As free speech on campus flares up in the media, it is important to understand the nuances of the debate. How do universities foster an inclusive campus that balances the expression rights of different members of the community?
The making of a crisis
Recent media reports give the impression that disputes about free speech on Canadian university campuses are increasing in number and severity. It is possible, though, that we are simply hearing about these disputes more often and that they are no more frequent now than they were a decade ago.
Free speech disputes, particularly those occurring on US campuses, may be receiving greater attention in the media because they are seen as skirmishes in a larger culture war between polarized left-wing and right-wing political positions. Some of these campus disputes seem to be manufactured by those who are interested in framing political disagreement in these grand terms, and in exposing universities as centres of political correctness that are hostile to conservative views.
The recent announcement by the Ontario government that all universities and colleges in the province will be required to create free speech policies that must include, among other elements, “principles based on the University of Chicago Statement of Principles of Freedom of Expression” sends the misleading message that there is a free speech crisis on university campuses and that it is necessary for the government to intervene in the affairs of universities to address this.
Adopting the Chicago Principles would make US First Amendment doctrine the standard for the protection of speech on Ontario campuses. If the provincial government thinks these principles are a good model for Ontario universities, it does not understand free speech law in Canada or the complex speech environment of the university.
Free speech and its limits
In the general public sphere, expression is subject to relatively few legal restrictions. Canadian law includes “content” restrictions on obscenity, hate speech, defamation, and false advertising. Notably, the Criminal Code prohibits the incitement of hatred against an identifiable group, and the “wilful promotion of hatred” against such a group. Hate speech is also restricted by some provincial human rights codes, although not the Ontario code. There are also laws that regulate the time or location at which expression may occur and are concerned with coordinating expression with other activities in public spaces.
Expression may be subject to greater limits when it occurs in a particular institutional setting. Racial generalizations and insults may not breach the criminal ban on hate speech (which catches only a narrow category of extreme speech), but when they occur in the workplace or in schools they may be considered unlawful harassment or discrimination under anti-discrimination laws. Employees in a workplace are a captive audience who cannot easily avoid repeated insults from co-workers or managers. Different standards of civility or respect apply because the workplace is both closed and hierarchical and because it has a particular function that may be undermined by these forms of speech. The workplace is not a democratic forum, a place of free and open discourse, even if employees retain expression rights that are compatible with its function.
The university’s mission and the protection of academic freedom
The Canadian courts have held that universities are not government actors subject to the Charter of Rights—although a few lower courts have suggested that some forms of coercive university action may be subject to the Charter. Whether or not a university is subject to the Charter and the constitutional obligation to respect the right to freedom of expression, a university is an institution in which the free exchange of ideas and information is important and ought to be protected.
The university is not simply a public forum, like the streets and parks; nor is it an ordinary workplace or place of business. It is a place of learning. Its purpose is the discovery and dissemination of knowledge through research and teaching. This purpose makes the university different from other institutions and workplaces, a difference that is reflected in an institutional commitment to academic freedom—the freedom to explore and advance ideas and information (that may sometimes be unconventional and controversial).
Academic freedom is rooted in the university’s research and teaching mission, and it carries certain responsibilities and is subject to constraints. Notably, research funding and publication, and professional advancement within the institution, are subject to review based on professional standards.
The university’s purpose also requires that faculty and students adhere to certain standards of communicative engagement—and in particular that members of the academic community be treated as interlocutors, as conversation partners, who should be addressed and heard. The objection to sexist or racist speech on campus is not simply that it is irrational, sometimes vitriolic, and unlikely to contribute to thoughtful discourse; it is also that this speech seeks to undermine the standing of some members of a community dedicated to learning and scholarship.
The university’s purpose also requires that faculty and students adhere to certain standards of communicative engagement.
It is often said that academic freedom and freedom of speech are not the same thing and should not be conflated. If we understand free speech (or freedom of expression) as a constitutional right that is subject to few, if any, limits, then it is important to make such a distinction. But if we can separate freedom of expression from its constitutional frame (and from the libertarian interpretation given to it by US courts) we may be more comfortable recognizing that it is an important value and practice throughout society and that its character and scope are shaped by the particular institutional context in which individuals interact and converse. On this view, academic freedom may be the shape free speech takes within the context of the university and its mission.
The many sites of conversation
The university is composed of many sites or forums, each contributing in a particular way to the university’s larger mission. The rules of speech will be different in each.
Speech may be subject to significant limits in the classroom or meeting room, determining who speaks and when, and the manner and subject of the speech. We expect exchanges in the classroom to be respectful, because the classroom is a place of learning based on thoughtful discussion, because the members of the class are in an ongoing relationship, because they are part of a captive audience, and because there is a hierarchy in the classroom based on the teacher’s authority.
The rules of speech may also be stricter in a university residence. Individuals should be free from discriminatory speech in their living environment. The university is also a workplace, with many employees who are engaged in administrative tasks, secretarial support, and infrastructure maintenance. University employees should be protected from degrading or harassing speech in the same way that workers in other offices or workplaces are protected.
But what about speech outside the classroom or meeting room or residence—speech that is part of a political event in a common or open space or an extra-curricular panel or talk in a designated space? Should speech that occurs in these spaces on campus be subject to rules of civility or respect enforced by the university that are stricter than those applied to general public discourse?
The advancement of the university’s educational purpose or mission requires free inquiry and open debate; but there can sometimes be a tension between the freedom to explore new ideas and challenge orthodoxies, and the recognition or inclusion of others in the academic community as members and interlocutors.
Speech in common spaces
The right of a student, staff, or faculty member to express themselves in the common spaces of the university should be similar, although perhaps not identical to an individual’s right to communicate in a public space such as a park. These common spaces on campus are still part of a workplace and educational environment. Students and others should be protected from racist insults or sexual comments when moving through the campus, particularly when we recall that university students may still be coming to grips with their identity and place in the world.
Common spaces on campus are still part of a workplace and educational environment.
Individuals should not ordinarily be protected from messages they do not want to hear—messages they regard as wrong or hurtful. But in the common spaces of the campus, students may find it difficult to avoid exposure to speech they experience as hurtful or degrading.
This is what is at issue in the controversy about graphic demonstrations on campus opposing abortion. Whether we think such speech should be confined to easily avoided locations may depend on whether we think the negative reaction to these images rests on a disagreement with the general message of the display, or on a visceral or emotional reaction to the imagery (recognizing that it may be difficult to distinguish between them).
The issue is different in the case of a speaker who is invited by a campus group to give an extra-curricular talk. No one is required to attend such a talk and so, whatever the speaker may have to say, no one can complain that they are being directly and unavoidably confronted with offensive images or hurtful assertions. Should the university be able to shut down racist or bigoted speech that is not so extreme as to breach hate speech law but still may be understood as questioning or undermining the standing of the members of certain groups?
There are several reasons why it may be impractical for a university to ban a broader category of bigoted speech at extra-curricular events than is caught by the existing legal restrictions on hate speech. First, there is the difficulty in defining the scope of such a ban. The courts already struggle to determine when speech is so extreme that it breaches either the criminal or human rights code ban on hate speech.
Second, university administrators may be tempted to define the scope of unprotected speech quite broadly to avoid visible strife on campus. The desire to maintain the institution’s public image may lead administrators to improperly shut down expression that falls within the bounds of academic freedom or freedom of expression.
What about an invited speaker who has in the past expressed racist views? Hate speech laws apply only after a court has determined that a speaker has expressed hateful views—in other words, these laws apply only after the speech has taken place. Should a university be able to exclude a speaker because it reasonably believes they are intending to express views that are hateful and unlawful?
Conservative provocateur and self-promoter Ann Coulter, who was invited to speak at the University of Ottawa, has said plenty of things in her career that, if said in Canada, would likely breach our hate speech laws. It seemed entirely appropriate then that the President of the University of Ottawa wrote to her in advance of her talk to let her know that Canada has hate speech laws and that she would be expected to respect those laws during her talk.
Interestingly, the Ontario government, in announcing its plan to require universities to produce a free speech policy, said, “The policy will not only protect free speech but ensure that hate speech, discrimination and other illegal forms of speech are not allowed on campus.” Leaving aside the question of what the government means here by “discrimination” as an illegal form of speech, this statement might be read as calling on universities to prevent hate speech from occurring—in other words, to ban speakers such as Ann Coulter and Faith Goldy. Certainly, this is not what the government intends, but it does reveal the muddled thinking that occurs when a government intervenes in the affairs of universities for contrived, political reasons.
University administrators have struggled with how to deal with counter-demonstrations. Such demonstrations occur when some members of the university community believe that an invited speaker has, or will, express views that are bigoted or hurtful. Even if they are not required to attend the talk, these individuals may feel they have an interest in what happens on campus. Universities are not open to all speakers. Some speakers are invited and others are not. Members of the university community are within their rights to argue that someone should not have been invited because their views are foolish or offensive or racist—particularly if universities rely only on criminal law standards to determine when an individual should be prevented from speaking, or prosecuted after having spoken.
However, there have been a few occasions when protestors on Canadian campuses have sought to prevent a speaker from addressing an audience. If the speaker’s expression does not cross the line into unlawful racist or sexist speech (which is for the university and not individual members to decide) then a counter-protest, while permitted, must not interfere with the event. While the university may be concerned about the reaction spinning out of control and leading to violence, it must not respond by suppressing the primary speech (or the counter-speech) except in extraordinary circumstances—when no other response is practically available to prevent violence.
Universities have sometimes required the sponsors of controversial speakers to bear additional security costs for the event—when they anticipate that there may be an attempt by others to disrupt the talk. Security costs, though, serve as a device to exclude controversial speakers. They are a form of censorship—an example of what is sometimes referred to in the US as the “heckler’s veto”. A threat of disruption by those opposed to the speaker cannot be a reason for the university to suppress the speech either directly or through the imposition of oppressive security costs.
The university as an enclave of free speech
A commitment to freedom of expression means that an individual must be free to speak to others and to hear what others have to say without interference from the state. Importantly, the listener, and not the speaker, is seen as responsible for the views they adopt and the actions they take, whether these actions occur because they agree or disagree with the speaker’s message.
A commitment to freedom of expression means that an individual must be free to speak to others and to hear what others have to say without interference from the state.
Underlying the public commitment to freedom of expression is the belief that humans are substantially rational beings capable of evaluating the claims of others, and the assumption that public discourse is open to a wide range of competing views that may be assessed by the audience. The claim that bad speech should not be censored, but instead answered by better speech, depends on both of these assumptions—the reasonableness of human judgment and the availability of competing perspectives.
But these beliefs or assumptions seem more and more difficult to maintain. Audience fragmentation (and the echo chamber effect) and the absence of filters and systems of accountability on internet platforms and other media have contributed to the decline of reason-based argument and thoughtful, respectful engagement. Public discourse is becoming increasingly polarized. When there is engagement on an issue, it is often confrontational, uncivil, and unconcerned with persuading others or understanding their views.
Canadian universities can resist attempts to bring the culture wars onto campus as long as they remain committed to an idea of free speech that protects the individual’s freedom to explore and advance ideas but expects these individuals to do so in a way that respects others in the university as members of an academic community who also deserve to be heard. Universities can then focus their attention on some of the more serious limits on student learning and academic research, including the erosion of government funding, high student fees, and their reliance on private funding.