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.
