Campus Speech and Compromised Safety

By Holly Lawford-Smith

Wednesday, May 31, 2023

 

Kathleen Stock tweeted recently that ‘Many philosophers have existed only in their own minds, but I think I may well be the first to exist only in other people’s.’ She was responding to the latest outbreak of leftist moral panic about gender-critical feminism, in this case a series of actions taken by student activists at the University of Oxford in protest against her being invited to participate in a debate hosted by the Oxford Union—which describes itself as ‘the world’s most prestigious debating society’. In commenting that she exists only in other people’s minds, Stock meant that the version of herself and her views being objected to by the student activists was unrecognizable to her.

 

I can relate to that because I’ve been the subject of similar misrepresentation on my own campus. A visual campaign—posters, stickers, chalking, and graffiti—currently into its eighth week proclaims that I spoke at a rally ‘advocating against the existence of trans people’; that a subject I teach has ‘an indisputable history of transphobia’; and that taking my subject would mean supporting ‘fascists and bigots’ (so say several posters glued to walls around campus, including inside my building and outside the lecture theatre in which I teach). Chalking as part of a Trans Day of Visibility protest declared that I 'spoke with Nazis'. A colleague from another school in my faculty suggested that a reference to a Danish person who underwent sex-reassignment surgery in Germany, made early in my speech at the Let Women Speak rally in Melbourne, had been made ‘for the Nazis there’. Within a week of the rally, the dean sent an email to all staff and students in my faculty declaring his position on it, despite its having been held off campus and having been utterly unrelated to university business: ‘I utterly abhor and condemn last Saturday’s event and the neo-Nazi activity that accompanied it. The dehumanizing views expressed in the anti-transgender rally, and the scornful manner in which they were expressed, are antithetical to my own values and to the values of our University.’

 

The idea that there’s a clash between sex and gender identity, as gender-critical feminists assert, is one of the most radioactive ideas on university campuses today (and not just in the English-speaking world). In 2021, Stock collected testimonies from UK academics about how they were treated for expressing gender-critical views. There have been several recent or ongoing legal cases brought by students or faculty against universities on these grounds. Thus, gender-critical speech is a good litmus test for how far universities are prepared to go to protect freedom of speech.

 

Puzzlingly, to me at least, there have been mixed reactions to the campaign against me. Some appear to think that it is simply the price of free speech: students (and likely some members of the wider community) are simply expressing their beliefs about me; never mind if those beliefs are accurate. The best response to speech one finds objectionable is more speech, so why don’t I simply reply to the claims made by the campaign? It’s not as though I have no platform; after all, I’m here on the pages of Quillette writing about the situation, am I not?

 

So that’s one possible response. Perhaps, like Stock, I am a figment of student activists’ imaginations; this figment shares my name, but, otherwise, she has very little to do with me. Their campaign is their free speech; any reply I might like to make is mine. Case closed.

 

But what’s strange about this response is that it would be deeply unintuitive in any other workplace setting. Imagine that two colleagues in a small company—let’s call them Karina and Alexander, in a hat tip to an extremely silly real case—are experiencing conflict. Karina decides that Alexander is a sexist. Rather than using the internal complaints procedures to have the matter investigated fairly and confidentially, Karina prints out some homemade posters calling Alexander a ‘sexist’, a ‘misogynist’, and a ‘men’s rights activist’ activist. With several other female employees, she disrupts a meeting Alexander is attending by loudly chanting slogans and wielding placards. (A similar disruption to my teaching had been planned as part of the Trans Day of Visibility in March but was scuppered when I cancelled my classes.)

 

Regardless of whether or not Alexander was a sexist, most of us probably have the intuition that this would be the wrong way for Karina to go about things. This is what needs explaining. What’s the difference between what’s happening right now at the University of Melbourne, what happened to Stock at the University of Sussex in 2021, and what happened to Alexander in my imagined example? Could it be that there’s no difference and that the cultural dominance of the United States is causing people to import ideas about the very broad protections for speech guaranteed by the First Amendment into the very different cultural contexts of British and Australian universities?

 

To help me answer this question, I spoke with two people with relevant expertise. One was John Hasnas, a professor of law at Georgetown University. The other was Stuart Wood, a Victorian barrister whose areas of practice are industrial relations law and employment law.

 

Talking with me via Zoom in late April, Hasnas explained that all public universities in the United States are bound to follow the First Amendment and, thus, to provide extensive protections for the freedom of speech. In principle, private universities can exercise any speech restrictions they like, but, in practice, almost all have signed on voluntarily to free speech principles that parallel those offered by the First Amendment. That means universities in the United States are unique compared with all other kinds of workplaces. Faculty and students alike are expected to steel themselves against hateful, harmful, and offensive speech unless that speech fits into one of the few categories of exceptions, the most significant of which is incitement to imminent violence.

 

When I showed Hasnas the poster that I consider to be the most objectionable—the one that names me and directs students to boycott my class on pain of supporting fascists and bigots—he delivered his judgement without hesitation: that statement would be categorized as protected speech at an American university. I can see where he’s coming from, for there is no plausible case to be made that the poster incites imminent violence against me. I have worried that in suggesting I am a ‘fascist’, the student campaign may increase the likelihood of violence against me on the grounds that there is social approval in some quarters for the punching of fascists. But increasing the likelihood of violence is not inciting imminent violence; therefore, this would be protected speech.

 

Still, there’s a symmetry to be noted here. Just as I would be required to steel myself against the campaign’s lies, misrepresentations, and distortions, so too would the students be required to steel themselves against the offensiveness, to them, of gender-critical speech. They could not claim to be made ‘unsafe’ by my speech, for example, my inclusion of particular recommended readings in the course guide for my subject ‘Feminism’ (a claim I was recently asked to address by a student journalist) and expect the university to sanction me while I would have to simply steel myself against their speech. Either we’re both steeling ourselves or we’re both seeking the intervention of the university to protect us against speech we don’t like. They can’t have it both ways.

 

More importantly, Australia is not America. So, while this might all explain why some people think the campaign against me is just the free speech of student activists, that doesn’t establish it as such. To find out whether Australian universities were similar to their American counterparts in being unique compared to other kinds of workplaces, I talked to Stuart Wood.

 

What I learned was interesting. Australian universities are not unique compared to other kinds of workplaces, but they should be. That is, given what a university is and what it is supposed to do, America is getting things approximately right, and we are not. We are, mistakenly, treating universities like any other workplace and somewhat thoughtlessly offering the same protections to university employees (such as ‘psychosocial health and safety’ and broad protections against bullying and harassment) that apply to any other workplace.

 

Wood takes the core of a university to be its commitment to free and open inquiry, a tradition that can be traced back to Thomas Jefferson at the University of Virginia in the United States, and Alexander von Humboldt at Humboldt-Univerzität zu Berlin in Germany. There were university-like institutions in the United Kingdom before this time, but they were religious institutions, which meant they had blasphemy rules that severely limited the possibilities for free inquiry. Wood thinks that what we’re seeing today with the heavy emphasis on diversity, equity, and inclusion by universities is a return to the old British blasphemy rules but in the form of a secular morality.

 

He is adamant about the importance of free speech, emphasizing an underdiscussed element of John Stuart Mill’s discussion in On Liberty, namely that the freedom of others to express views that you disagree with profoundly is good for you. Even if you are among the orthodox, and even if your views are true and those of the heterodox speaker are false, it’s still good for you to have your views challenged. As Mill put it, ‘even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds’ (Chapter II). Translated for gender identity activism, this means that even if gender-critical feminists are entirely wrong about sex and gender, trans activists still have a lot to gain from vigorous debate on the subjects.

 

These ideas—about what a university is and why it’s important to hear from those who disagree with us—are more readily applied to what students’ responses to gender-critical feminist ideas should be than to the details of the campaign against me. If students understood the importance of free and open inquiry, there would presumably be no campaign. But, just as I put one of the posters to Hasnas, I did the same with Wood. He was more ambivalent, saying that the poster’s associating me with fascism suggests that I subscribe to the views of the National Socialist Network, which is descriptively false and, therefore, potentially defamatory. Defamation is in the grey area between the kind of speech one can reasonably be expected to steel oneself against in the interests of maximally free and open inquiry and speech that crosses the line and that one can reasonably be expected to be protected from or have recourse against.

 

As reported recently, I have made a WorkSafe complaint against the University of Melbourne. There is some irony in having to resort to interventions that wouldn’t exist if things were as they should be to get the university to behave more like a university should. But maybe this shouldn’t surprise us. As universities try desperately to serve two masters (knowledge production; diversity and inclusion), they will increasingly end up sanctioning speech that should be protected. They cannot function as both perpetrators and protectors, so it will fall to outside authorities to step in and offer the appropriate protections.

 

Is there any way to correct this situation short of universities realizing that they can serve only one master? In a 2022 paper titled ‘Free Speech on Campus: Countering the Climate of Fear’, Hasnas argues that the incentive structure for universities is wrong and that they have ‘an abstract commitment to freedom of speech’ and ‘an incentive structure that rewards the suppression of offensive behaviour’, which amounts to ‘the classic managerial blunder of “hoping for A, but paying for B”’ (p. 987). Hasnas says that two things are needed to change these incentives. The first is a free speech union, so that faculty and students mistreated on speech grounds can secure representation without incurring the expenses typically associated with legal representation. The second is a ‘safe harbour provision’ in the university’s policies, ensuring that any complaints brought against a member of the university community relating exclusively to the content of her views (rather than the time, place, or manner in which they are expressed) are immediately dismissed.

 

Adding the safe harbour provision would give a member of the university community subjected to content-based complaints a grievance against the university for violating its own policies. And the presence of a free speech union would increase the likelihood of litigation for violations, which universities would presumably prefer to avoid. (Regrettably, Hasnas has not been able to persuade his own university, Georgetown, to introduce such a safe harbour provision.) It’s unlikely that Australian universities would adopt Hasnas’s proposed solution wholesale, as we don’t have the same national commitment to content-based freedom of speech. Some speech, for example, racial vilification, has long been criminalized, and in some states other categories are also protected. But we could work out our own version of a safe harbour provision, for example, one that protected members of the university community against sanctions for content-based views relating to open debates. (Thus, racist speech would be out but ‘transphobic’ speech would be in.)

 

The moral panic at the University of Oxford was resolved in Stock’s favour, after interventions by 44 of the university’s academics, and one of its Pro-Vice-Chancellors. I can only hope that the University of Melbourne—and other Australian universities—will choose to follow a similar path.