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

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

Mark Tushnet

Ash knows a lot. Indeed, one of the problems with the book is that he apparently accumulated a large number of the current equivalent of note cards with interesting facts, and seemingly decided to include all of them in the book. Often one wonders why one paragraph follows the prior one, except in the “Oh, that reminds me of this” mode. The book also has too much of what passes for cleverness among journalists. An egregious example is this: Criticizing as a “blancmange of oecumenical waffle” the proposal that children must learn to speak and act truthfully, Ash writes, “What if the Reverend Baroness Cara-Marguerite-Drusilla truthfully thinks that one of the practices of Burton Pretty on Top’s religion should be banned in any civilized community, and Burton Pretty on Top truthfully disagrees?” Ash apparently thinks that this is devastating to the proposal. But, it obviously confuses speaking truthfully with speaking honestly. Each could honestly think what she and he do, but one or both can’t truthfully think what Ash imputes to them.

And there are quite a few other annoyances. He advocates for open access to scholarship, in a book for which his publisher is charging a fee ($14.99 for the Kindle version, if you care). He acknowledges the anomaly, writing that he could afford not to take a cent in royalties from the book (and maybe he hasn’t, or has donated his royalties to an appropriate NGO), but that’s insufficient. First, the reason he published the book with the Yale University Press probably has something to do with its ability to distribute it more widely than a self-published book would be distributed, and its ability to get more reviews than would a self-published book. But, both of those depend on the Press’s ability to use what it charges for things that benefit both authors and readers. So, sometimes open access has costs to the dissemination of ideas. And, even more pointedly, the reason that Ash is able to forgo royalties, if he does, is that over time he made a fair amount from charging people for his earlier works. Again, this particular book wouldn’t be available in a world of permanent open access, because Ash wouldn’t have been able to earn a living as a journalist in such a world. Saying, as Ash does, “The maximization … and spread of knowledge itself requires a carefully redrawn, strictly limited but then also effectively enforced protection of intellectual property,” falls just short of being useful.

Here are a few more of the “just falling short” defects, in no particular order. Often Ash carefully lays out various dimensions of a real free speech dilemma, and then says, “Well, the answer to the problem depends upon a careful evaluation of all the circumstances.” Or, a direct quote: “Although simply stated, this principle is fiendishly difficult to implement.” And so it is. But, it would be nice to have an evaluation. And, in particular, referring the first part of this mini-review, how are we supposed to think about situations in which a democratically elected legislature chooses to implement the principle in a way with which we – or Ash – happens to disagree?

(One exception to the careful exposition of the problem is Ash’s discussion of restrictions on speech in the name of what is claimed to be national security. Here the dreadfully superficial treatment may be concealed a bit by artful exposition, and a bit by Ash’s – and his likely readers’ – suspicion of the claims of national security.)

Ash says that there’s one near absolute: People can appropriately be punished for advocating violence in Brandenburg-like settings. One would like to know, though, exactly what counts as “advocating violence.” And it’s not as if Ash doesn’t know that the problem of characterization exists, because he's read Mill and knows of Mill's example of a person speaking before an angry mob in front of a corn-dealer’s house, saying, “Corn dealers are starvers of the poor.” Is that advocacy of violence? Or, to use the other chestnut, what of Marc Antony’s speech at Caesar’s funeral?

There’s too much of this in the book: marching right up to the point where one would like to see some informed analysis, and then moving on.

Posted 10:04 PM by Mark Tushnet [link]