As of 2015, there are approximately three billion internet users. There are about two billion smartphones across the world, which is projected to reach four billion by 2020. It is estimated that it would take about six million years to watch all the videos crossing global networks in a single month. Were each Facebook user counted as an inhabitant, Facebook would have a larger population than China.
In 1962, the media guru Marshall McLuhan predicted such developments in his visionary book The Gutenberg Galaxy, writing that “the new electronic interdependence recreates the world in the image of a global village.” Timothy Garton Ash, a professor at the University of Oxford and the Hoover Institution at Stanford University, credits McLuhan in his latest book Free Speech: Ten Principles for a Connected World for his “extraordinary seerlike insight.” But instead of the phrase “global village” — which he finds too small, homogeneous, and conformist — Garton Ash prefers the term “cosmopolis,” which embraces “the entirety of this mixed-up, connected world-as-city” that exists in “the interconnected physical and virtual worlds.”
The author of nine previous books, a regular contributor to The New York Review of Books, and a recipient of the George Orwell Prize, Garton Ash opens his intriguing new work with the sentence “We are all neighbours now.” What concerns this British writer is how everyone in the cosmopolis can get along when it comes to the complicated issue of free speech. He recognizes that we live in a world of conflict and differences, which should not be made sterile, monotonous, uncreative, and unfree, and contends that “the way to live together well in this world-as-city is to have more and better free speech.” His goal, in short, is to work out “a framework of civilised and peaceful conflict, suited to and sustainable in this world of neighbours.” In doing so, Garton Ash offers a sweeping and sober conception of free expression, without naïveté or platitudes.
The problem, according to Garton Ash, is that “[u]nnoticed by many of us, a great power struggle over the shape, terms, and limits of global freedom of expression is raging around us, inside that box in your pocket and perhaps even inside our heads.” He calls it “word power,” which includes “images, sounds, symbols, information, and knowledge, as well as structures and networks of communications.” In the 21st century, previously open, free-wheeling technologies of communications are being reined in and constrained by both public and private powers. Indeed, the “internal, sometimes secret, operational practices of private superpowers may be more influential than the decisions of lawmakers and regulators.” This is no longer “just a matter of a single national government telling you what you may or may not publish or broadcast in one country, or a single newspaper proprietor deciding what it will or will not print — the classic territory of twentieth-century literature on free speech.”
Given the new interconnected cosmopolis, the fundamental challenge is whether the standards of free expression and the open exchange of information worldwide will rise to the level of the American First Amendment model, which Garton Ash considers “the most systematically pro-free speech jurisdiction in the world,” or succumb to the Orwellian model in which an ominous combination of governmental censorship and private regulations stifles free speech and suppress information.
For a cautionary glimpse at what the Orwellian model actually looks like, Garton Ash describes the existing Chinese party-state, which claims the right to control all expression within its frontiers on the grounds of “maintaining cyberspace sovereignty.” To be sure, the Chinese Constitution in Article 35 pays lip service to the principle that “citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession, and of demonstration.” In reality, however, a 2010 white paper from the Information Office of China’s State Council chillingly declared that:
no organisation or individual may produce, duplicate, announce or disseminate information having the following contents: being against the cardinal principles set forth in the Constitution; endangering state security, divulging state secrets, subverting state power and jeopardizing national unification; damaging state honour and interests; instigating ethnic hatred or discrimination and jeopardizing ethnic unity; jeopardizing state religious policy, propagating heretical or superstitious ideas; spreading rumours, disrupting social order and stability; disseminating obscenity, pornography, gambling, violence, brutality and terror or abetting crime; humiliating or slandering others, trespassing on the lawful rights and interests of others; and other contents forbidden by laws and administrative regulations.
China has constructed an elaborate public/private infrastructure that blocks, filters, and directs all internet traffic through “a vast, multi-agency bureaucracy of censorship and propaganda,” which a major Harvard University study called “unprecedented in recorded world history.” In 2011, an extraordinary 13 percent of social media was censored. Estimates of the number of employees in the various agencies of internet control range from 20,000 to 50,000. A 2013 internal Party document contemptuously exhorted party members to beware of seven dangerous concepts, including “promoting the West’s idea of journalism, challenging China’s principle that the media and publishing system should be subject to Party discipline” and “promoting ‘universal values’ in an attempt to weaken the theoretical foundations of the Party’s leadership.”
But, before the rest of us get too smug, much of Garton Ash’s book also raises serious questions over how free speech is treated — mistreated — in Western democracies. Every society — including every democratic society — engages in censorship. For example, justified by “national security,” the Obama administration has prosecuted more whistle-blowers under the 1917 Espionage Act than all former US presidents combined, and is threatening to add NSA whistle-blower Edward Snowden to that ignominious roster.
Garton Ash also looks beyond the United States to further examine limitations on free expression outside of authoritarian regimes. Article 19 of the 1966 International Covenant on Civil and Political Rights boldly declares: “Everyone shall have the right to freedom of expression,” which includes “freedom to seek, receive and impart information and ideas of all kinds.” However, this broad declaration is subject to several explicit limitations “such as are provided by law and necessary: (a) for respect of the rights or reputations of others; (b) For protection of national security or of public order (ordre public), or of public health or morals.” In addition, Article 20 contains a mandate that “any propaganda for war” and “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence” shall be “prohibited by law.”
The protection for freedom of expression in Article 10 of the European Convention on Human Rights adds further restrictions in the interests of “territorial integrity,” “the prevention of disorder or crime,” and “maintaining the authority and impartiality of the judiciary.”
Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination adopted in 1965 requires that States Parties condemn “all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form.” Condemnation of such ideas may be laudable but the Convention goes further and instructs states to make the dissemination of those ideas “punishable by law,” which several countries have done through the adoption and enforcement of hate speech laws.
Garton Ash argues that in mature democracies, which have the rule of law, diverse media, and a developed civil society, “the advantages of hate speech laws, as they have actually worked over the last half century, are outweighed by the disadvantages, including their unintended consequences.” He supports his case with several disturbing examples.
In France, for example, there have been an annual average of 100 convictions per year between 1997 to 2001, which increased to 208 per year between 2005 to 2007. Actress Brigitte Bardot has been convicted five times for incitement to racial hatred for her fulminating attacks on Muslims starting with the way they slaughter animals. Distinguished intellectual Edgar Morin was found guilty for a fierce attack on Israel’s treatment of Palestinians, and a member of parliament, Christian Vanneste, guilty for expressing “homophobic views,” although both convictions were eventually overturned on appeals.
Garton Ash reveals the highly subjective double standards that are often at play when it comes to punishing hate speech. In 2006, the then secretary general of the Muslim Council of Britain, Sir Iqbal Sacranie (who once said death was perhaps too good for Salman Rushdie, against whom a fatwa had been declared for publishing The Satanic Verses) denounced the publication of the Danish cartoons depicting Muhammad, but scarcely a month later publicly declared that gays are “harmful” and “spread disease.” Abraham Foxman and Christopher Wolf of the Anti-Defamation League argue that YouTube was right to leave up the controversial “The Innocence of Muslims” video but insisted that Facebook should take down Holocaust denials because they are hate speech.
To be sure, there are hopeful signs of movement toward a more free and open system. For instance, Garton Ash describes the 2009 decision of the Canadian Human Rights Tribunal holding that section 13 of the Human Rights Act, which mandates controls over hate speech on the internet, violated the free speech protections in Canada’s Charter of Rights and Freedoms. The central contention of this book “is that we should limit free speech as little as possible by law and the executive action of governments or corporations, but do correspondingly more to develop shared norms and practices that enable us to make best use of this essential freedom.”
After spending nine months writing a book on free speech in the 20th century, Garton Ash asked himself: “If your subject is the post-Gutenberg world, how can you rest content with writing about it only in the old Gutenberg way?” Consequently, with a team at Oxford University, he developed an experimental website called http://www.freespeechdebate.com, which presents case studies, video interviews, analyses, and personal commentaries from around the world, much of it translated into 13 languages. (Since LARB is a post-Gutenberg online book review, readers can take a break and click on the Garton Ash’s website, before returning to this book review).
Garton Ash traveled from Cairo to Berlin, Beijing to Delhi, New York to Yangon, and talked and listened about free speech. That experience informed and transformed the book, leading him to reorganize it around 10 Principles. His first principle, entitled “Lifeblood,” expresses his fundamental concept: “We — all human beings — must be free and able to express ourselves, and to seek, receive, and import information and ideas, regardless of frontiers.” We can trace this principle to the core of Article 19 of the 1966 International Covenant on Civil and Political Rights. Garton Ash explains why this is the First Principle: “Freedom of expression is not merely one among many freedoms. It is the one upon which all others depend.”
The use of the term “human beings” is not mere rhetoric. For Garton Ash, “We” means “all the people,” and should not be enjoyed by corporations. In the United States, “the most explicitly, and consistently pro-free speech country in the world, money howls through political campaigns.” In the land of the First Amendment, “the limiting, distorting, and corrupting power of money is the biggest single cause for concern around free speech. Money speaks, too loudly.”
The rest of the 10 Principles focus on the most contentious free speech issues in the world today. How do we deal with dangerous speech that promotes violence? Can free speech be uncensored but subject to limitations? Should we enforce civility by law? Does shocking or offensive art and humor get a free pass? Does respect for religion require laws prohibiting speech that attacks religion? Can we protect individual privacy and personal reputations but ensure public scrutiny of matters of public interest? Is national security helped or hurt by protecting whistle-blowers and leakers? How do we maintain free speech on the internet, which is largely in the hands of private companies unbound by the First Amendment?
In clear and engaging prose, filled with scores of interesting examples and grounded in timely and comprehensive research, Garton Ash addresses all of these questions and more from a broad international perspective. For readers used to examining freedom of expression purely within the confines of the largely self-congratulatory American experience (see my review of Thomas Healy’s The Great Dissent and my review of Burt Neuborne’s Madison’s Music), this book raises challenging issues in the context of a wide range of other countries and traditions.
A chapter entitled “Courage” features the 10th Principle: “We decide for ourselves and face the consequences.” In keeping with his international approach, after citing icons of the Western tradition including Pericles, John Lilburne, John Milton, John Stuart Mill, and Justice Louis Brandeis, Garton Ash adds the story of a modern hero of free speech, Chinese dissenter Liu Xiaobo, who was sentenced to 11 years imprisonment in 2009 for “subverting state power.” In his closing remarks to the court, Liu declared that he looked forward to the day “when our country will be a land of free expression: a country where the words of each citizen will get equal respect, a country where different values, ideas, beliefs, and political views can compete with one another even as they peacefully coexist.” Underscoring the impact of Liu’s remarks, the judge cut him off before he could finish. What he had written, and would have said, was that “I hope that I will be the last victim in China’s long record of treating words as crimes. Free expression is the base of human rights, the root of human nature, and the mother of truth. To kill free speech is to insult human rights, to stifle human nature, and to suppress truth.”
Garton Ash ends by calling for “realistic idealism and idealistic realism.” His impressive book is a testament to his belief that the “[o]ngoing debate about the limits to and positive conditions for free speech is itself a vital ingredient of free speech.” The challenge Garton Ash presents is important. But the outcome of this vital debate does not rest only in the hands of brilliant observers like Garton Ash. It is our shared responsibility. The question he leaves us with is, are we up to the task?
Stephen Rohde is a constitutional lawyer, lecturer, writer, and political activist.