The campus free speech struggles, and litigation

You may well not have heard of Mr Richard Spencer; at any rate I hadn’t, though I must admit I don’t think my life was the poorer for it. So, to introduce him to you, let me tell you that he is president of the National Policy Institute, an American white supremacist ‘think tank’. The reason why he is making an appearance in this blog post is because he has developed a habit of getting himself invited, or inviting himself, to universities to make speeches or take part in debates. His modus operandi appears to be that when these universities cancel his appearances, he sues them, claiming that his freedom of speech has been violated. Indeed he makes some money that way, as universities have been known to settle with him to escape his litigious attentions.

Let us not spend much time on Mr Spencer. This post has another dramatis persona, in the form of Mr Briscoe Cain. Mr Cain is a lawyer and a Republican member of the Texas House of Representatives. He is 32 years old, and I suspect he is on the look-out for higher things in the world of politics. He calls himself a conservative, and goodness knows what that actually means these days in the somewhat convoluted politics of the United States, but let’s say the label won’t please some students and others should he seek a university as a location for his oratory; which is what he has done.

Mr Cain appears to have been invited to address an audience at Texas Southern University (TSU). It is what is often referred to as a traditionally black university. Mr Cain was invited by a local chapter of the Federalist Society, an association that believes in the merits of ‘principles of limited government’, to deliver a speech on the campus of TSU. When the day came – and it was last week – a group of students from the ‘Black Lives Matter’ movement objected to his rhetoric, on the somewhat complicated grounds that Mr Cain was known to oppose public funding of sex reassignment surgery. The university cancelled the event, claiming that his invitation had been irregular since the Federalist Society was not appropriately registered and recognised administratively by TSU.

So, Mr Cain is now proposing to sue TSU and its president and maybe some students. I suspect that the whole thing will become a topic of interest to radio talk show hosts and others wanting to work up a nice lather of indignation at this latest egregious violation of freedom of speech, maybe in between arguing the case for removing broadcasting licences from TV stations that are hostile to the current US administration. Let’s just say that Mr Cain won’t be deprived of support from various commentators.

But here is the problem. You and I might not be booking our seats to hear Mr Cain. But as far as I can tell, the good Texas Representative is not on the same level of unacceptability as Mr Spencer, for whom I would certainly be more than reluctant to provide any kind of platform. Briscoe Cain is just an attention-seeking conservative Republican, and while I might not like his outlook I strongly believe in a competitive political forum in which all legitimate views should be given a hearing. According to media reports, Mr Cain’s attempts to speak were drowned out by student chants of ‘you don’t get a platform here’.

Right now universities in the United States, and some in the United Kingdom, are being criticised for their failure to protect the right to free speech; and some students may sometimes appear to limit free speech to speeches that they agree with. This is something we must be vigilant about. Unpopular views must indeed sometimes receive special protection, so that we never slip into a society in which oppression becomes easier because we have all paved the way for it.

I have no particular affection for Briscoe Cain. But he should have been allowed to speak.

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The politics of taking offence

Recently Jackie Walker, who was vice-chair of the Labour-aligned Momentum group, was first suspended from the Labour Party and then more recently was removed from her Momentum position because of remarks she made about Holocaust Memorial Day thought by many to be antisemitic. She had also indicated that she had never come across a definition of antisemitism that she ‘could work with’.

Amongst other things, these events prompted a very interesting discussion on Twitter between the journalist Iain Macwhirter and the President of NUS Scotland, Vonnie Sandlan. The issue in broad terms was how one could identify antisemitism and therefore address it through law and other appropriate means. Iain Macwhirter argued that this could not be done simply through ‘self-definition’ – i.e. by allowing members of a racial or other group to declare what offends them and what should therefore be out of bounds in open discourse. Vonnie Sandlan in turn argued that ‘I fundamentally believe that any action on racism or fascism should be led by, and defined by, those who experience it.’ If that latter approach were to hold, Macwhirter argued, the alleged victim of racism would always be right in their complaint.

In the context of a lot of recent debate about the rise of antisemitism in particular and experiences of oppression by various groups more generally (e.g. Islamophobia), and indeed of the extent or limits of debate where contributions are liable to offend someone, this has become a significant issue. It is a particularly complex question in universities, as it also involves discussion of what constitutes legitimate free speech and where we will constrain it because it creates offence. The battle lines in Britain have not yet been drawn to the same degree as in the United States, but there is little doubt that we will hear more about these matters over here too.

The continuing higher education struggle with freedom of speech

In this blog I have previously pointed out how, over recent decades, freedom of speech gradually became a controversial concept. Beginning with the campaign to deny free speech to ‘fascists’ in the 1960s and 1970s, we have more recently reached a point where anything said on a university campus liable to offend anyone of a sensitive nature is seen by some as unacceptable. This has not just affected general conversation and debate, but also how (and indeed whether) some literature should be taught.

Of course this has also produced a backlash, with some commentators claiming that intellectual integrity was at risk across all of higher education and that these trends were indicative of a tendency to mollycoddle students, or perhaps even in some cases to accept student bullying of those they disagree with (staff or other students).

One American university (Washington University in St Louis) has attempted to address this problem with a ‘statement of principle regarding freedom of expression’, affirming the university’s ‘unwavering commitment to freedom of expression and the free exchange of ideas.’ The statement goes on:

‘To protect the freedom of expression, the university should respect the expression of ideas, even those that are offensive or unpopular, by all members of the university community: students, staff, faculty, administration, and guests…

‘The university should avoid all forms of punitive action in response to the expression of ideas, and it should likewise ensure that no one misuses the authority conferred by the university to restrict such expression. However, we recognize that the free exchange of ideas requires civility and some measure of orderliness to be effective. Accordingly, the university should encourage civil discussion through positive norms and examples, responding to speech that offends groups and members of the university community not by interdiction but by encouraging further discussion and opportunities for education about contentious issues. Additionally, the university is justified in taking reasonable, unbiased actions to facilitate orderly discussion in certain settings, especially non-public ones. Unacceptably injurious or dangerous speech (meaning speech that harasses, defames, threatens, or unjustifiably intrudes on the privacy of specific persons) makes no positive contribution to the free exchange of ideas and can in fact discourage free discussion…

‘It is incumbent on the entire community of Washington University to remember that free and open discourse requires, in the words of Oliver Wendell Holmes, “not [only] free thought for those who agree with us, but freedom for the thought that we hate.”‘

Universities are not yet the intellectual wasteland that some critics suggest they are, but equally it is clear that the academic imperative to explore, analyse and argue is now somewhat at risk, and universities need to re-establish a sense of their mission. The initiative by Washington University should be applauded, and perhaps copied elsewhere.

The rise of the illiberal university?

In 1982 the German-American historian Konrad Jarausch published a fascinating book (Students, Society and Politics in Imperial Germany: the Rise of Academic Illiberalism) in which he charted the rush of Wilhelmine universities and academics into sentimental nationalism and xenophobic intolerance, a rush that later allowed Hitler to secure student support even before he had assumed political power. It was a trend to be found also in other European countries at the time. But in Germany it was remarkable that the stirrings of inward looking nationalism in academic and student circles came just as universities were becoming less elite, and in particular were less the property of the aristocracy. The new academic population gave its support to an uncritical nationalism and shut out contrary voices.

Today’s universities are not on the same trajectory, and yet they too are experiencing tremors of illiberalism.  A recent study published by the Higher Education Policy Institute has revealed that a significant majority of students in the UK (76 per cent) have some sympathy for so-called ‘no platform’ policies, under which certain speakers are banned from speaking on a campus because their views are deemed unpalatable. Curiously the same study revealed that 60 per cent of students think that universities should never limit free speech.

What do we make of that? Nick Hillman, the Director of the Institute, thinks that for some students ‘illiberalism appears to be a way of protecting liberalism.’ But a democratic and open society requires debate, and this requirement is not satisfied by the presentation solely of arguments that the majority approves of or likes. A liberal and tolerant society needs to be tested in robust argument or it will quickly become illiberal. Free speech is not ‘free’ at all if it excludes certain views.

Today’s university population will, much more still than in Wilhelmine Germany, supply the dominant leadership in all layers of society for the next generation, and its values will inform our future. A society that only ever wants to hear what it already believes is hugely vulnerable to something it may think it is warding off. It is time to recover the truly liberal university.

Universities and freedom of speech: one more time

For the second year running, the website spiked has published a particular university league table for the UK, providing ‘a detailed, annual insight into the state of free speech, debate and expression in the British academy.’ It presents universities in three categories: ‘red’ (universities that have ‘banned and actively censored ideas on campus’); amber (universities that have ‘chilled free speech through intervention’); and green (universities that have ‘a hands-off approach to free speech’). 115 institutions have been included.

By far the largest group consists of the ‘red’ universities, with 63 institutions. This includes some very familiar names, for example Oxford, LSE, and Queen’s in Ireland. Then there is the ‘amber’ group, with 40 universities including Cambridge, Aberdeen, York, and Ulster. The ‘green’ group of institutions that do not interfere with free speech has 12 universities, including my own RGU.

Oxford may be amongst the ‘red’ group, but its new Vice-Chancellor, Professor Louise Richardson, has indicated that she would like to adjust this culture. Speaking at her installation she suggested that students should ‘appreciate the value of engaging with ideas they find objectionable, trying through reason to change another’s mind, while always being open to changing their own.’

Universities may increasingly be at risk of seeing intellectual challenge as a disturbance of scholarship rather than its affirmation. Free speech is the guarantor of academic integrity and should never be compromised, where it is within the law. In that sense the rankings published by spiked may serve a useful purpose.

How fundamental is free speech fundamentalism?

The Charlie Hebdo atrocity has, particularly after the dust settled a little, prompted (as some might have expected) more detailed debate about the nature and limits of free speech in a liberal democratic society. Some of the debate, as we’ll get to in a moment, concerns free speech in an academic or university setting. But let us look first at the wider issues.

Immediately following the events in Paris there were demonstrations all over the world to reaffirm the right of journalists and commentators to offer their views, however uncomfortable or indeed offensive these might be, without having to fear for their lives. Je suis Charlie became the banner of this movement.

But not everyone joined in. The journalist Mehdi Hasan, writing in the New Statesman, questioned the credentials of ‘free speech fundamentalists’:

‘None of us believes in an untrammelled right to free speech. We all agree there are always going to be lines that, for the purposes of law and order, cannot be crossed; or for the purposes of taste and decency, should not be crossed.’

So is free speech protected only to the extent that it is not prohibited or discouraged, as that quote would suggest? If that were so, would it amount to much? And in particular, who is the arbiter of ‘taste and decency’? Is my objection to someone saying something enough to put that statement out of bounds? Do I have, as has been debated for a while now, a ‘right not to be offended’?

For those of us working in higher education, this raises particularly complex issues. Most of our institutions have, thankfully, students and staff from a large number of countries and cultures. While inviting them to learn and to engage with scholarship, we also try to present them with an hospitable and supportive environment. People away from home can be particularly vulnerable, and we should recognise that. But again, what does this mean when it comes to the substance of debate, in particular where that substance may be uncomfortable to some?

The website Spiked Online has now produced a league table of UK universities that ranks them according to their attitude to freedom of speech and to censorship. It suggests that 23 universities (including mine) have a ‘hands-off approach to free speech’, 45 have ‘chilled free speech through intervention’, and 47 have ‘banned and actively censored ideas on campus’. Those universities that do not, in the view of the compilers of this survey, support free speech have in many cases banned offensive speech or taken similar measures, such as excluding speakers from the campus where their views were not considered appropriate.

It is easy to feel that universities must not allow students and others to be made uncomfortable on the campus when others attack their beliefs or their ethos. On the other hand, universities are places where knowledge should be pursued regardless of whether that knowledge pleases or disturbs people. Censorship on the campus in one context may undermine scholarly integrity in another.

It is easy to agree with Mehdi Hasan, as I do, that some lines should not be crossed by considerate people. I would hate to offend someone’s deeply held convictions, assuming these convictions are within the law. But I would also hate to be part of something that confines academic investigation to things that do not bother anyone. Censorship on the campus is not something we should want to see grow, not least because the expression and the challenging of our opinions and views is, fundamentally, the thing that matters most in scholarship.

The perils of free speech in the academy

As I have suggested previously in this blog, universities can have a hard time with the concept of freedom of speech. On the one hand, it is one of the key liberal intellectual values, and therefore something the academy will want to prize. On the other hand, those who exercise it may have less than wholesome messages to share, some of which may seriously offend liberal values. When this happens, the university can get nervous about protecting the rights of the people concerned.

Take the latest example. A graduate of Princeton University, Susan Patton, wrote a letter to the Daily Princetonian student newspaper in which she exhorted female students to use their time in the university wisely; by which she meant, get a husband. I’m not going to get into the details of what she said – if you want, you can read it here – but it would be fair to say that her advice, and more particularly the elaboration of that advice, wouldn’t be likely to go down well with anyone who believes in a modern concept of gender equality. Indeed many – myself included – might find it quite offensive.

In fact Ms Patton’s letter has gone viral, and so have the opinions about it, few of them supportive; though amazingly there are exceptions. But the drift of some of the online commentary has been that such views should not find a place in a university publication. For what it’s worth, the Daily Princetonian, finding itself suddenly on the world stage and the subject of attention in the controversy, probably wouldn’t agree, not even (indeed maybe particularly not) with hindsight.

But just while we’re on controversial speech in an academic setting, there have been other very recent examples. Almost certainly the most offensive we’re likely to find in recent contributions in the academy was the suggestion by one Steven Landsburg, professor at the University of Rochester, that if a woman were raped while unconscious she might suffer ‘no direct physical harm’; so he questions whether this would be a proper concern of the law at all. Again, outrage followed the statement, with questions raised about whether the university could in conscience continue to employ him.

These are not easy issues to address. If freedom of speech is an important civilised value – which it undoubtedly is – should it protect those whose intentions are anything but civilised? There are of course statements that the law will never protect, notwithstanding freedom of speech: exhortations to commit crimes, for example, or assertions that are fraudulent. But should it stop short of protecting those that are offensive? And more particularly, should universities give platform space to such opinions?

While I occasionally find myself grappling with this kind of issue, in the end we cannot be censors, because what we find offensive may just offend us, but be obviously correct to others. The academy has to let all this live and should rely on intellectual discourse and analysis to deal with the issues raised. If we compromise on any part of the element of freedom in free speech, we have fatally compromised the integrity of a free society. And we should not do that, however awful the statements we are hearing.

The great free speech dilemma

So here is the news today: Trinity College Dublin has announced that it will not allow the leader of the far-right British National Party, Nick Griffin, to visit the college to take part in a debate on immigration at the University Philosophical Society. The BNP leader had been invited to the debate, but after students groups (including one named ‘Students Against Fascism’) had said they would obstruct the visit the invitation was withdrawn. In a statement the College said:

‘The University Philosophical Society and Trinity College Dublin have decided to withdraw the invitation to Mr Nick Griffin, leader of the British National Party. Mr Griffin was invited by the Philosophical Society to participate in a debate on October 20th next. After careful consideration of the matter, involving a series of discussions between the Philosophical Society’s officers and the College and taking all safety considerations into account, the decision was taken today (October 14th). The College encourages balanced debate and freedom of speech at all times. It is a very important part of academic life, particularly among students and their societies. As part of the education of our students, the College also promotes the autonomy and self governance of student societies.  These are important principles observed by the College. Following careful review of operational and safety issues, the Philosophical Society and the College are now not satisfied that the general safety and well being of staff and students can be guaranteed. Access to the College will not be given to Mr Griffin or members of the BNP.’

So what should we make of this? Let me first stress that I consider Mr Griffin’s views, and for that matter his party, to be odious. The party appeals to the worst instincts of its potential voters, and its activities undermine social cohesion in parts of England. Thankfully it has not managed to gain much traction in Scotland.

But bad and all though it is, should we curtail freedom of speech for its leaders and members? I remember an incident while I was a student when the participation of a conservative politician in a debate was made impossible by a group of students shouting ‘No free speech for Fascists’. The politician in question was undoubtedly not progressive, but he was hardly a fascist, and in consequences it seemed to me that the protestors were potentially more dangerous than the person they were attacking. Indeed the same group threatened to obstruct a visit by the British Labour politician Denis Healey, arguing that he too was a ‘Fascist’.

Freedom of speech is arguably the most important civil right. Without it no democracy can survive. But it doesn’t really exist if it is conditional, and in the end we must argue that all people, including those with odious views, must be allowed to speak provided they do so within the law. Otherwise we may be defending something that is already lost.

I am not criticising Trinity College Dublin – the College had to take a decision based on the situation as they found it. But the fact that they were forced to do this is a matter of regret. What is more, Nick Griffin is not a persuasive speaker; he would easily have been shown in the debate to have no views worth admiring. The opportunity to showcase the superiority of the liberal democratic tradition was missed.

Speaking freely

Many years ago, when I was an undergraduate student, I attended a debate at an Irish university. One of the speakers that night was to be a British politician who was a supporter of the former Conservative (and just turned Unionist) Enoch Powell. Just as the politician in question rose to speak, a group of students jumped up and started shouting, ‘no free speech for Fascists!’ This went on with rising volume, and in the end the man was unable to begin his speech, and the debate ended in confusion. The group concerned – which I believe (though I may be misremembering this) was organised by the ‘Communist Party of Ireland (Marxist-Leninist)’ – expressed itself satisfied.

Different cause, same tactics: as many will know, a UK academic, Professor Len Doyal, was recently prevented from delivering a speech during a debate at the UCC university hospital in Cork by a small group of protesters, who objected to his support for euthanasia. This time the chant was, apparently, the Rosary. At any rate Professor Doyal was unable to speak and had to be escorted from the hall. And just to complete the picture, some time ago the British revisionist historian David Irving was unable to deliver a speech in NUI Galway in the face of major protests.

I don’t propose to comment here on the causes espoused by any of these speakers. My question is what the status of free speech should be in today’s society, and if there are limits, how do we identify these and who decides.

Freedom of speech is almost certainly the cornerstone of democracy. The right and the ability to say what we want to say, however uncomfortable it may be and whatever the consequences, is indispensable to freedom more generally. All dictators will seek to restrict free speech and the free availability of uncensored information as their very first measure.

The problem with free speech is that some groups in society who are strongly committed to their own policies or messages easily become allergic to  freedom of speech when exercised by those who oppose them.  The ‘no free speech for Fascists’ slogan was a convenient basis, occasionally, for seeking censorship of a whole array of views that were anywhere on the political spectrum from just right of the extreme left; I remember it being argued once that Denis Healey (then a Labour Minister in the UK Callaghan government in the 1970s) should be prevented from speaking as he was a ‘Fascist’. And I’m afraid that, whatever my views may be on euthanasia (and I have very strong reservations about it), ‘Youth Defence‘ has other targets in its list of demons that I would find worthy of support. or at least of dispassionate analysis. I would cvertainly not want this group to determine what may or may not be debated in Ireland.

As the opening examples illustrate, these skirmishes are more often than not fought out on a university campus. Universities have a particular obligation to ensure the availability and dissemination of information and views. And yet they are also guardians of values such as tolerance and respect for minority rights, some of which are resisted by those seeking to exercise their freedom of speech.

So how do we overcome all these contradictions and dilemmas? I think it is my view that if we have any confidence at all in the maturity and durability of our democracy we should allow freedom of speech without restriction. I say this in part because once we restrict this right, we are bound to be on a slippery slope. If we allow, say,  Youth Defence to set the agenda on euthanasia, we may be suggesting to them that they can do the same on other topics, and free speech becomes whatever the various bullies out there allow others to say. We must accept that freedom of speech will sometimes protect those who are saying objectionable things (including support for euthanasia), but we should feel that our society is strong enough not to be seduced by them. I believe that we should always err on the side of free speech.

Should we be politically correct?

The term ‘political correctness’ actually has a long pedigree. It is hard to be sure where it originated, though we know that Adam Smith used the term (in a critical sense) in his book The Wealth of Nations in 1776. It was used in Stalin’s Russia and Mao’s China, and then by European radicals in the 1960s – but at that point, gradually, it began to be used ironically rather than approvingly. The term became famous from the 1980s, by which point it was adopted by conservatives to pour scorn on the perceived political purity of the dogmatic left; and as there were plenty of examples of the latter, the term stuck.

There seems to me to be little doubt that the approach to speech and discourse in the 1990s by many was quite simply stupid. I was also regularly dismayed at that time by the apparent need of progressive radicals to sugar-coat everything, so that nobody would ever be offended or challenged. The humorous lists circulating at the time of euphemisms for everything negative or unfortunate (a criminal was ‘ethically challenged’, a disabled person was ‘otherwise enabled’, and so on) were funny because they were also in part true – people did use such terms. And like many other people, I could feel a strong sense of relief when people rebelled against that and produced highly politically incorrect contributions to public debate.

It is sometimes argued that the adoption of the expression by the political right as a term of abuse for those on the left was extraordinarily successful, in the sense that it made it politically incorrect to be politically correct. But not everything about the movement to become more inclusive in public speech was bad. I for one welcome the fact that we almost never allow anyone to use the pronoun ‘he’ as a reference to humanity in general, and that we have stopped using insensitive terms for people with various handicaps. As in many things in life, it is best to observe a healthy and tolerant balance.

Universities in particular need on the one hand to support and protect free speech, but also to ensure that public discourse does not become a vehicle for judgement and discrimination. So while I am glad that the old political correctness is not what we aspire to, I hope we will not lose the benefits which, at least in some respects and contexts, it produced for us.