Controversial speakers and student protests against them pose a perennial question for universities: How and to what extent should freedom of speech be protected on university campuses?
In this often intemperate debate, former Chief Justice Robert French’s recent intervention brings a welcome balanced tone.
Mr French says that while universities don’t have a legal obligation to provide a forum to all speakers there “should be a very high threshold to be overcome before universities, academics or student bodies or groups seek to prevent speech on campus by reference to its content … If the threshold is set too low in the interests of the feelings of the university community and applies an extended concept of ‘safety’ in support of restrictions, the reputation of universities in the wider community which they serve might be at risk”.
While he ultimately doesn’t recommend it, he warns that “legislative intervention imposing protective rules is a possibility”.
The former Chief Justice is right. Universities have a strong obligation to promote freedom of speech – even highly controversial speech – on campus. Universities have a special role to play in liberal democracies. They are sites for the advancement and dissemination of knowledge.
For students, they are places to acquire knowledge and the skills essential to become engaged citizens and leaders. Critical analysis and argumentative skills allow facts to be separated from opinion, and ideas to be considered and assessed.
And these skills are all the more important as we navigate the digital age.
But the nature of this responsibility is more complex than presented. It varies according to the context in which the speech occurs and is accompanied by corresponding obligations to create an environment in which speakers are held to account for their ideas and challenged by competing ideas.
This debate would benefit from a clearer distinction between the concepts of ‘academic freedom’ and ‘freedom of speech’.
As a corollary of their role in advancing and disseminating knowledge, academics are said to have “academic freedom” – the freedom of academics to conduct their teaching, research and publishing activities without fear of intrusion or retribution by powers such as university governance, the state, or powerful private actors.
Academic freedom entails responsibilities. In carrying out their work academics must comply with discipline-specific methods and meet scholarly standards related to accuracy, completeness and relevance.
Closely related to this concept is the idea of the ‘institutional autonomy’ of universities.
For the same reasons that academics need freedom to conduct their research and teaching, universities need institutional autonomy. It’s essential, for instance, that universities are not beholden to the political agenda of governments, the interests of wealthy individuals or corporations.
Existing alongside these questions of academic freedom and institutional autonomy is the question of freedom of speech in the university, extending well beyond teaching and research to the university’s ‘town square’.
Open and robust public debate on campus is important for the same reasons it’s important in society more generally: including allowing self-expression and ensuring that democratic governments are held to account.
But on university campuses it is also essential to consider how freedom of speech fosters the special mission of the university to educate and promote the search for truth.
Turning then to consider when and how speakers are invited on to campuses and how student protests are treated, there are several important principles to bear in mind.
First, it is worth recalling – in the light of the occasional assumption to the contrary – that the general laws place limitations on freedom of expression. Importantly, both universities and visitors to them aren’t immune from these laws.
The laws of defamation must be respected on campus, as must the prohibitions on vilification on racial or other grounds in state and federal laws. Laws protecting freedom of expression – including constitutional protection for freedom of political communication – are also applicable on university campuses and limit the extent to which governments can interfere with freedom of expression.
But turning from the general law to the special context of universities, it’s necessary to distinguish the different contexts in which speech occurs in universities.
Some places within universities are more public than others.
A residential college that serves as a student’s home on campus is quite different from a classroom, which is in turn different from a public space – like a lecture theatre, lawn or courtyard.
The protection for freedom of expression should be correspondingly greater the more public the forum.
By contrast, in more private spaces on universities it may be appropriate to take greater measures to protect students or staff from offence or vilification. A controversial speaker on the Library Lawn is deserving of a very high degree of protection, while the distribution of offensive material in a University college is not.
Secondly, it’s important to identify the varying degrees of control that university administrators have over events on campus.
Universities are complex institutions and multiple bodies may be responsible for inviting speakers on to campus. In some circumstances, university administrators have little control over the invitee, the topic of the discussion or the standards according to which it is conducted when student groups affiliated with the university issue invitations to external speakers.
Universities have even less control if individuals or organisations hire the university venues, even though they have no real link to the university.
The standards applicable to the conduct of public debate will be at their highest when a speaker is invited or an event is organised in a manner that is close to the core of the university – by a faculty, a university official or institute. In such cases, high standards should apply both to the audience and the speaker.
Controversial speakers are to be welcomed even where their views may upset and offend. However, it’s also reasonable – and may even be required – for universities to ensure that speakers respect scholarly standards, that opposing arguments are addressed, and the opportunity given for the audience to ask questions or make comments.
Student protest – even highly vitriolic protest – is to be permitted and steps should be taken both to facilitate the protest and to ensure the event is not disrupted.
As universities become more diverse places, controversies are sure to proliferate.
Universities are best placed to respond if they anticipate problems with some clear thinking on rights and responsibilities, and about the contexts in which they arise.
The best response, will involve universities acting both as the protectors of freedom of speech while also taking seriously their responsibility to foster the kind of academic climate in which debate is also balanced and fair.
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