My blogging has fallen off seriously in the last few weeks.  This is due mainly to my finishing up an essay I’ve been working on called “The Abuses of Literacy: Amazon Kindle and the Right to Read.”  Well, it’s done now (at least a solid draft of it), and so I’m back to posting on The Late Age of Print. And in the spirit of the essay, I thought I’d say a few words about the “right to read.”

It’s an idea that, as far as I can tell, was introduced back in 1994 by law professor Jessica Litman, who published an essay in the Cardozo Arts and Entertainment Law Journal called “The Exclusive Right to Read.”  Her piece was followed three years later by another one, a story by free software pioneer Richard Stallman, called “The Right to Read.”  Law professor Julie Cohen gave the concept its fullest treatment in “The Right to Read Anonymously,” a marvelous work that she published in 1996 in the Connecticut Law Review.

The crux of the argument, articulated most clearly by Cohen, is this: “the content of one’s speech is shaped by one’s response to all prior speech, both oral and written, to which one has been exposed.”  Reading thus is an integral part of the circuitry of free expression; the one simply cannot exist without the other.

I’m rather taken with the idea of a right to read given the ways in which new e-book systems, such as the Amazon Kindle, tether reading to corporate custodians who in turn mine the machines for intimate details about how people read.  As these devices become more prevalent, I worry about the effects they might have on how people practice and conceive of reading.  Until now it was relatively difficult to monitor closely how and what people read.  What will become of reading, and people’s relationship to it, once that freedom is definitively diminished?  Indeed, a right to read seems to me of paramount importance in a context where someone is looking over your shoulder every time that you open an electronic book or periodical.

This of course begs the more difficult question, how should a right to read be implemented?  Cohen’s work is brilliant in that it locates a right to read quite convincingly in the penumbra of the First Amendment to the United States Constitution, deriving it from existing case law.  The trouble with this approach, though, comes from the current mood of the U.S. court system.  Jeffrey Toobin’s recent piece in the New Yorker, on the legal backlash against “judicial activism,” suggests that the courts as a whole — and the Supreme Court in particular — are for the most part unwilling to expand rights in precisely the way that Cohen is calling for.

So perhaps a right to read could be established legislatively — maybe even as an amendment to the U.S. Constitution.  I like this approach in theory, but cannot imagine how it would ever happen in practice.  After all, we’re talking about a Congress that passed the 1998 Digital Millennium Copyright Act unanimously.  This is also a Congress that listens closely to cultural producers such as Disney and lobbying groups like the MPAA, who in all likelihood would oppose a right to read on the grounds that it would force them to give up some measure of control over their intellectual properties (to which I would respond, “exactly!”).

Is there a third way?  I sure hope so, and I suspect if there were it would have to begin at the grassroots.  I’m thinking here of something like a counterpart to the Creative Commons, a nonprofit that gives cultural producers licensing options beyond the more traditional — and traditionally restrictive — terms of copyright.  Would it be possible to begin architecting legal and digital rights similarly — that is, to allow people to read anonymously or at least under their own terms?

This is the question I’m left with having completed my piece on the Kindle, and indeed I believe it’s urgent that we respond to it.  It’s a question that, if I’m right, the future of liberal societies may well hinge on.