A recent cover story in The Economist warns that free speech is under attack in much of the world, through government repression, assassinations of journalists by nonstate actors, and the rising insistence by minority groups that they have a right not to be offended.1 China’s Great Firewall polices websites and censors an estimated 13 percent of social media posts; Chinese advocates of free speech risk being jailed, and many have been prosecuted for what they say.
Meanwhile, the Committee to Protect Journalists reports that fifty journalists, in eighteen countries, were murdered in 2015, and at year’s end nearly two hundred were imprisoned. Since 2010, more than 450 journalists have been driven into exile. These figures don’t include nonfatal assaults or threats; undoubtedly many journalists have been frightened into silence by the fate of their colleagues.
Universities, like the press and the Internet, are supposed to be bastions of free speech. But a Chinese government directive forbids university teachers from discussing the “Seven Don’t-Mentions,” among which are universal values, Western constitutional democracy, and press freedom. On a lesser scale, commentators warn that on US campuses hypersensitive students are stifling free speech with complaints about “microaggressions” and demands for “trigger warnings” and safe spaces.
At the same time, vile, violent, and deceitful speech has never been more prevalent. As Timothy Garton Ash writes in Free Speech: Ten Principles for a Connected World, “the internet is…history’s largest sewer.” Terrorist incitements are frequent; lies and disinformation abound; trolls and haters are everywhere. A 2014 Pew survey found that 73 percent of Internet users have witnessed harassment on online discussion sites, and 40 percent have experienced it themselves; fully one fourth have encountered physical threats addressed to someone on the Internet. Women are particularly frequent targets: the Justice Department reports that three fourths of cyberstalking and cyber harassment victims are women. Recently The Guardian analyzed seventy million comments on its articles, and found that the ten writers who got the most abuse were eight women and two black men.
What principles should govern a connected world where speech is at once imperiled and too easy to use to do harm? That is the question Garton Ash sets out to answer in Free Speech, an informative and bracing defense of free speech liberalism in the Internet age. He reviews the philosophical underpinnings of free speech, analyzes the threats to free speech in today’s environment, and proposes principles we should embrace to foster free speech in the face of novel threats.
The book is part of an ambitious project inaugurated by Garton Ash and his Oxford colleagues: an international, multilingual forum to discuss free speech controversies. By my count the project’s index now contains nearly four thousand entries covering 163 topics. Garton Ash tells us that the principles he proposes in his book have been vetted, reworded, and reordered after vigorous discussion on freespeechdebate.com—the forum’s website, where free speech liberalism is enacted and not merely advocated.
Twenty years ago, John Perry Barlow, an Internet theorist and activist, issued a manifesto on behalf of “Cyberspace, the new home of Mind,” declaring that governments “have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.” It’s easy to see why Internet pioneers, with their famously libertarian convictions, saw cyberspace as providing remarkable freedom: the network has communities but no leaders, and every voice has access.
Today, Garton Ash argues, Barlow’s utopian picture is essentially false. The Internet is jointly ruled by governments and giants like Google and Facebook—the “big dogs” and “big cats” of cyberspace. Garton Ash borrows this imagery from Jonathan Zittrain. We, netizens of the world, are the mice. The big dogs and cats decide which websites the mice can access, which content gets removed, and which items appear on the crucial first page of our Google searches.
It was inevitable that the freewheeling Internet would collide with the big dogs—most conspicuously China, but also various European countries, with their laws protecting privacy and the “right to be forgotten,” that is, to have damaging personal information removed from the Internet. For those who favor a more regulated Internet in their own countries, on the other hand, the United States is the biggest and baddest dog. China regards US promotion of First Amendment values globally as an assault on every state’s sovereign right to determine the scope of free speech within its territory. In fact the US does not have any clearly effective ability to challenge repression of free speech in China, although in 2010 Google shut down its search engine there because of the censorship the Chinese government required. The United States, Garton Ash notes, has a “small programme to fund technologies that would help circumvent internet-blocking firewalls built by authoritarian regimes such as Iran and China.” He does not say that such programs have had any success. It’s an important controversy and question. We mice must do what we can in favor of free speech values, although we should have no illusions about what can succeed.
The big cats of the Internet industry regulate more subtly, often invisibly. They mine and store our personal data in staggering quantities, the equivalent of thousands of pages about every user, and use it to customize our searches and choose the ads we see. Big cats including Google, Facebook, and Twitter also regulate directly, making their own judgments about removing hateful or obscene material. Those making the judgments are unaccountable to users, and far from transparent.
Sometimes the big dogs and big cats gang up on the mice, for example when Internet companies cooperate with government in data mining for national security. Garton Ash calls this “power squared,” or P2 for short, and he finds it perilous. Big dogs, big cats, P2—these are facts of life that shape the political economy of free speech today. Internet and telecommunications companies secretly cooperated with US intelligence agencies—sometimes voluntarily, sometimes not—and the Snowden revelations made this cooperation the most notorious example of P2. But Garton Ash also points to less-well-known examples, including Western companies selling surveillance and censorship technologies to oppressive regimes.
Against this backdrop, Garton Ash defends a liberal approach close to that of John Stuart Mill—not completely libertarian, but very close to that side of the free speech debates. The main tenets of free speech liberalism are straightforward: first, all speech is permissible unless it harms someone; second, restrictions on speech essential to avoid harms must be tailored as narrowly as possible; third, the cure for bad speech is more speech. Underlying these principles is a tremendous faith in the value of free speech. What justifies it?
Garton Ash offers four familiar arguments for free speech. First, unless we can express ourselves freely, we will never know ourselves; we’ll barely have selves to know. Selves are formed and found through give and take with others. Second, no-holds-barred discussion is the best way to find the truth, and limiting such discussion may prevent the emergence of truths. Third, free speech is essential to good government, by criticizing the government, by exposing official misconduct, and by enlisting the wisdom of the multitude. Fourth, hearing all voices teaches us to live with diversity in our cosmopolitan world. Self, truth, government, diversity—STGD, as he abbreviates it—are Garton Ash’s case for free speech.
These are powerful arguments, springing from the spirit of the Enlightenment, but none of them justifies free expression across the board. Deliberate lies do nothing to advance the search for truth, and the good government argument offers no case for porn. None of the arguments supports the malice of the troll tweeting “rape her nice ass” in response to a journalist,2 or the circulation of photos of the topless Duchess of Cambridge. Sometimes a sewer is just a sewer.
To bolster the case for free speech we need an additional argument—an argument grounded not in the positive case for speech but in the mistrust of censorship. Whoever the regulators may be, we cannot count on their good faith or good judgment when they decree what we must not say or hear. Nor can we trust them to tolerate dissidents and political adversaries. For that matter, even honest regulators will find it nearly impossible to write rules that filter out only the sludge. A policy as seemingly straightforward as “no threats or solicitation of violence” would have blocked advocacy for the American Revolution or the singing of the “Marseillaise” in Rick’s Café.
Yet if free speech has any limits at all, as it surely does, we must trust someone to draw lines. Who? Garton Ash answers: “It is ultimately you, the individual woman or man, who must decide.” That is no answer; leaving the decision to every troll under the bridge would be equivalent to no limits. The Enlightenment maxim “Think for yourself!”—which Garton Ash invokes more than once—must not be warped into “Trust no one else!”
As his argument unfolds, it turns out that Garton Ash doesn’t really reject either public or private regulation of harmful speech. He has no problem with criminalizing child pornography, and “those who threaten violence must be met with the full rigour of the law.” He favors a spectrum of enforcement mechanisms to curtail bad speech. At the harsh end is criminal punishment, to be used sparingly, and only against obvious harms. At the other end is voluntary self-restraint—an individual ethic of civility and respect. For journalists, the individual ethic is one of truthful reporting. Between criminal law and self-enforced ethics we find a variety of formal and informal methods to enforce good behavior, lying on the fuzzy border between “the Kingdom of Laws and the Republic of Norms,” by which Garton Ash means unwritten norms enforced by social pressure:
There is civil law. There is the so-called expressive function of law, with wording that is designed to send a general message about how things should be in a given society. There is “soft law,” a term which well describes the nonbinding character of most international agreements on freedom of expression. There are regulations on nondiscrimination which affect what may or may not be said in hiring someone and at the workplace.
To this list he adds private speech codes in industries, including broadcasting, and universities—the “self-made rules and practices of private powers.” Finally, the mice, acting collectively and aided by the Internet, can sometimes police misbehavior by other mice, and even by the cats and dogs. “We, the mice, vote with our mice.” And we speak with our tweets.
Garton Ash clearly favors informal enforcement over restraint by law. He advocates voluntary self-restraint, reminding us that “a right to say it does not mean that it is right to say it,” and “a right to offend does not mean a duty to offend.” However, this appeal to self-restraint leaves an inconsistency in Garton Ash’s position that he never resolves, between an ethic of self-restraint and an ethic of speaking your mind. He tries to capture both in an ideal of “robust civility,” but the phrase labels the contradiction without resolving it. The “robust” part explains why he opposes self-censorship, and the “civility” part promotes self-restraint—but he doesn’t seem to recognize that self-restraint may lead to more telling and persuasive expression, though it may also be a form of self-censorship.
If selfhood requires self-expression (the “S” argument in STGD), and learning to live with diversity requires exposure to disagreeable opinions (the “D” argument), why restrain yourself? S and D suggest that you owe it to yourself and to others to say what you think, in more or less the words you think appropriate. Since ideas of what is appropriate vary greatly, we are perilously close to the duty to offend that Garton Ash doesn’t believe we have. He counters with an argument for civility, grounded in the need to get along with others in a cosmopolis. But he defends civility more tentatively than STGD, and he offers no real rejoinder to the uninhibited insulter whose attitude is “I’ll tweet whatever I want; let the others get along with me!”
A crucial test case for the free speech liberal is offensive speech, of which the Internet offers plenty: “Vast shit-tides of abuse are waiting to flow out of your box,” Garton Ash writes. Should the spigot be closed, and if so by whom? He believes we should not be forced to view offensive content on the Internet. His sensible proposal is the one-click-away principle: leave the offensive content on the Internet, but make sure the viewer must affirmatively click through to see it.
Obviously, though, we cannot avoid all offensive speech by others. What do we do about it? Here Garton Ash is at his most libertarian. He insists we have no right not to be offended, and his advice is blunt: grow a thicker skin. Recognize, as Nelson Mandela did in the case of racist speech, that “those who are truly demeaned are not the targets of racist abuse but their abusers.” If the targets of abuse choose to regard it as an assault on their dignity, that is their own “sovereign decision on how to view their own situation.”
This argument comes uncomfortably close to Plessy v. Ferguson, the US Supreme Court’s notorious 1896 decision upholding racial segregation. The Court brushed away the argument that segregation demeans black Americans, explaining that “if this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
Of course segregation was not demeaning solely because the “colored race [chose] to put that construction upon it.” Analytically, the mistake is one Garton Ash makes as well: locating offensiveness in the “purely subjective act of taking offence,” as if offensiveness is all in the eye of the beholder. That isn’t how language works. No doubt people can be too touchy, taking offense when none is intended and none is really there. But to deny the offensiveness of common words of abuse, intended to demean their target, and understood that way by onlookers, seems removed from reality.
That doesn’t mean offensive speech should be banned. Policing offensiveness is a job for the Republic of Norms, not the Kingdom of Laws, and the ethic of self-restraint must be the first line of defense. In that case, though, Garton Ash’s advice to the targets of offensive speech to grow a thicker skin seems misguided in the way the Plessy Court was misguided. It puts the moral burden of good behavior on the target of abuse when it should rightly fall on the abuser.
Hate speech is different from merely offensive speech. Unlike personal insults or mockery of cherished ideas, hate speech as the law understands it is speech that incites hatred of people on the basis of group membership—race, ethnicity, religion, gender, or sexuality. Many countries prohibit hate speech. In the past, that included the United States, although today such prohibitions would probably not survive a First Amendment challenge. The aim of laws against hate speech is to ward off what Garton Ash calls “a constant drip-drip of dehumanising abuse of a particular group of human beings.” Such abuse, he warns, “can eventually incline people to violence against that group.” Although laws against hate speech prohibit defamation of any racial or ethnic group, it is typically minority groups that face the danger of public dehumanization. Jeremy Waldron, a defender of hate speech laws, would limit them to speech “directed at vulnerable minorities, calculated to stir up hatred against them.”3
Garton Ash opposes hate speech laws, on several grounds of varying merit. He fears they will lead to a “taboo ratchet” as ever more identity groups clamor for special protection from hate speech:
If race, why not religion? If religion, why not homosexuality? If sexuality, why not disability, age, obesity? If Christianity…, why not Islam? If Islam, why not Scientology? If homosexuality, why not bisexual, transgender and intersex? If fat, why not thin? If old, why not young?
The answer is not as hard as this cascade of rhetorical questions suggests. Only groups in realistic peril of systematic discrimination or persecution need the protection of hate speech laws, and they aren’t difficult to identify. No one oppresses the thin or the young, and hate speech attacking the thin for their thinness or the young for their youth would be merely weird, not dangerous. The list of protected groups may expand as we come to appreciate hitherto-unrecognized discrimination, and it may contract as old forms die out. But it isn’t as endlessly malleable as Garton Ash fears. For that matter, some countries’ hate speech laws restrict the protected categories to race and ethnicity; the “taboo ratchet” objection would not apply to those laws.
Garton Ash is on firmer ground when he points out that the volume of hate speech on the Internet, much of it anonymous, makes law enforcement a nearly hopeless task. Yet as he elsewhere emphasizes, law serves an expressive function, and even an underenforced law may serve as a deterrent and an expression of public conscience.
The main difficulty with Garton Ash’s blanket rejection of laws against hate speech is that he lumps together hate speech with other forms of offensive speech, like personal insults or mockery of religious doctrines. Free speech rightly demands that the latter not be criminalized. Hate speech is different: as Jeremy Waldron emphasizes in The Harm in Hate Speech, its aim is to reduce the standing of entire groups and assault the human dignity of their members. Garton Ash disagrees that this is reason enough to prohibit hate speech, unless it incites actual violence. Yet even if the “constant drip-drip of dehumanising abuse” doesn’t lead to violence, it can lead to perpetual fearfulness of vulnerable groups, and their exclusion from civic life—which is, after all, the aim of hate speech. These seem like evils that a government can rightly seek to combat.
What about speech that threatens or advocates violence, or deliberately provokes it? These are very different cases, and Garton Ash rightly treats them differently. He would ban advocacy only when the violence is “intended and likely and imminent”—the Supreme Court’s criteria in its 1969 Brandenburg decision. But he is rightly willing to relax the imminence requirement, which makes little sense when incitements can linger for years on the Internet. And he borrows from the scholar-advocate Susan Benesch a useful set of criteria for when public speech makes violence likely: an influential speaker, a susceptible audience with grievances, a recognizable call to violence, a social setting conducive to violence, and an influential medium.
Realistically, the difficulty of proving likelihood probably ensures that inciters will never be prosecuted unless the violence they advocated actually happens. Even threats are hard to prosecute: the Supreme Court threw out the conviction of a man whose Facebook posts contained graphic descriptions (some in verse form) describing how he would kill his ex-wife, bomb the sheriff’s department, shoot up a kindergarten, and slit the throat of the “Little Agent Lady” from the FBI who interviewed him about his kindergarten threat. The Court held that the state hadn’t proven these amounted to threats rather than rap lyrics.
Provocations are neither threats nor advocacy, even when they deliberately aim to stir up a violent response. Garton Ash’s most elaborate case study concerns a “sleazy little video” called Innocence of Muslims that contains scabrous depictions of the Prophet Muhammad. It was produced under a fake name by an Egyptian in Southern California whose prior career included convictions for drug crimes and financial fraud. He uploaded it to YouTube in 2012, and within two months it was dubbed into Arabic and publicized by a blogger. The upshot: violent demonstrations against it by Muslims in several countries, causing hundreds of deaths and injuries.
Should the government or Google censor material that seems likely to provoke violent reactions? Here, Garton Ash takes a firm line. The film may be offensive rubbish, but to ban it because of the violence it provokes would permit an “assassin’s veto” and encourage extremists to censor the Internet by threats of violence. Likewise with the depictions of Muhammad in Charlie Hebdo and the Danish cartoons, and with subsequent death threats against the cartoonists. Perhaps it was a bad idea to publish the images—there is no duty to offend. But once the response was violence or threats of violence, taking them down would be wrong. That would surrender to the assassin’s veto, so the drawings must stay.
The assassin’s veto is a powerful concept, and Garton Ash makes a strong case for not giving in to it. Yet he is rightly loath to criticize editors who fear for the safety of their staff and won’t republish offensive texts or images for that reason. That creates a significant dilemma, though. Shouldn’t editors also fear for the safety of the anonymous innocents who will die in distant riots? Garton Ash offers no answer, and there may be no good advice to give.
Lastly, consider the wave of grievance-mongering supposedly extinguishing free speech on US campuses. How big a problem is it? Big, according to The Economist, which reports that “visiting some American universities these days feels like touring the scene of an earthquake, or a small war.” The article bears the dateline “Princeton and Yale,” and if they are cracked and cratered, their grassy campuses disguise it rather well. News reports focus on a handful of incidents, which are undeniably infuriating, but don’t necessarily represent a trend. Garton Ash rightly notes that “a university without student protests against visiting speakers would be like a forest without birds,” and adds, “if students couldn’t write wild articles in student papers what would the world be coming to?” Yet he too rolls out a short parade of anecdotes to raise concerns about the chilling effect of student grievance culture. These range from absurdities (demands for trigger warnings about The Merchant of Venice and Mrs. Dalloway) to more serious incidents of disinviting conservative speakers. But he offers no evidence that instances like these are common, or even that they reflect widely shared attitudes on campus.
My own sense, as a career academic, is that these instances are rather rare, and the free speech climate at universities has varied only slightly over the years. Responding to faculty anxieties, Yale’s president commissioned a report on freedom of expression on campus after protesters disrupted several controversial speakers—but that report was in 1974.
As for the fear that professors must now monitor what they say, thinking before speaking isn’t such a terrible thing. Law professors would be wise to keep their witticisms to themselves when they teach rape cases, regardless of whether a student in the class may have been raped. Garton Ash remarks that “self-censorship is not a good way to uphold free speech.” Often it is—boorishness can stifle dialogue as surely as a gag order, and that is certainly true in the classroom.
Garton Ash is acutely aware that the lines he draws are not the only defensible ones. At one point, he describes complex, contextual judgments as central to his book, as they surely are. “Anyway,” he comments, “what I argue here is not a dictum, let alone a diktat. It is a proposition put forward for debate and disagreement.” Taken in that spirit, the book succeeds beautifully. Its fundamental faith comes out in the last chapter: “Freedom of speech, like the rule of law, strengthens the arm of the weak against the strong.” That may not always be true: as Citizens United and the Murdoch press illustrate, the strong carry a big megaphone. But in a world where free speech can never be taken for granted, Garton Ash’s free speech liberalism is a good place to start any discussion.
“Under Attack” and “The Muzzle Grows Tighter,” The Economist, June 4, 2016. ↩
The example comes from Elizabeth Witchel, “Why a Troll Trolls,” cpj.org, April 27, 2016. ↩
Jeremy Waldron, The Harm in Hate Speech (Harvard University Press, 2014), p. 9, reviewed in these pages by John Paul Stevens, June 7, 2012. Waldron quotes examples of hate speech laws from several countries, including the United States, on pp. 8, 47, and 236–237. ↩