Balkinization: Timothy Garton Ash's Free Speech -- A Mini-Review Part I

Timothy Garton Ash's Free Speech -- A Mini-Review Part I

Mark Tushnet

I just finished Timothy Garton Ash’s Free Speech, which I got with the thought of writing a review that would contrast what a smart journalist says about free speech with what a legal specialist would say. But, having finished the book, I’ve decided that it’s not worth a full scale review, but rather a mini-review in the form of a couple of blog posts.

In my research on the Hughes Court, I ran across a wonderful phrase by Walton Hamilton, about an opinion by Chief Justice Taft, which Hamilton said fell “just short of being useful.” So too with Ash’s book: It falls just short of being useful.

The core problem with the book is that it has an impoverished notion of democracy. In one of Ash’s turns of phrase, he says that, “If we want to protect the pure knowledge-seeking beauty of Googling from the commercial temptations for Google, we need to raise our voices and vote with our mice.” What about voting with, well, our votes? (I refrain from compiling instances where Ash advocates for private pressure – voting with our mice – without considering whether public action – voting with our votes – might also be defensible, but examples can be found throughout the book.)

As far as I can tell, Ash never seriously considers the possibility that a responsible electorate could choose to enact restrictions on expression in circumstances where Ash thinks such restrictions inappropriate. I should note that most of the time I agree with Ash’s policy prescriptions, and I am happy to see him advocating for them. But, again, suppose he persuades me and a fair number of others, but more people, upon considering his arguments, think they are wrong, and that carefully designed restrictions on expression would be a better policy. Ash says that all such restrictions should be subject to challenge and must be justified, but, once again, never really explains who is supposed to decide when those supporting the restriction have provided an adequate justification.

(There’s one hint of an account, but it is seriously underdeveloped. Ash commits himself to the standard litany of justifications of a principle of free expression – autonomy, truth, democracy, diversity – though without discussing in detail the well-known controversies both specifying what they mean in particular circumstances and about the extent to which they can be limited to a free speech principle. With respect to autonomy, the difficulty is obvious: Everything one does is or can be an expression of the autonomous self, from speaking to ticket-scalping. Ash is attracted to a libertarian-leaning account of autonomy, as his citation to Hayek early on and his disapproval of the Wackenheim “midget tossing” decision later suggest. But, what of those of us who aren’t libertarians of that sort?)

Ash offers the thought that voting with our mice – action by civil society (understanding the consuming public to be part of civil society, which is itself a contested claim) – can be effective. As indeed it can be. But, perhaps not always, as might be true with respect to monopolies or near-monopolies. Most of Ash’s examples of civil society action are actually unhappy ones, accounts of failures, though mostly in polities that aren’t, in his terms, “mature democracies.” And some of his happy examples involve face-to-face interactions that are difficult to replicate in the large, as I argued in my mini-review of John Inazu’s recent book.

I can’t decide whether the following point is closely connected to what I’ve just written (I think it is, but am not sure), or is just another example of “falling just short." Ash discusses the problem that claims of national security pose to those who believe that all restrictions on expression require justification: Defenders of the restrictions claim that even providing the justification would impair national security. Ash’s remedy is to urge the adoption of legislation that would impose more transparency on these restrictions. This is a classic illustration of the Vermeule-Posner argument about self-defeating proposals: Ash’s description of the political environment of the restrictions themselves shows why his reform proposals are quite unlikely to be adopted. Ash’s response is, once again, civil society: “We” can organize outside the government to pressure “it” to adopt transparency regulations. Again, though, one would like an account of how this might actually succeed, in the conditions of ignorance – justifiable, in “the government’s” eyes – Ash assumes. Again, it’s not as though Ash doesn’t perceive – dimly, it seems to me – the nature of the problem. But, he falls short of offering useful observations about it.

More to come.

Posted 9:49 PM by Mark Tushnet [link]