Tone Deaf

Culture and tone trump rules when it comes to free speech on campus, writes IPA Research Fellow and National Manager of Generation Liberty Brianna McKee.

If freedom of speech is freedom of reach, then we have reached peak freedom of speech. At no other time in human history have ideas been able to spread as quickly and freely. However, this golden age of unfettered discourse, gifted to us by social media platforms, could easily be snatched away. This is because the capacity for censorship also has never been greater.

The primary bulwark against cancel culture today is billionaire entrepreneur Elon Musk. Of the bosses of big-tech platforms, he alone has shown a willingness to fight against governments which are moving to police online content. Unfortunately, Australia is in the lead in the censorship space, with the Labor government’s failed misinformation and disinformation bill the most recent attempt to force social media companies to restrict content it dislikes. While the Institute of Public Affairs welcomed the failure of this legislation—and is immensely proud of the part it played in defeating the bill—the stakes remain high. Free speech is always on the line and with it the future of a free world, which relies upon the clash of ideas and open debate for its ongoing success.

Free speech on university campuses is particularly important as this is where the world view, values, and core beliefs of future leaders are shaped and formed. With education and public debate increasingly moving online, laws censoring the internet represent not just an attack on expression but an attack on learning. Cass R. Sunstein’s book, Campus Free Speech: A Pocket Guide, contains important principles for the debate around freedom of speech and what reasonable limitations can be imposed by universities. This debate is more important than ever because the technology which has allowed free speech to flourish can just as easily be used to silence us.

THE MISSION OF EDUCATION

The mission of a university as defined in 1967 by the University of Chicago’s Kalven Committee is the “discovery, improvement and dissemination of knowledge”. Consequently, the university’s first allegiance is to learning, and free speech is fundamental to that purpose.

Neutrality is essential for viewpoint diversity.

This is a key starting point for Sunstein who argues that learning, along with self-government and autonomy, rely upon the principles of freedom. These include freedom of association, freedom of thought, and freedom of speech. These principles are closely interlinked. When individuals gather online or in person to engage in public discourse, they offer their own ideas and engage with the ideas of others. In this way they are exposed to new information and arguments that may cause them to change their views—or they may change the views of others. This reciprocal process is an exercise in freedom of thought.

When it comes to learning, universities should seek to facilitate debate and discussion by prioritising freedom of speech. Protecting freedom of speech is only important if people hold opposing views; there is no need for special protections if everyone agrees.

If freedom of speech is to mean anything, then you must have viewpoint diversity. Sunstein concludes that if universities “do not allow a lot of free speech, there will not be enough learning”.

Sunstein argues that neutrality for universities is essential for viewpoint diversity. “If the university is to perform its social role, it cannot, realistically speaking, be ‘the critic’,” he writes. That is because if an institution clearly embraces particular positions, it is difficult for members of the university community to reject them. Today universities across the Western world are increasingly adopting ideological positions in formal policy documents, and Australian institutions are no exception. Across our 42 universities in 2023 there were 77 strategic commitments pledging allegiance to Indigenous issues, gender equality, and sustainability.

Sunstein says there are three key problems that occur when universities take a side on specific debates. The first is ‘selectivity’. It is the role of a university to facilitate debate, not champion a particular side of the debate. If a university supports or condemns an action by one entity, why won’t it condemn a similar action by another entity? Selectivity can crush discussion and have a chilling effect on free speech.

The second problem is ‘internal dispute’. If a university takes a side on a contentious issue, it is likely there will be many students and staff that disagree. Sunstein says such people might feel “discredited and silenced” by the university, especially because in a sense the university would be “purporting to speak in their name”. The third problem is ‘self-interest’. Taking a position on controversial issues will jeopardise key relationships. Public officials, donors, students, and alumni may have different views and will be alienated by the university taking a position in direct conflict with their own. A firm rule against taking official positions would save the university a lot of trouble. Perhaps most importantly, universities which embrace an ideological position as an institutional goal are at odds with the principles of free inquiry. A university cannot be dedicated to one side of an argument and remain open to challenging perspectives. Sunstein concludes it is not for a university to make judgements; rather the university’s community of individuals should be making judgements for themselves and contesting ideas with which they disagree in open debate.

WELLBEING VERSES SPEECH

Sunstein’s approach to maximising free speech permits the university community to say things that are disturbing, jarring, horrifying, enraging, scary, and disruptive. He asserts that the mission of education cannot be to license restrictions on speech—even speech that is threatening. The limits are simple. Speech should be allowed unless it promotes violence or the incitement of violence, or it obstructs or interferes with the freedom of others to express their views.

Ironically, many free speech policies restrict speech.

This stands in stark contrast to Australian universities which define harm broadly and prioritise wellbeing over free speech. The Institute of Public Affairs’ Free Speech On Campus Audit 2023 found 90 per cent of Australia’s universities have policies that are hostile to free speech. The total hostility score across all universities increased by 116 per cent between 2016 and 2023. There are three main types of policies that directly limit freedom of speech in the Australian tertiary context. These are harassment and bullying policies, conduct and misconduct policies, and social media and IT policies. They often forbid offensive behaviour, hurt feelings, or unwelcome comments, and are often worded in a vague and broad manner. They encourage students and academics to avoid airing potentially controversial ideas and can be used to punish people for expressing an opinion.

In 2023, Australian universities were required by the Federal government to implement a policy protecting speech using the French Model Code as a template. The Model Code was developed by former Chief Justice of the High Court Robert French AC as part of a review which he led into the state of free speech on university campuses. He noted that action which had been taken by universities against free expression could have a “chilling effect” on the exercise of freedom of speech. More importantly, French said overbroad rules and policies were “rife” on university campuses and made the sector an “easy target” for criticism.

The French Model Code sought to address these issues, but in reality the Code has done more harm than good. This is because French’s definition of “the duty to foster the wellbeing of staff and students” includes “speech which a reasonable person would regard, in the circumstances, as likely to humiliate or intimidate”. Humiliation is an inherently subjective term that can be interpreted broadly.

French, ironically, seems to fall into the very trap he encourages universities to avoid. Section 18C of the Racial Discrimination Act 1975 makes it unlawful to humiliate “because of the race, colour, national or ethnic origin of the other person or group”. The French Model Code goes further, by forbidding any speech that humiliates. The outcome is that many of the free speech policies introduced by Australian universities include caveats such as the humiliation clause, ironically restricting the very speech they were designed to protect.

Sunstein acknowledges that the key problem here is disagreement over the definition of harm. For Australian universities the bar is low and can include offense and humiliation as determined subjectively by the victim rather than an objective assessment of the behaviour of the alleged offender. For Sunstein the bar is high, and harm is determined not by feelings but by the real threat of physical injury.

RESTRICTIONS ON SPEECH

According to Sunstein, three types of restrictions can be placed on speech. First, there are viewpoint-based restrictions which punish people because of the view they express. An example would be a policy that forbids students from criticising the vice chancellor. Second, there are content-based restrictions which would include a rule that history professors must teach history, not geometry. Third, there are content-neutral restrictions which are time, place, and manner restrictions. This would include a ban on loud talking during sleeping hours.

Good norms are needed for productive exchanges.

Sunstein argues that viewpoint-based restrictions require a heavy burden of justification. You cannot allow praise for the vice chancellor but forbid criticism. However, you should forbid someone from saying “kill that man” while allowing someone to say “don’t kill that man.”

However, in most cases, it is the threat of violence that makes the viewpoint problematic to the point where it needs to be restricted. The bar for viewpoint-based restrictions is high. Content-based restrictions are more reasonable in the education space. Sunstein asserts:

A state cannot forbid people from discussing civil rights or an ongoing war effort. But the heavy burden of justification can sometimes be met in the educational setting, not least because education necessarily involves the establishment of content (and so content-based judgements).

Content-neutral restrictions must be subject to a balancing test to ensure they are not abused. It is easy to see how universities could apply these restrictions unreasonably, so they have the effect of impeding expression. One example would be a ban on protests on campus except between 3am and 4am. The balancing test depends on four questions:

• How serious is the problem addressed by the restriction?
• To what extent will the restriction regulate speech?
• Are there other available channels of communication?
• Is the restriction narrowly tailored?

When university administrators act to restrict speech using content-neutral restrictions, they should justify their actions by asking themselves these questions. Ensuring harm is defined narrowly is key to protecting speech on campus.

Because of their unique mission some public institutions can regulate the speech of their employees in a public forum in a way that universities should not because of their distinct mission, which is learning. For example, the Department of Defence can forbid speech which undermines high-level officials involved in national security. This is justified on the basis that the security of the nation is more important than the personal freedom of one individual. The mission of the defence department—the physical safety of the population—could be placed at risk if officials discuss sensitive data or undermine a particular position taken by the department.

Staff and students should be free from these types of rules and should be able to criticise the institution at which they work or study. However, there are times when universities can discriminate against certain content and viewpoints. For example, teachers can discriminate against content and fail a student who writes an essay on the fall of Rome when they have been asked to write about the Spanish Inquisition. Sunstein says this is because “the education enterprise permits institutions to impose restrictions that would not be acceptable if imposed by the national government”. The government should not be able to punish an individual for arguing that men are better than women or that the Earth is flat.

However, restrictions on speech must always serve the mission of the university, just as the mission of the defence department guides what can and cannot be said by their officials.

PROMOTE NORMS

Universities seeking to ensure constructive debate and disagreement may seek to regulate speech. It is true that shouting, yelling, and insults are not generally helpful in ensuring a productive conversation. However, a better way to facilitate this than rules is the promotion of norms that are modelled by staff and followed by students, but not enforced. Good norms are needed for productive exchanges, but do not raise concerns around free speech. As noted by Sunstein, “norms that are not enforced by law cannot offend it”. When speech is hurtful or offensive, encouraging adherence to norms is often the best response.

Norms are powerful and can have a positive or negative effect on personal freedom. They can promote debate or lead to self-censorship. A level of self-censorship is necessary for the healthy functioning of society. However, if critical debates are not happening at university, it is likely due to rules and the norms which they inform—undermining free speech. Nevertheless, norms are better than hard and fast rules when it comes to facilitating discussion.

Norms are closely related to culture. Significantly, Former Justice French pointed to the culture of an institution as the key factor in determining the degree to which free speech and academic freedom is exercised:

A culture powerfully predisposed to the exercise of freedom of speech and academic freedom is ultimately a more effective protection than the most tightly drawn rule. A culture not so predisposed will undermine the most emphatic statement of principles.

SET THE RIGHT TONE

What is true of both government and universities is that they wield great political and cultural power, and this power can be easily abused. It is always those who are not in power who are the greatest supporters of free speech while those in power tend to want to impose their views on others. Increasingly, universities have sacrificed their neutrality to take a stand on certain topics and this has come at the expense of their commitment to educate. Since debate and discussion are so central to the university experience, vice chancellors must ensure that the expanding definition of harm does not result in a situation where speech is unreasonably restricted. Sunstein’s position is broadly that in most cases only the real threat of violence can justify restrictions on speech.

While universities should not take a stand on most debates, they can and should advocate for free speech because it is central to their mission. Amid calls for online censorship laws, it has been disappointing to see universities such as the Royal Melbourne Institute of Technology (RMIT) align themselves with partisan “fact checking” organisations rather than adopting a firm position on free speech. A university should not be the critic, it should support a community of critics.

Finally, the value of norms cannot be underestimated. Less is more in the free speech space. It is far more important that a university does not have rules restricting speech. More powerful than any rule is a culture that elevates freedom of speech. It is time for vice chancellors and faculty staff to help set that tone in our universities.

The IPA has conducted four Free Speech on Campus Audits, the first being in 2016. Readers can find the most recent Audit, conducted in 2023, at https://ipa.org.au/publications-ipa/research-papers/free-speech-on-campus-audit-2023

This article from the Summer 2024 edition of the IPA Review is written by IPA Research Fellow and National Manager of Generation Liberty Brianna McKee.