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Following the Obama administration’s historic suppression of government whistleblowers, Donald Trump’s repeated attacks on the media, and controversies on college campuses nationwide, Timothy Garton Ash’s Free Speech: Ten Principles for a Connected World is well-timed. Garton Ash offers a wide-ranging exposition on the right to self-expression and a coherent defense of free speech from an explicitly liberal point of view. Socialist theory and practice has never satisfactorily established the place of free speech in the struggle for social transformation and in a future socialist society — all the more reason to seriously grapple with the challenge posed by Garton Ash’s new book.

Free Speech’s Foundations Garton Ash’s analysis of free speech has two primary sources: Isaiah Berlin, who proposed that free expression is founded on empathy with and tolerance for multiple and conflicting values, and John Stuart Mill, whose defense of free speech primarily stressed its beneficial consequences instead of its intrinsic value as a right. Neither of these perspectives constitute a solid foundation for a defense of free speech. Empathy and toleration — two states of mind — are terrible guarantors for freedom. Empathy does not easily translate into institutional arrangements that could support free speech, and tolerance is a precarious substitute for a robust culture of rights. Instead, rights must empower people regardless of rulers’ individual good intentions. In this spirit, Thomas Paine praised the new French Constitution because it “hath abolished or renounced toleration, and intolerance also, and hath established Universal Right of Conscience.” As he explained, “Toleration is not the opposite of intoleration [intolerance] but is the counterfeit of it. Both are despotisms. The one assumes to itself the right of withholding liberty of conscience, the other of granting it.” Mill’s On Liberty, in contrast, defends free expression primarily on the grounds that truth will emerge from the so-called free marketplace of ideas, making this supposition the principal argument for free speech. It is clear that the absence of free speech and political freedom stand in the way of the search for the truth. But our marketplace of ideas is oligopolistic and thus not fully free, constrained as it is in a class society. Should free speech, therefore, become less valued? Rather than relying on the promise of a consequentialist heaven, it can be argued that a right is a good thing in itself, essential to the dignity and self-determination of persons, and necessary for democracy. Rights — including the right to free speech — might help produce the closest approximation to truth and a better society, but, much more important, they are a constituent element of a good society. Like other conceptions of rights grounded on metaphysical, ahistoric notions like human nature or natural law, Garton Ash’s reliance on empathy and tolerance cannot found a robust right to free expression, safe from erosion by powerful economic or governmental actors. We need an alternative approach to rights that does not hinge on abstractions. Rosa Luxemburg offers one: Every right of suffrage, like any other political right, is not to be measured by some sort of abstract scheme of “justice,” or in terms of any other bourgeois-democratic phrases, but by the social and economic relationships for which it is designed. Luxemburg understands rights as embodiments of concrete social and economic relationships. In liberal capitalist societies, unequal access to power constrains these rights. In a thoroughly democratic socialist society, these constraints would disappear. Indeed, what Free Speech most lacks is Luxemburg’s concrete understanding of the relationship between rights and power. In what follows, I’ll detail three of the ten principles that organize the book to show how his liberal interpretation of the right to free speech fails to account for the impact of power structures on free speech. First, Garton Ash argues, following American jurisprudence, that free speech can be limited when violence is intended, likely, and imminent; that is, when hate speech has turned into dangerous speech. Second, he advocates for the protection of the right to privacy so long as it does not block scrutiny in the public interest. Finally, he calls for the absolute support for the open expression of all human disagreements, provided participants maintain “robust civility,” defined as speaking one’s mind while exercising self-restraint to maintain the civil peace necessary for the proper functioning of liberal democracy. These three principles seem straightforward enough, but closer analysis reveals that the social and economic inequality largely ignored by Garton Ash also play critical roles in limiting free speech. Garton Ash’s seeming willingness to accept this inequality reveals his belief that power only inheres in the state, not in socioeconomic relations.

Intended, Likely, and Imminent Garton Ash’s confusion over free speech and power becomes most clear in his defense of Larry Summers, the economics professor who was force to resign as president of Harvard University after suggesting that the “low proportion of women in science and engineering might result from innate differences in ability and inclination, as well as the pressures of family life and other factors.” Garton Ash returns to John Stuart Mill to argue that Summers’s statement was intended to advance knowledge. He asks, “Was Summers trying to insult or demean women? Or was he, however provocatively, genuinely trying to advance scientific understanding? Looking at the evidence,” Garton Ash concludes, “I judge that it was the latter.” Aside from the fact that Summers’s statement rested at least partially on discredited theories of genetic difference, Garton Ash’s conclusion fails to adequately address the context in which Summers spoke. As an economist, Summers has no credible expertise on gender difference. Further, the protests against his remarks did not imperil his academic freedom as a professor in economics, but rather his position of power as university president. From the protesters’ perspective, Summers had used his position against the interests of women. Contrary to what Garton Ash implies, this had nothing to do with freedom of expression, but rather with an expression of power. The same confusion crops up when liberal pundits criticize student protests against political figures invited to speak on campus. Garton Ash misrepresents these demonstrations, imagining that they primarily occur when speakers are invited to defend their positions on some controversial matter. In fact, many of these protests take place when the person arrives to be honored by the university. For example, in 2014 Rutgers University invited Condoleezza Rice to serve as commencement speaker and receive an honorary degree. Rice’s withdrawal in the face of student and faculty protest does not represent a defeat for free speech, but instead a small but real victory for those objecting to Rutgers’s decision to celebrate a figure who embodies American imperialist policies. Similar considerations should apply to calls to rename Calhoun College at Yale University and the Woodrow Wilson School at Princeton University, institutions that honor well-known racists. Disputes about how institutional honors like these enhance their recipients’ reputations do not relate to free speech, but to the legitimation of power holders, and their political and cultural uses. When we turn to public figures invited to speak about controversial topics, we must distinguish between racist persuaders and violent racist intimidators. People like Arthur Jensen, Richard Herrnstein, and Charles Murray, who propagate offensive racist myths under the guise of social science, are racist persuaders. Their pronouncements take place entirely within the realm of discourse, to which opponents can respond through rational discussion and careful refutation. Other free speech rights, including the venerable traditions of picketing and heckling, stop short of using force to stop figures like these from speaking. Even the sharpest ideological struggle abides by implicit rules that social movements have occasionally violated when they have replaced persuasion with the use of force. This not only violates the speakers’ fundamental rights, but is also bad strategy. Protests ignoring the right to free speech alienate both the audience attending the event, whom protesters should be trying to win over, and those who wish to preserve free speech. This differs from racist or antisemitic acts of intimidation perpetrated by organized groups with a history of physical violence. The 1936 march organized by the British Union of Fascists in the Jewish-majority East End of London illustrates this distinction. Oswald Mosley, the demonstration’s leader, did not intend to persuade the Jews living in that neighborhood to join their group. Rather, he wanted to terrify them. Nor did the American neo-Nazi group that applied for a march permit in the also heavily Jewish Chicago suburb of Skokie in 1978 set out to convert the residents, many of whom were Holocaust survivors, into Nazis. In London, Mosley and his followers were met by twenty thousand antifascist demonstrators, who clashed with the six thousand police trying to protect a couple thousand fascists in the now famous Battle of Cable Street. Things went differently in Skokie. The local authorities tried to prevent the march, but the American Civil Liberties Union (ACLU) sued to allow it, causing many of its members to resign. Despite the ACLU’s legal victory, the neo-Nazis decided to stage a rally in downtown Chicago instead. In some ways, this mirrors Mosley’s East London march. But it differs importantly: Nazism was rising in the 1930s, but, by 1978, American neo-Nazism had become a small, fringe group. Regardless of their relative power, both forces belonged to an organized political current with a history of physical violence and a strategy of seizing political power. The ACLU’s defense included two arguments relevant to the present discussion. On the one hand, they pointed to the dangers posed by allowing the state, local, or federal government to limit or regulate speech, fearing it would set a precedent that could be turned against other social movements’ democratic rights, including organized labor, minority groups, and the Left. Indeed, the danger of empowering the state to limit free speech rights is precisely why socialists cannot rely on the state when confronting violent intimidators. Secondly, the ACLU claimed that because the march did not pose an intended, likely, and imminent danger of violence, it counts as constitutionally protected speech. This clarifies an important distinction between the antiracist left and the more broadly liberal ACLU. For groups like the ACLU, violent intimidators should enjoy the same free speech rights as racist persuaders like Jensen, Hernstein, and Murray until the speech becomes dangerous. For the antiracist left, violent intimidators are categorically different from racist persuaders. The relationship between groups like neo-Nazis or the KKK and democratic social movements is one of open belligerence rather than ideological struggle. Violent intimidators are not trying to persuade, but to intimidate. Their language is the language of violence. As far as the social movements are concerned, the otherwise reasonable rule that speech is protected until violence appears imminent should not apply to these violent intimidators: instead, that principle allows them the choice to select the time, place, and manner most favorable for their violent actions. In Skokie, the antifascist forces had the upper hand thanks to the tremendous mobilization provoked by the march. The question of stopping the neo-Nazis from marching altogether should not be regarded as a question of principle but rather as a question of strategy and tactics. Several considerations are relevant here, including the relation of forces in the streets, whether the majority of protesting groups would support preventing the march, and whether significant sections of the public would recognize that forceful action’s justness instead of perceiving the neo-Nazi intimidators as victims. These same considerations should influence our analysis of the recent controversy surrounding Milo Yiannopoulos, whose appearance at Berkeley was canceled following a massive demonstration and the actions of a small group of fifty to one hundred people who engaged in the destruction of university property. His previous political record shows Yiannopoulos as a racist persuader of a particularly reactionary and obnoxious kind who, as we argued above, certainly requires that the protesting students exercise their free speech rights with massive picketing and heckling while respecting the principles of free speech, stopping short of a forceful suppression of the event. However, some have claimed that Yiannopoulos had planned to reveal the names of undocumented students. Had he tried to do so, then the clash between him and the protesters would have moved to a different ground beyond persuasion, and the audience would have been entitled to shut him off immediately. In other contexts, such as civil war or a more limited but naked conflict like a strike, the contest for power has replaced the contest for free expression. When union members physically block scabs from entering the workplace, or when the police and the employers smash a strike, power — not free speech — is at stake. A worker injured by a policeman while trying to stop a scab is victim to the state’s repressive capacity for violence, not its capacity to silence dissent.

Freedom’s Limits Like many European liberals, Garton Ash often conflates freedom with the free market, seeing any state intervention as an attack on individual rights. This extends to his notable opposition to regulation, which he seems to associate with censorship. However, regulation is not only compatible with the protection of civil and political rights, it is essential to it. For one, regulation may actually promote free speech by allowing greater access to the media. Garton Ash recognizes the unequal access to the mass media, even citing A. J. Liebling’s famous dictum that “freedom of the press is guaranteed only to those who own one.” At the same time, Garton Ash rejects even modest measures to improve media access. For example, he is aware of but does not promote the Fairness Doctrine, obligating radio stations to provide airtime for opposing views on controversial issues, which was repealed in 1987. When the Federal Communications Commission adopted this principle in 1949, they did so based on the now-radical notion that the airwaves belong to the listeners, not the stations. Beyond the restoration of such modest measures, we have to look forward to the socialization (not statification) of the big media, putting it into the hands of popular, non-state organizations, in proportion to their size and importance in society. While that is not a demand that is actionable in the near future, it should be an important part of a radical critique of existing society and of a vision for a socialist and democratic future. Garton also explicitly criticizes the laws in many German states that establish the right of any individual, association, company, or public body to demand that a publication print a correction, free of charge, in a later issue. The correction must appear in the same section and in the same type size as the original statement. If need be, a judicial order in a civil court can enforce this rule. Garton Ash objects to these laws because he finds them ineffective in the era of social media. In this, the author once again fails to see rights as good in themselves, falling back into Mills’s consequentialism, and also underestimates the great power still exercised by newspapers like the New York Post and its global equivalents. Consistent with his anti-regulatory stance, Garton Ash argues that European laws granting the right to be forgotten are “indefensible in a society that believes in freedom of expression.” These laws, which allow individuals to have, after a number of years, items removed from the Internet that damage their reputation, do not violate free speech in any significant way. Indeed, in an era when asking job applicants about their criminal records is increasingly challenged, these right-to-be-forgotten laws express an egalitarian sensibility with important racial and class implications. Garton Ash’s objection that even the most junior guard at Auschwitz has no such right ignores the purpose of these laws. Moreover, the counterargument is hardly convincing since such laws could easily exclude public figures and crimes like genocide. Garton Ash explains that the European inclination in favor of such laws stems from the “high value [Europe] places on privacy and reputation, drawing on much older, chivalric, courtly, and aristocratic traditions of honor, as well as post-Holocaust concerns about human dignity.” Unfortunately, Garton Ash does not spell out the American counterpart to this European value scheme. Does it involve a version of American individualism in which atomized individuals have no community ties and therefore no concern for their reputations? Do we really only associate honor with chivalry and aristocracy? After all, as Primo Levi so poignantly described, the horror at Auschwitz involved, among other things, the systematic elimination of anything resembling honor for its victims. That the concept of honor may have European origins hardly limits its applicability. Perhaps Garton Ash’s strong distinction between European and American codes of honor relates to his assertion that the United States is the free speech country par excellence. To be sure, there is a valid argument to be made for this view in terms of constitutional doctrine embodied in the Bill of Rights and several important Supreme Court dissenting opinions and majority decisions since 1919 (although this would need to be balanced with some other atrocious Supreme Court decisions made in the name of free speech, such as the 2010 Citizens United decision removing important regulations concerning electoral spending.) However, we cannot limit our criteria to the legal realm. The legal system may set the rules, but the game’s outcome is ultimately decided by the power of competing social classes. Besides the lack of democratic media access and the hundreds of millions of dollars spent on elections, the support for freedom of expression is hardly unanimous in the United States. Off college campuses and outside the relatively freewheeling cosmopolitan centers, deeply conservative communities have not had universally accepted freedom of speech in all of its expressions. Also, we should remember that the First Amendment was a virtual dead letter for most local and state governments well into the twentieth century. That is why militant organizations such as the IWW (Industrial Workers of the World) famously carried out free speech battles all over the United States in the early decades of the twentieth century. Garton Ash overlooks other important limitations to free expression, especially those around private property. This exclusion makes sense in the context of personal property: no one should have the right to leaflet your backyard party without your permission. But workplaces are mostly privately owned, and, as a result, workers do not enjoy constitutionally entitled free speech rights at work. While the labor movement has carved a few exceptions off that general rule — the right to discuss working conditions and union membership or the establishment of bulletin boards where union-related materials can appear — these rights remain inadequate and have been increasingly eroded. The limitations inherent in the exemptions granted by labor legislation become clearly evident in the case of shopping malls, where walkways widely used by the public are privately owned. The Supreme Court has designated them as private property and therefore exempt of First Amendment rights for the general public, although a few states (California, Colorado, Massachusetts, New York, New Jersey, Oregon, and Washington) have recognized the right of free speech in malls, incorporating that right into their constitutions. Not all limitations on free speech come from capitalist ideology, however. Garton criticizes one regulation that appears to support social justice, but instead works against a democratic agenda: the growing demand that all college and university instructors include trigger warnings on their course materials. These warnings are designed to alert students about material that may produce a traumatic memory (for example, of sexual assault) or cause discomfort to a group. Of course, trigger warnings have been on campus for a very long time, but they haven’t always gone by that name. Students receive both formal and informal counseling about which courses to take and from whom. This advice partly depends on each student’s interests, views, and experiences. Required courses usually have different sections and instructors — who often vary from semester to semester — and instructors typically provide detailed syllabi that inform students in advance about the course materials. Further, certain courses constitute trigger warnings by their very nature, as, for example, courses on rape law. Finally, many instructors present additional warnings when they introduce specific assignments. To oblige instructors to do so as a matter of policy — as some students and faculty are arguing we should — establishes an unnecessary restriction on both the instructor’s and students’ freedom of speech. It encourages a climate of undue caution, timidity, and even fear in what should be a wide-ranging but mutually respectful exploration of ideas. The current call for universal trigger warnings may emerge from the doctrine of positive thinking that attempts to disguise the inevitable pain provoked by crises as opportunities to grow and develop. It certainly comes out of the neoliberal view of higher education as consumption in which tuition dollars are supposed to buy a pleasurable product. Instead, we should view education as a necessarily uncomfortable experience that challenges students’ certainties of class, race, and gender. Democratic education encourages respectful but sharp debate instead of obscuring the sordid nature of racism and exploitation with fashionable buzzwords. Along the same lines, colleges and universities trying to police microagressions not only curtail students’ freedom of expression but also rob them of important educational opportunities. In 2007, research psychologist Derald Wing Sue and his collaborators defined microaggressions as brief and commonplace daily verbal, behavioral, and environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial, gender, sexual-orientation, and religious slights and insults to the target person or group. That this behavior frequently occurs in institutions of higher learning should not surprise us. American society has a substantial reservoir of racism and sexism, and educational and residential segregation encourages insensitivity and unintentionally offensive behavior toward racial and gender minorities. University administrations should teach students, faculty, and staff to avoid such behavior. A few administrators, however, have gone past this and created highly specific codes of conduct to enforce a culture of tolerance on campus. Besides setting a bad precedent, their efforts to closely regulate behavior fosters an oppressive climate. In 2016, the Diversity Office and other groups at University of Massachusetts Amherst issued the “Simple Costume Racism Evaluator and Assessment Meter,” or SCREAM, a detailed checklist that helped students assess their costumes’ offensiveness across five threat levels. For example, students were asked if, when dressing up as another person, that person was of the student’s own race. If yes, the costume carried a “low” threat level. If no, the student was asked if the costume required heavy makeup. If no, the threat level rose to “guarded.” If yes, the threat levels increased to “elevated,” “high,” or “severe,” depending on how much makeup the costume required and if it was an attempt at humor targeting a person from a marginalized group. Rather than using Halloween to educate the community about how victims of sexist and racist oppression may find certain costumes offensive, the Diversity Office instead issued a mechanical and lengthy checklist to guide the behavior of the campus community from above. What is most disturbing about this top-down approach is the assumption that university (or government) administrators should be the principal source of corrective action in matters that do not involve individual or institutional discrimination. In the last analysis, university administrations will prioritize the institution’s peace and reputation over ensuring racial and gender justice. In the sixties and seventies, when female and minority students confronted worse forms of racism and sexism on campus, they resorted, with a substantial degree of success, to face-to-face confrontation. While not perfect — and certainly not popular among university authorities — this approach is far preferable to the regulations’ bureaucratic rigidity and absurdity. More importantly, it protects the free speech rights of instructors and students.

Robust Civility Garton Ash’s defense of free speech clearly extends beyond advanced capitalist democracies. He also tries to connect the issue to oppression by repeatedly alluding to Nina Simone’s “I Wish I Knew How It Would Feel to be Free,” arguing that “if everyone . . . is free to express herself or himself, then we have a better chance of understanding what . . . ‘it means to be me.’” But when it comes to analyzing concrete issues like Islamophobia, he seems incapable of seeing the effects of oppression. To be fair, he does emphasize Islam’s diversity and heterogeneity, questioning any generalizations about the religion’s relationship to free speech. But he then presents Islamic fundamentalism — and its disregard for free speech and other democratic practices — as an exclusively religious phenomenon, ignoring the impact of various forms of imperialist intervention in North Africa, the Caucasus, and the Middle East. In Asia, Muslims are often the victims of terrible repression based solely on their ethno-religious status, and, in the United States and Western Europe, Muslim immigrants have become the target of persecution and widespread discrimination. Legal restrictions on their right to wear religious garb in public, on mosque construction, on Islamic prayer services, and even on halal food are antithetical to freedom of speech and association. Garton Ash’s disregard for racism and discrimination is nowhere clearer than in his discussion of the vicious killings at the Parisian magazine Charlie Hebdo. In Free Speech, Garton Ash fails to mention France’s rampant Islamophobia as a factor in the attack. Indeed, at the time, he had no qualms about appealing for a “week of solidarity” in which newspapers would have simultaneously published a “carefully presented selection of the Charlie Hebdo cartoons, with an explanation of why they were doing so.” To their credit, many newspapers refused to participate. Dean Baquet, the executive editor of the New York Times, explained that an important consideration for his refusal was “the Muslim family in Brooklyn.” Garton Ash argues that this had not stopped the Times from occasionally publishing antisemitic cartoons or printing a reproduction of Chris Ofili’s painting The Holy Virgin Mary, although it must be noted that these were published in the context of news stories. What Garton Ash fails to recognize is that antisemitism or anti-Catholicism were marginal phenomena at the time of those publications, whereas Islamophobia was at its height during and following the Hebdo attacks. Supporting the right to offend as an element of free speech can still take into account whether the offended represent marginalized communities. This is not meant to suggest that censorship should be enacted to end Islamophobia. Rather, the government and civil society should work together to develop a political climate that strongly repudiates Islamophobia and supports the vigorous legal punishment of anti-Muslim discrimination. On campus, the issue of balancing students’ rights to free expression and association become hotly contested around demands for safe spaces, which refer to locations where members of a group can exclusively gather. In the diverse universe of campus groups of students, faculty, and staff, the right to associate with out members of your race, ethnicity, gender, or religion represents an elemental democratic freedom. In a recent op-ed, Northwestern University president Morton Shapiro uses the story of a group of black students eating lunch together to illustrate the importance of safe spaces. Two white students approached the group and asked if they could join them, explaining that they wanted to engage in the kind of “uncomfortable” learning the school encourages. The black students politely refused. Shapiro defends their decision, implicitly arguing that in certain situations the black students’ right of free association trumps the white students’ putative free speech rights. The same principle could apply to Asian students who want to live in dormitories with other Asian students, provided that the university does not require all Asian students to live together or exclude them from dorms where other minority groups and white students live, which would constitute compulsory segregation. Now, some campus voices have starting calling for the establishment of safe spaces beyond specific locations where groups can meet by themselves, demanding that the classroom and even the entire campus become safe spaces for historically oppressed groups. This would be a perversion of the right of free association and assembly, directly blocking higher education’s ability to challenge established ideologies and practices as a way to encourage critical thinking. While hate speech is unacceptable inside the classroom because it creates a hostile learning environment, this should not be confused with the introduction of ideas that some may find alien and even offensive, which is essential to higher education. A different but equally serious problem occurs when a group limits its safe space to those members of their ethnic, racial, or religious group who hold similar political points of view. As Jonathan Paul Katz describes, Jewish groups like Safe Hillel want to “make sure that Hillel remains a place on campus where students can speak freely about pro-Israel views, without having to defend against Zionism.” In practice, this means that Hillel systematically excludes Jews who are critical of or hostile to Israel even though the group obtained recognition and its associated benefits from the administration as the center for all campus Jews, regardless of political affiliation. Imagine the scandal if an African-American campus house, club, or dormitory required adherence to black nationalist ideology as a condition of membership. Hillel’s exclusionary policy participates in a broader campaign against critics and opponents of Zionism. PEN America’s 2016 study found that many Zionist individuals and institutions have attempted to bar the Boycott, Divestment, and Sanctions (BDS) campaign from campuses throughout the United States. For example, journalist Glenn Greenwald and others denounced a campaign by the Board of Regents of the University of California to ban anti-Israel criticism and activism in the name of combating antisemitism. Meanwhile, campuses nationwide have been pressured to fire pro-Palestinian professors and adopt reprisals against pro-Palestinian groups. The developments at Hillel have to be understood in the broader context of these developments as a growing number of Jews, particularly young people, are questioning the politics and practices of the state of Israel.