More on Free Speech

I’ve been following the posts and comments about anonymous blogging and free speech rights with interest. It’s hard not to weigh in with a few additional comments (and here, as an academic at heart, I’ll mention a comment I wrote nearly 15 years ago for the University of New Brunswick Law Journal’s Forum on free speech as a previous example of “weighing in”). I don’t know where the parameters of free speech should be, I just know that we need to recognize that vital though it is, other values (equality, in particular, as well as people’s entitlement not to be lied about and maligned with impunity) are also.

I believe that one of the great characteristics of a liberal democracy is that getting the “right” mix of these values, the “right” interrelationship between them, can itself be debated, can itself be the subject of free speech. That does not mean, however, that everyone has the same opportunity to engage in the debate and it certainly does not mean that this debate is always encouraged. Like many things in this world, we identify the goal and measure reality by how far distant it is from that goal.

The latest contribution to this debate is the Report of the Presidential Task Force on Student Life, Learning and Community: Rights and Responsibilities within the University. Following a number of events at York involving students, the President established the Task Force, naming then Dean of Law, now Vice-President Academic and Povost, Patrick Monahan, as its Chair. Dean Monahan had another distinction: he was, until taking up his position as VP, the Chair of the Board of Governors of the Law Commission of Ontario. It’s important to note that the Report describes the events prompting the creation of the Task Force as having “very little to do with attempts at persuasion or reasoned discussion. Rather, the focus seemed more on vigorously advancing one’s own point of view, while simultaneously attempting to drown out other, opposing viewpoints.”

“Vigorously advancing one’s own point of view” is, I would think, not the problem. The problem arises if one does so “while simultaneously attempting to drown out other, opposing viewpoints”. Not by brilliant reasoning or even brilliant speech-making, not by refuting the points made by those with different views, but by loud and constant verbal bombardment, in effect, intimidation by verbal force, of others who seek to speak. (And I want to be clear here that I do not believe that a thin-skull rule should apply in considering whether one group or individual is trying to “intimidate” another, although I also do not believe that when disproportionate numbers and constant haranguing make debate difficult, someone who is “initimidated” has a thin skull.)

The Task Force took as its starting point the following principle: “the University’s unwavering commitment to fundamental values of free expression, free inquiry, and respect for genuine diversity of thought and opinion”, a commitment that had been included in the TF’s terms of reference. This means that people should be able to express views that the majority may oppose. It does not take much to think of times we might ourselves have expressed views with which the majority disagrees (views that today are considered mainstream – I would like to think because they are supportive of those other values, such as equality, that signal the nature of Canadian society in its ideal); or that we have tolerated the expression of views with which we vigorously disagreed and to which we may have responded in ongoing debate.

The Task Force’s Report recommends promoting debate by establishing a Standing Committee on Campus Dialogue that would sponsor opportunities for discussion of the significant issues of the day and establishing an “Intergroup Relations program at York to promote dialogue and engagement between students from different groups”. It also recommends additional student space and clear procedures about using the space, amendments to the Student Code of Conduct that provide for student rights, better communication with students, including about their achievements, more effective enforcement of policies related to personal and community safety, the creation of an office to increase cultural awareness and provide anti-racism training, exclusion of external groups who are disruptive and anti-oppression training for everyone (an unfortunate term that one hopes really means developing greater awareness of differences).

In short, the Task Force offers a mix of greater restriction of those who appear to abuse the right of free speech, a mechanism for “positive” organized debate and a nicer environment for the students (although one wonders whether those who have no qualms about verbally beating down those who think differently from them will be persuaded to become genteel debaters because they have more space to engage in their activities). To the extent that the recommendations seek to provide a positive model for the expression of differences and to show the University’s commitment to everyone’s speech by taking a stand against those who abuse the right, these are good recommendations. The cultural environment that promotes responsible free speech (and responsible free speech may be controversial, provocative and critical of others) is important. Will these recommendations really help us to address spontaneous outbursts of speech that we would prefer did not see the light of day? To some extent I hope not, since the idea of only sanctioned speech is quite unpalatable (and not intended, I think) but then that is the dynamic of the free speech and other values interplay. This dynamic cannot really be controlled because it changes over time. If the Report has value, it is because it tries to focus on promoting an “appropriate” exchange of views, on the process which might show how positive expression can occur, and does not try to constrain the content. Whether it is naive in thinking that some groups have the kind of good will that results in using the enforcement measures rarely while much positive exchange of opposing views blossoms of course will be revealed in its implementation. (And it is delightful to see that a Task Force headed by a former law dean can talk about free speech without relying on the Charter guarantee.)