salvageable on its
terms. The martial metaphor, far more than Habermas's coffee-house, accurately
represented the functioning of this nominally universalistic and rational discursive space.
Once the rules of legitimacy became “weapons,” they could no longer act as the neutral
outside to guarantee the stability of the discursive structure.
As Dramaticus was being rhetorically disemboweled, another question came to the
forefront in the New York political scene: the forthcoming election to the colonial
assembly, scheduled for March 10, 1768. Livingston's friend, legal associate, and
comrade-in-arms John Morin Scott was nominated for New York City's seat. His
opponents were determined to prevent him from winning. They began a mudslinging
campaign—not targeted at the candidate personally, but rather at the authority of
138 New-York Gazette, or Weekly Post-Boy, February 1, 1768, December 31, 1767, December 24, 1767,
January 4, 1768; see also New-York Journal, December 24, 1767, December 31, 1767, January 14,
1767, and New-York Gazette, or Weekly Post-Boy, December 17, 1767.
139 New-York Journal, February 18, 1768.
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lawyers to speak for the colony and serve in its legislature. (Scott's opponent, Captain
James DeLancey, ran as a merchant). At first, the effort was largely a matter of shouted
slogans. On February 15, however, a series of queries appeared in the Gazette in defense
of the legal profession. It was then that the debate really began.140
The Querist opened by describing the scene at a small inn in the West Ward, where
votes were being bought and sold and anti-lawyer slogans rang out. He adduced
seventeen rhetorical questions to try to remedy this defect in the democratic process, by
using rational discourse to convince the voters to resist the propaganda. Most of the
queries were conventional: they defended lawyers in general terms as public-spirited and
educated men, and the writer concluded with a demand that “all party spirit and private
resentment be laid aside.” Queries 6, 7, and 10, on the other hand, adopted a novel
strategy. They suggested that the role of the lawyers in the opposition to the 1765 Stamp
Act—still a burning political issue—constituted proof enough of their ability to serve the
public, especially by “writing in defence of the liberties of the people.” The lawyers had
written petitions, stopped business, and had taken part in the Stamp Act Congress.141
What set this move apart was its appeal to a common ground beyond the abstract terrain
of disinterestedness: the concrete historical experience of the Stamp Act, which
everyone could agree was a bad thing.
The proof of this particular pudding, however, was elusive. A number of responses
to the Queries soon appeared, and each took issue with the author's interpretation of the
events surrounding the Act. In one foray, by “G.,” the response to Query 10 alone took
up four out of ten columns. “G.” accused the lawyers of stopping business only because
it was impossible for them not to; in fact, they could have unanimously declared the act
illegal and thereby destroyed it, but they did not do so, which meant that “the natural
Conclusion that forced itself upon every one was, That in the Opinion of these
Gentlemen, the Stamp-Act might legally be enforced.” By stopping business, they had
inadvertently upheld the Act.142 Another attack, by “John A. Nokes,” argued differently.
The lawyers had opposed the Stamp Act because “Their Craft was in Danger”: it would
have reduced the number of lawsuits, so the opposition was in their own self-interest—
“They did their Duty, and were paid for it.”143 “Philanthropos” took yet a third path: he
declared that “not one of their whole Body (in this Province) employed even his Pen in
Defence of its Rights,” and accused Scott himself of having said that “he would
undertake to prove, that those Resolves [of the Virginia Assembly against the act] were
140 See Tully, Forming American Politics, 173-177. This election was once occasion for a heated
historical debate. See Roger Champagne, “Family Politics Versus Constitutional Principles: The
New York Assembly Elections of 1768 and 1769,” William and Mary Quarterly 20, no. 1
(January 1963), 57-79, and Bernard Friedman, "The New York Assembly Elections of 1768
and 1769: The Disruption of Family Politics," New York History 46 (1965), 3-24. See also
Bonomi, “Political Patterns in Colonial New York City: The General Assembly Election of
1768,” Political Science Quarterly 81, no. 3 (September 1966), 432-447.
141 New-York Gazette, or Weekly Post-Boy, February 15, 1768.
142 To the Freeholders and Freemen of the City and County of New-York (New York, 1768). [Evans
#11088, to distinguish this from several other similarly-named broadsides].
143 To the Freemen and Freeholders of the City and County of New-York (New York, 1768) [Evans
#11090].
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not far short of high Treason.” In other words, the lawyers had deliberately supported
the act “from sinister motives” in order to advance their own interests.144 Other
polemicists ranged themselves behind one or another of these positions—but nowhere
was it acknowledged that they were, in fact, mutually contradictory. Under the
legitimacy-seeking eye of the public sphere, even a proof supposedly supplied by factual
and vividly remembered historical evidence dissolved into a regress of politically-infused
representations. Responding, the Querist fumed: “What a shameless Attack upon the
Understanding, the Sense, the Conviction of the Public, thus roundly to assert, against
the most irrefragable Evidence! against Evidence contained in the public News Papers,
which have been read by all, and are still in the Hands of most of our Inhabitants.”145 In
vain: there was no Stamp Act outside the newspaper.
In the absence of a concrete and universally accepted standard of proof, the press
reverted to its most familiar model: factionalism, expressed in an unusually brazen form
as a conflict between lawyers and merchants. The controversy took on an ironic
vocabulary of religious struggle. A satirical broadside appeared, written by “a Believer in
Politicks” and entitled “A Political Creed for the Day.” “A Better Creed than the Last”
was posted in response. Another broadside purported to be “The Voter's New
Catechism.” A “dialogue,” only half in jest, portrayed the lawyer as “old friends and
neighbours” with the Devil.146 Once again, however, the debate took place on a different
level than before: the combatants did not each, individually, fight over their
representation of disinterestedness. Rather, what was in question was the ability of either
occupational group to speak for the general interest of the province, a problematic
which theoretically could allow legitimate factional identities to form.
In principle, a debate between such identities could have had a resolution: either
merchants were unambiguously best fitted to represent the city or the candidate's
occupation was not all that important in itself (Scott's favored position). But because of
the constitutive premises of New York's local print discourse, each side focused first and
foremost on denying the other access to legitimacy. From the Scott point of view,
DeLancey could not legitimately claim to stand for the interests of trade because he
wasn't actually a merchant. As “A Believer in Politicks” put it, “I believe that none but
Merchants are proper to represent this City, and that every Cockfighter, Horseracer and
Whoremonger, is in the Politicks of the present Day a Merchant, that is to say, is not a
Lawyer, and that though this is a Mystery incomprehensible, it is nevertheless to be
believed on Pain of political Damnation.”147 The DeLanceys were broader and more
persistent. A lawyer could not represent the province because lawyers only served their
own interests and pursued them by lies and pretense. This meant that any printed
argument made by a supporter of lawyers was automatically suspect: “G.” accused the
Querist of writing “with the Artfulness of a Lawyer,” while the “Believer”'s counterpart was
144 New-York Journal, February 25, 1768.

145 To the Freeholders and Freemen of the City and County of New-York (New York, 1768) [Evans #
41892].
146 A Political Creed for the Day (New York, 1768); A Better Creed than the Last (New York, 1768); The
Voter's New Catechism (New York, 1768); A Portrait (New York, 1768).
147 A Political Creed for the Day.
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equally sure that he was one.148 Each side, in other words, depended on the other for its
self-definition: it could draw real legitimacy only from the other's lack of it. The
merchant's claims only looked coherent as long as there was a lawyer to compare them
to, while the lawyer could never provide a positive argument (since everyone knew
lawyers were liars) except in a polemical context. The open factionalism of the 1768
election implied a suspension by mutual consent of the normal restrictions on party
invective, but even this annulment of the normative structure of discourse brought no
relief from the self-reinforcing search for legitimacy.
In contexts which were not charged with enormous political moment—for instance,
the election of 1768—the partisan bickering that characterized the New York public
sphere was not perceived as a direct and immediate threat. After the Zenger Case,
attempts by contending parties to interfere with the workings of the press were rare and
not distinguished for their effectiveness. The decade of the Revolution, with its
accompanying politicization of society, brought dramatic changes to this structure.
Printers were no longer as insulated from the effects of their political choices as they had
been in the past, and the result reflected a shift in underlying values. Throughout the
earlier period, printers had persistently articulated a position in defense of the liberty of
the press and the concomitant obligation to fairly reflect the positions of all sides. Here
Zenger made his stand, and even Bradford's Gazette—as the complaint about the Journal
swallowing up the Gazette suggests—accepted this rhetorical formula. What is important
is not that these presuppositions were frequently violated in practice, but that the basic
idea of a free and impartial press went unchallenged. Printers who violated this principle
directly (such as James Parker, who was forced to stop printing the Independent Reflector,
or Hugh Gaine, who never allowed Livingston access to his press) either made excuses
or skirted the issue.149
With the coming of the Revolution, a counter-discourse arose that for the first time
provided a substantive challenge to printers' neutrality. In a poem published in 1783, the
Patriot Philip Freneau mounted a satirical attack on the printer Hugh Gaine, who was a
Loyalist but had started two separate newspapers—one supporting the Patriots and one
the Loyalists:
I always adhere to the sword that is longest

And stick to the party that's like to be strongest...
I handled my cane, and I looked at my hat,
And cryed--“God have mercy on armies like that!”
I took up my bottle, disdaining to stay,
And said—“Here's a health to the Vicar of Bray,”
And cocked up my beaver, and—strutted away.150
148 To the Freeholders and Freemen of the City and County of New-York [Evans #11088]; A Better Creed
than the Last.
149 See Williams, Significance of the Printed Word, 233-262.
150 Philip Freneau, “Hugh Gaine's Life,” in The Poems of Philip Freneau (Princeton: University
Library, 1903), Fred Lewis Pattee, ed., II:208. See Charles R. Hildeburn, Sketches of Printers and
Printing in Colonial New York (New York: Dodd, Mead, and Co., 1895), 75ff.
44
th
The Vicar of Bray was a well-established cultural archetype for someone who changed
his convictions for personal gain. “For what have I done, when we come to consider,”
James Rivington (another Loyalist printer) was made to ask in another poem, “but sold
my commodities to the highest bidder?”151 Neutrality, Freneau implied, was nothing
more than the willingness to support whichever side happened to be convenient at any
given moment. In other words, it was simply weakness and could not serve as a
grounding for a claim to legitimacy.
Yet Loyalists continued to make reference to this value. In 1775, Rivington was
forced to apologize for printing Loyalist pamphlets. He assured “the Public” that
“Nothing which I have ever done, has proceeded from any Sentiments in the least
unfriendly to the Liberties of this continent, but altogether from the Ideas I entertained
152
of the Liberty of the Press, and of my duty as a Printer.” The pamphleteer Thomas
Bradbury Chandler charged the Continental Congress with hypocritically professing a
belief in liberty of the press while “The Sons of Liberty ... are perpetually running
counter to the sentiments of the Congress, in striving to intimidate writers, and printers,
153
and readers, and speakers, and thinkers, on the side of the government.” Another
writer, Samuel Seabury, attacked Alexander Hamilton for objecting to his polemics
against the Continental Congress: “It has ever been esteemed the privilege of
Englishmen ... to point out the errors that are committed in the administration of the
government, and to censure without feat the conduct of all persons in public stations ...
Blush then at your own effrontery, in endeavouring to intimidate your countrymen from
exercising this Right with regard to the Congress.”154 Thus, paradoxically, the Loyalists
assumed the mantle of John Peter Zenger.
This was no longer a going concern. Patriot writers challenged the very notion that
the Loyalists should be argued with. Philip Livingston began his pamphlet The Other
Side of the Question with the following declaration:
I answer this pamphlet [Chandler's Friendly Address to All

Reasonable Americans], for the very purpose which alone the
pamphlet itself is likely to effect,--to encourage the paper
manufactory ... I write, because from the futility of the author's
151 Freneau, “Rivington's Reflections,” in Poems, II:190.

152 James Rivington, To the Publick (New York: 1775). On New York Loyalism in general, see Philip
Ranlet, The New York Loyalists (University Press of America, 2002). On Loyalist ideology in
New York, especially the role of the freedom of the press, see Janice Potter, The Liberty We
Seek: Loyalist Ideology in Colonial New York and Massachusetts (Cambridge: Harvard University
Press, 1983); Potter and Robert M. Calhoon, “The Character and Coherence of the Loyalist
Press,” in The Press and the American Revolution (Worcester: AAS, 1980), Bailyn and Hench, eds.,
229-272; and William Allen Benton, Whig-Loyalism: An Aspect of Political Ideology in the American
Revolutionary Era (Cranbury: Fairleigh Dickinson, 1969).
153 Thomas Bradbury Chandler, What Think ye of Congress Now? (New York: Rivington, 1775), 3-4.
154 Samuel Seabury, A View of the Controversy between Great-Britain and her Colonies (New York:
Rivington, 1774), 6.
45
th
reasoning, no body else may think it worth the trouble. And if so,
why then he would very naturally conclude that he had written an
excellent unanswerable treatise, which conclusion might inflate the
poor creature's vanity, in such manner as to tempt him into other
imprudencies of the same kind. The public thanks therefore will be
my due, for removing, or at least preventing a common nusance.155
This flood of contempt, in effect, denied the very possibility of debate. Mocking this
method of argument, one satirical pamphlet announced its author's desire to “exhibit a
plain state of the facts to the public, and thereby at once stop the mouths of the d—d
Tories.”156 Alexander Hamilton went even further than Livingston. Declaiming on the
Patriots' position, he asked, “What need is there of a multiplicity of arguments, or a long
chain of reasoning to inculcate these luminous principles? They speak the plainest
language to every man of common sense; and must carry conviction where the mental
eye is not bedimmed, by the mist of prejudice, partiality, ambition, or avarice.”
Moreover, “When the first principles of civil society are violated ... the common forms
of natural law are not to be regarded. Men may then betake themselves to the law of
nature.”157 What these two arguments have in common is an appeal to natural law as a
standard of judgment outside of any discursive framework; discourse and traditional
institutional constraints would only hamper access to natural law under the conditions of
the state of exception. The Patriots no longer needed the public sphere at all.
In 1775, an ominous Letter warned the Rev. Dr. Auchmuty, a prominent Loyalist,
that if he did not “make some suitable publick Attonement for past Misconduct,” his
church and his own public standing would suffer.158 The Patriots soon passed from
veiled threats to action. James Rivington's press was destroyed in late 1775 by a band of
Sons of Liberty led by Isaac Sears. In 1776, a similar fate befell the Loyalist printer
Samuel Loudon.159 Although upper-class Patriots dissociated themselves from such rash
actions, even the (sometimes violent) extraction of anyone professing neutrality soon
became official government policy. In November 1776, the Committee for Detecting
and Defeating Conspiracies charged them with having “either with artful & wicked
designs or from interested motives shrunk from the duties they owe their country” and
resolved that they be banished from the province. Arrests of admitted Loyalists had
begun even earlier.160 What was taking place was the forcible purging of New York's
public sphere from any unwelcome deviation from the Patriot line (although this process
was interrupted after the British retook the city). Once direct access to natural law—
155 Philip Livingston, The Other Side of the Question: or, a Defense of the Liberties of British America
(New York : Rivington, 1774) 3-4.
156 The Triumph of the Whigs:or, T'other Congress Convened (New York: Rivington, 1775), 4.
157 Alexander Hamilton, The Farmer Refuted (New York: Rivington, 1775), 15, 52. See Philip Gould,
“Wit and Politics in Revolutionary America: The Case of Samuel Seabury and Alexander
Hamilton,” Eighteenth-Century Studies 41, no. 3 (2008), 383-403.
158 A Letter to the Rev. Dr. Auchmuty (New York, 1775), 8.
159 Hildeburn, Sketches of Printers and Printing in Colonial New York, 124-155.
160 Minutes of the Committee and First Commission for Detecting and Defeating Conspiracies in the State of New York (N-YHS Collections 1924), 12-13.
46
th
revealed through adherence to a set of specific beliefs—became the test of legitimacy, no
ideological disagreement could be sustained any longer. In fact, the Patriots had achieved
what Bradford's Gazette had only warned about: the resolution of the problem of self-
reinforcing debate by the abolition of the liberty of the press.
What Habermas was to rediscover, two centuries later, as the sign of a constitutional
norm established by act of revolutionary public opinion in reality represented quite the
opposite—the substitution of an arbitrarily reified, pseudo-consensual “public opinion”
for the discursive dynamics of the public sphere. On Habermas's own terms, there can
be no legitimacy to this kind of norm. But the deeper problem is that there could have
been no legitimacy even if the public sphere had been left in place. Because of the self-
perpetuating nature of the discourse of legitimacy, it could never have come to a
resolution adequate enough to be taken as definitive; no way of breaking through the
limits of performance could have emerged, even in a revolutionary context. A kind of
“decisionism”—Habermas's bête noire, a legal theory which recognizes no normative
requirement for legitimation outside of formal institutional procedures and holds that
any decision is better than no decision—was therefore inevitable: to resolve the
fundamental uncertainty about legitimation that underlay the public sphere required
161
nothing less than the suspension of the public sphere itself.
Fruitless debate and tyrannical decision leave little to choose between them. There
is, however, an alternative: the informal, partisan conception of the public sphere and the
“all confusedly” of Androboros. The vibrant, agonistic politics that New Yorkers
embraced required neither a permanent condition of performance nor a permanent
promise of legitimacy, and was not undermined by the resulting aporia. A pose was
adopted as a tactical and provisional measure; rules of legitimacy could be weapons, but
not norms. The interminability of debate was a positive, not a negative: conclusions
drawn reflected the temporary local successes of one party and could be just as
legitimately overthrown by the other. Even the decisionistic intervention of the state
authorities, in this context, offered the promise of a subsequent rematch. Conversation,
in short, redeems the failures of discourse.
161 See Habermas, Legitimation Crisis, 97-102ff. There are interesting parallels here with Giorgio
Agamben, State of Exception (Chicago: University of Chicago Press, 2003).
47
IV
Conclusion: From Discourse to Conversation

The experience of the public sphere in eighteenth-century New York suggests
additional problems with the Habermasian conception, beyond those elaborated in Part
II. It is not simply that the nature of the print medium undermines his model of
intentionality. Even if a normative framework is firmly and consensually established for
the medium—the conjunction of the two being Habermas's traditional definition of the
public sphere—the result does not successfully evade the problem of mediated
communication. The public sphere preserves its ideals, but cannot find a means of
making them effective. This leaves Habermas impaled on the horns of a dilemma. One
option is to maintain the normative framework—and thereby ensure the impossibility
either of its successful realization or of any kind of consensus. (Paradoxically, the mode
of discourse in the public sphere in this context is inevitably strategic and never
communicative, since the policing of disinterest is itself always interested). The other
option is to force resolution and consensus by adopting a model or strategy of
legitimation that does not require it to be established discursively. Of course, the latter
move would violate Habermas's most significant premises by defeating the very purpose
of the public sphere—and moreover, on his own terms, would never actually be
legitimate. This dilemma is of the same kind as the one described in Part II, where the
parties involved in a discussion cannot root out systematically distorted communication
without violating their own normative maxims. The former, in fact, proceeds lineally
from the latter. The decisionistic rupture of the public-sphere dialogue is the result of the
fact that, in occupying the position of psychoanalyst, the public sphere discovers that it is
unable to reliably detect distortion. The first betrayal necessitates the second.
From Habermas's point of view, what appears unacceptable about the first horn of
each of these dilemmas—maintaining communication in spite of a permanent state of
uncertainty about its communicative or strategic nature—is its inability to achieve a
desired end, viz., legitimate and disinterested consensus. His concept of discourse, and of
the public sphere, is thoroughly teleological: despite the profound intersubjectivity he
wants them to embody, they can really exist only as means.162 This allows us to sketch
out an underlying dichotomy, whose emergence we have already observed, indirectly, at
the end of Part II. By clearly understanding this disjunction, we can begin to answer
more fundamental questions: what would a post-Habermasian model of debate look like?
162 Habermas, “Some Further Clarifications of the Concept of Communicative Action,” in On the
Pragmatics of Communication (Cambridge: MIT Press, 1998), 307-342, calls purposive rationality
teleological and attempts to distinguish it from communicative rationality properly speaking (as
he had done earlier). It is unclear why “reaching understanding,” especially in his “strong”
sense, is not a telos—if a vague one.
48
Part IV · From Discourse to Conversation
How do we move from the broad and general concept of communication articulated in
Part II to a theory that would operate in the contexts Habermas has in mind?
The dichotomy in question is that between the discursive and the conversational.
The discursive position posits a telos which then generates a communicative pragmatics
to facilitate its realization: you must talk in a particular way because you must aspire to a
certain specifically defined result. The telos remains abstract and hence papered over;
because of the apparently universal plausibility of a goal like “rationally arrived-at norms”
or “sound and consensual policies,” the discussion of ends becomes displaced by the
discussion of means. Thus, when we encounter the discursive mode, it is generally in the
form of a discussion about the formal standards for a particular debate—the fact that
these are imposed norms is elided or camouflaged with moralism (e.g., the popular
argument that the capitalist media reduces political ideas to soundbites). The
conversational, on the other hand, is non-teleological—or, rather, autotelic. While this
does not exclude the possibility of provisional, pragmatic ends, the principal objective is
to prevent externally-imposed standards that do not find their grounding in the
communicative process. This second term presents a unique opportunity to define what
debate could be after Habermas. En route to formulating such a definition, it is
worthwhile to see how contemporary theoretical investigations have approached similar
questions.
Hans-Georg Gadamer was perhaps Habermas's greatest philosophical antagonist,
particularly in the 1960s and '70s. Broadly speaking, Gadamer opposed Habermas's
liquidationist notion of systematically-distorted communication with an account of the
human being (whether, to use Habermasian terms, as speaker, hearer, or analyst) as
operating inextricably within a horizon of historically-constituted prejudices.163 In the
context of his argument, Gadamer developed a thoroughgoing resistance to teleology,
and it is his articulations of an alternative to it that present the most interest here.
Gadamer begins his foundational work, the 1960 Truth and Method, by mounting an
attack on aestheticizing subjective-idealist interpretations of the relationship between the
work of art and its interpreter. He finds his primary angle of attack in the concept of
play. Play is defined by its lack of a telos:
The movement of playing has no goal that brings it to an end; rather, it

renews itself in constant repetition. The movement backward and
forward is obviously so central to the definition of play that it makes
no difference who or what performs this movement. The movement of
play as such has, as it were no substrate. It is the game that is played—
it is irrelevant whether or not there is a subject who plays it. The play is
the occurrence of the movement as such. Thus we speak of the play of
163 See Jack Mendelson, “The Habermas-Gadamer Debate,” New German Critique 18 (Autumn
1979), 44-73, and, for productive theoretical developments, Susan Shapiro, “Rhetoric as
Ideology Critique: The Gadamer-Habermas Debate Revisited,” Journal of the American Academy
of Religion 62, no. 1 (Spring 1994), 123-150.
49
colors and do not mean only that one color plays against another, but
that there is one process or sight displaying a changing variety of
colors.164
'Play' is useful because it is neither teleological nor founded on a simplistic relationship

between players. But more significantly, Gadamer finds that play is not just a free-
floating abstract process. It is predicated on the ability to specify rules—that is, it
“presents the man who plays it with a task.” While these tasks form “make-believe” ends
of a sort, in fact these are just an excuse for the “self-presentation” of players and play
itself.165 What this suggests is that rules are not necessarily predicated upon an external
telos, but rather can be or must be produced as part of the process of play, which is
always structured.
This essential conviction is developed further in the context of the dialectic. For
Gadamer, the dialectic—the logic of question and answer—provides a way of
developing a truth that does not proceed from abstract answers to transcendent
problems. Rather, “the path of all knowledge leads through the question.” In a dialogue,
the positing of a question presumes a certain degree of openness, the possibility of some
kind of productive answer, which is nonetheless bounded by the limitations of the
communicative situation. Knowledge emerges through the sequence of questions, and so
the paramount objective is to prevent the arbitrary closure of the dialogue. There are no
philosophical problems as such, because an answer can only be given to a question, and
this must be a product of the sequence and cannot subsist independently. In other
words, there is not really a single goal, even an internally-generated one, that beckons
from the end of the sequence. Instead, the dialectic produces a series of contingent and
local goals or moments of openness that then occasion a response. Like play, dialectic
can presuppose rules, which are counsels of prudence centered around the facilitation of
the process of questioning. But these cannot be the basis of a criterion of exclusion.166
These commitments form the ultimate source of Gadamer's objections against
Habermas. Where the latter believes that emancipation can be achieved by a kind of
demystifying praxis—and tradition or “distortion” of any sort is what must be fought
against—the former acknowledges only the possibility of a partial and always incomplete
emancipation. Emancipatory reflection that tries “to think the idea of a completed
reflection ... to achieve an ultimate, free and rational self-possession” can only be
“vacuous and undialectical.” The concept of a reflection that exists outside the dialectic,
or a legitimacy that is established on grounds external to the play of question-and-
answer, is therefore both harmful and, properly speaking, unthinkable. When Gadamer
164 Hans-Georg Gadamer, Truth and Method (New York: Continuum, 1989), 103.
165 Gadamer, Truth and Method, 107-108.
166 Gadamer, Truth and Method, 362-379. Note that Gadamer's concept of the dialectic is distinct
from its Hegelian or Marxian hypostases.
50
speaks of “coming to an understanding,” then, he is not simply echoing Habermas: he
imagines it only within the ambit of a given communicative situation.167
One of Paul Ricoeur's early essays, “The History of Philosophy and the Unity of
Truth,” conceptualizes philosophy itself as a communicative situation. Ricoeur sets
himself the objective of figuring out how “to do the history of philosophy without doing
the philosophy of history.” The philosophy of history, in both its Hegelian and its
vulgar-Hegelian (eclecticist) variants, is problematic precisely because it is teleological. By
positing the history of philosophy as a reflection either of an underlying agreement or of
a historical logic, teleology destroys “the multiplicity of philosophies”; in effect, it is the
expression of a profound arrogance which seeks to position the historicist at the apex of
philosophy—and tyrannically ranges other philosophers on a common and reductive
168
scale of measurement. Ricoeur's trenchant critique suggests another problem for the
discursive mode: it is unable to accommodate the constitutive individuality of a
communicative situation—by erecting an arbitrary standard of judgment, the notion of
an end for discourse elides its most crucial properties.
The solution, for Ricoeur, is a thoroughly agonistic understanding of the history of
philosophy. Truth now becomes neither a unity at the end of history nor a collection of
“monadic” solutions to the hermetically separated inquiries of individual philosophers:
We now approach an intersubjective definition of truth according

which each one “explains himself” and unfolds his perception of the
world in “combat” with another; it is the “liebender Kampf” of Karl
Jaspers. Truth expresses the being-in-common of philosophers.
Philosophia perennis would then signify that there is a community of
research, a “symphilosophieren,” a philosophizing-in-common
wherein all philosophers are in a collective debate through the
instrumentality of a witnessing consciousness, he who searches anew,
hic et nunc.169
It is remarkable that this essay predates Habermas's initial appearance on the

philosophical scene by almost a decade. Ricoeur's approach to intersubjectivity captures
the advantages of this standpoint better than Habermas himself does—despite the fact
that it is the latter's founding ontological principle. Moreover, Ricoeur manages not to
mistake communicants for simple speakers or hearers: the subjectivity of a Plato or a
Spinoza is “raised to the status of a work, a network of significations where the author's
167 Gadamer, Truth and Method, 566-570. It is significant that Habermas, “On the Distinction
between Poetic and Communicative Uses of Language,” in On the Pragmatics of Communication,
387, seems to interpret Gadamer as positing an agreement “actually achieved,” like his own—
in the context of an argument against misreading, no less!
168 Paul Ricoeur, “The History of Philosophy and the Unity of Truth,” in History and Truth
(Evanston: Northwestern University Press, 1965), 42-44.
169 Ricoeur, “The History of Philosophy and the Unity of Truth,” 51.
51
biography is expressed or masked but where it is nevertheless suppressed in favor of a
meaning.”170 By characterizing philosophy in this way, Ricoeur is forearmed to deal with
the question of mediatization: from the point of view of the historian of philosophy, the
attempt to resolve struggling philosophical currents into the bodies of philosophers is
not only impossible but in fact misses the point. The truth that emerges from
philosophical communication is not the truth of psychoanalysis or biography but rather
one peculiar to philosophy itself. Mutatis mutandis, the same would apply for the
conversations of the public sphere: the effort to make them yield an extrinsic end at last
produces a whole that is somehow less than the sum of its parts.
It is possible to find definitions of a “conversationalist program” of sorts outside the
terrain of philosophical hermeneutics. Probably the most significant such definition is
the work of Mikhail Bakhtin on discourse in the novel. Bakhtin finds a point of
departure in classical “parodic-travestying literature,” which is first and foremost a
parody of genre. Whereas genres such as the epic or the tragedy take constraints and
formal strictures on language for granted, enacting them with the utmost seriousness,
parodic literature creates “a special extra-generic or inter-generic world” where such rules
are revealed as unstable and contingent. Genre rules appear straightforward and thereby
assume a direct link between word and world; the undermining of these rules turns
language into an “image of language” and affirms its autarky. From the point of view of a
critique of Habermas, the communicative means produced by the teleological discursive
mode are cast into confrontation with one another and exposed in their arbitrariness—
and the ends themselves become equally questionable. Crucially, the “distance between
language and reality” does not deny a relationship between the two: in fact, it is only
once the dogmatism of individual genres is overcome that reality can be adequately
comprehended in language.171
For Bakhtin, the possibility of debate or persuasion begins here, in the distinction
between “authoritarian” and “internally persuasive” discourse. Authoritarian discourse
“demands our unconditional allegiance” by denying its own fluidity and its relationship
to the dynamic and playful world of language. Since it contains nothing that it can offer
to a dialogue besides its authoritative truth, it “enters the artistic context as an alien
body”—its inherent and pregiven telos destroys its ability to convince. By contrast,
internally persuasive discourse is defined by its porousness. It does not so much
convince on its own terms as enter into a struggle, which transforms both the reader and
the material of the discourse itself. Like Gadamer's dialectic, internally persuasive
170 Ricoeur, “The History of Philosophy and the Unity of Truth,” 47. This also anticipates
Derrida's announcement in Of Grammatology that “the names of authors or of doctrines have
here no substantial value. They indicate neither identities nor causes. It would be frivolous to
think that ‘Descartes,’ ‘Leibniz,’ ‘Rousseau,’ ‘Hegel,’ etc. are names of authors, of the authors
of movements or displacements that we thus designate. The indicative value that I attribute to
them is first the name of a problem.”
171 Mikhail Bakhtin, “From the Prehistory of Novelistic Discourse,” in The Dialogical Imagination
(Austin: University of Texas Press, 1981), 60-61.
52
discourse realizes itself by maintaining and continually creating moments of openness.172
Under conditions of heteroglossia—the characteristic feature of internally persuasive
discourse—the incommensurability of various claims to legitimacy is overcome by means
of a polyvalent mutual encounter. It is clear that this distinction maps fairly consistently
onto the dichotomy between discourse and conversation. It would be senseless for an
internally persuasive discourse to attempt to posit a telos; since its vital quality comes
from its adaptability to new conditions and its ability to fertilize our intellectual
development, it cannot define a future consensus any more than authoritarian discourse
can open a real dialogue.
On the basis of these three conceptions, it is possible to sketch out a development
of the model outlined in Part II. Debate or the search for truth (however provisionally
defined) requires a more specific formulation than that model can provide, since we as
yet have no way of picking out what distinguishes it from other kinds of communication.
There are three features which appear indispensable. The first is, of course, the absence
of an end—in both senses of the word. The communicative process is a working-out of
its own telos, and it can never, so to speak, see beyond the end of its nose; this implies
that there is no point at which success may be definitively announced, and hence that
there can be no end in the temporal sense either. Second, the agonistic principle can
never be discarded: rather than imagine a future closure by means of consensus, the
public sphere must take up the persistence of disagreement as a virtue to be cultivated.
Naturally, an agonistic sense of disagreement does not necessarily imply hostility,
although it may do so. What is at stake—to use somewhat hackneyed terminology—is
the preservation of difference. (For Rancière, this constitutes the central power and
potential of democracy, although the absence of a possible consensus suggests significant
problems for any non-authoritarian grounding of politics).173 Third, any heuristics for
excluding this or that style or approach to conversation must be resisted. If there is no
teleology, there can be no foreordained pragmatics either; more seriously, as Bakhtin
reminds us, the polyvalence of genres itself sustains the life-giving distance between
language and reality.174
It is important to note that this is not a prescriptive or normative guide to arranging
or conducting a public sphere, at least not in a direct sense. Rather, it is a method of
making judgments about existing public spheres—or, perhaps, not making judgments
about them. With a slight shift in the conceptual framing, the public sphere of
eighteenth-century New York appears not as a dismal and useless failure but rather as a
constructive (or paradigmatic!) attempt at establishing and developing a dialogue. The
cacophony of voices and discourses in Androboros can even represent something of an
172 Bakhtin, “Discourse in the Novel,” in Dialogical Imagination, 342-348.

173 E.g., Rancière, On the Shores of Politics, 93-106.
174 As the Roman pagan apologist Symmachus wrote in 384: “We look up at the same stars, the
same sky is above us all, the same universe encompasses us. What difference does it make
which system each of us uses to find the truth? It is not by just one route that man can arrive
at so great a mystery.”
53
ideal. And, however much we may lament the capitalization and insipid triviality of the
contemporary media, it is difficult to affirm that we have ever found a better way of
doing the public sphere—and if we have, that the resources to repair it can be found
anywhere outside of its own dynamics.
Where does this leave the deliberativist? Ironically, it suggests that deliberativist talk
as an interpretive strategy cannot be subject to exclusion either. To assert that
deliberativism has no way of defending its authoritarian teleology without contradiction
is not to deny it status as a legitimate participant in dialogue or discursive weapon (as it
often proves to be). Even shorn of a viable teleology, in fact, deliberativism is precisely
the kind of argumentative standpoint we would expect to see in a fundamentally anarchic
and ungovernable public sphere: just as William Livingston attempted to exclude his
opponents with a sophisticated meta-discursive strategy, deliberativism proves a
convenient and consistent bulwark for a certain kind of position. This essay, in turn, has
been an attempt to counter it on its own ground. Whether it has been successful is for
the conversation to decide.
54

Playing The Craftsman: Habermas, Free Speech, and The Public Sphere of Eighteenth-Century New York

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Playing The Craftsman: Habermas, Free Speech, and The Public Sphere of Eighteenth-Century New York

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Playing the Craftsman

Habermas, Free Speech, and

The tygers of wrath are

He talked in his usual style with a rough contempt of popular liberty.

2 Boswell, Life of Johnson, 157.

Where there is much desire to learn, there of necessity will be

Without Freedom of Thought, there can be no such Thing as

21 Schauer, Free Speech, 35-46.

Those who engage in discussion more frequently (being relatively

27 Pincione and Tesón, Discourse Failure, 228-247.

29 Habermas, Structural Transformation, 166-175, 193-195, 230-236.

33 Habermas, Structural Transformation, xvii.

The aftermath of the revolution of 1830 in France saw an

41 Jacques Rancière, On the Shores of Politics (London: Verso, 2007), 45-47.

44 Rancière, On the Shores of Politics, 50-51.

What rationally motivated recognition of the validity claims of a norm of

Though there is a clear suggestion of normativity here, it comes in the context of an

49 Habermas, Legitimation Crisis, 107-108.

55 Habermas, Structural Transformation, 51.

67 Bolingbroke, Craftsman, no. 264, 132-154.

73 Habermas, Theory of Communicative Action, I:332.

77 Habermas, Theory of Communicative Action, I:43-44, I:157ff.

83 Habermas, Between Facts and Norms, 467.

88 Beth J. Singer, “Towards a Pragmatics of Artistic Utterance,” in Perspectives on Habermas

89 Habermas, Structural Transformation, xviii.

Mulligrub. I'll have my Speech first.

106 See New-York Gazette, September-November 1728.

'These, says Zenger (alluding I suppose to the above cited libelous

117 New-York Gazette, February 4, 1733/4.

From the Moment that Men give themselves wholly up to a Party,

124 The Independent Reflector, February 22, 1753.

132 Warner, Letters of the Republic, 73-96.

135 New-York Gazette, or Weekly Post-Boy, December 25, 1752.

He threw his thoughts into a well-compacted system, which he

144 New-York Journal, February 25, 1768.

I always adhere to the sword that is longest

I answer this pamphlet [Chandler's Friendly Address to All

151 Freneau, “Rivington's Reflections,” in Poems, II:190.

The movement of playing has no goal that brings it to an end; rather, it

'Play' is useful because it is neither teleological nor founded on a simplistic relationship

We now approach an intersubjective definition of truth according

It is remarkable that this essay predates Habermas's initial appearance on the

172 Bakhtin, “Discourse in the Novel,” in Dialogical Imagination, 342-348.

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