Training for Active Participation in the Public Realm: A Review of Free Speech and Liberal Education

April 2021

Donald Alexander Downs, Free Speech and Liberal Education: A Plea for Intellectual Diversity and Tolerance, Washington, DC, Cato Institute, 2020, pp. 270.

In 2011, a young Jewish student at York University in Toronto filed a complaint of anti-Semitism against her professor. She had heard him say in class that “Jews should be sterilized.” This sounds horrendous, but it seems the student had been asleep for most of the class. The professor, himself Jewish, was discussing what might or might not be considered a legitimate point of view in a university classroom. What he had actually said was something like, “For example, the statement that ‘Jews should be sterilized’ is not a legitimate opinion.” Even after this was explained, however, the student continued to argue that it was anti-Semitic to even mention such a statement. As I wrote to the Canadian Jewish News at the time, this appeared to mean that professors should teach their students fairy tales, rather than teach them truthfully about history (“ ‘Offended’ by reality”, CJN, November 24, 2011, p. 8).

This seems to be the problem with the new stress in many North American campuses on “trigger warnings.” These warnings are meant to protect students from encountering facts or analyses that might upset them. On the other hand, such analyses and facts might teach students quite a bit about the evils than men and women do.

Donald Alexander Downs, a legal philosopher retired from University of Wisconsin-Madison, addresses this problem and others in his Free Speech and Liberal Education. Downs is not an alarmist and does not oppose all new “identity politics” trends on university campuses. He acknowledges, for example, the beneficial role that feminism has played in opening up new academic questions (pp. 164-5). He presents examples of academic excesses but does not dwell on them.

Downs is not a free-speech absolutist: he refers frequently to US Supreme Court decisions on the limits of free speech. He also carefully differentiates between academic freedom and freedom of speech. The former is subject to standards of scholarly rigour. Professors should not be permitted to say whatever they want in a classroom: academic freedom has “competence-based limits” and requires “commitment to intellectual standards of proof, evidence and reason” (pp.8, 58).

Freedom of speech, by contrast, is not subject to standards of scholarly rigour. Everyone on campus, whether faculty member, administrator, staff member or student, should enjoy the right to say whatever he or she wants outside of the strictures of academic discourse. Downs rightly condemns the Orwellian approach of Rhodes College, which in 2008 instructed students to report insensitive statements made by their fellow students in private conversation (p.70). He is worried about the bureaucratic and administrative apparatuses that police freedom of speech, even going so far as to refer to the “surveillance university” (p. 11). This surveillance extends well beyond American legal limits on freedom of speech, to include in some cases, as at the University of Oregon, policing of “insensitivity” and “lack of awareness” (p. 87). Citing de Tocqueville, Downs calls these measures “soft despotism” (p. 22).

Downs opposes the “heckler’s veto,” now used against people considered right-wing or insensitive to identity politics, yet in earlier decades used against left-wing speakers (p.72). Such a veto was attempted in Toronto in 2019, when feminist Meghan Murphy was invited by a local group to explain her view that certain transgender demands might interfere with women’s rights. Even Mayor John Tory opposed the principled stance of Vickery Bowles, Toronto’s chief librarian, who permitted Murphy to speak at the Palmerston Library.

Downs agrees with the British sociologist Frank Furedi about the dangers of “therapy culture” on US campuses (Frank Furedi, What’s Happened to the University?, New York: Routledge, 2016). Young people, says Downs, are infantilized, protected from any ideas that might be perceived to upset—and therefore “harm”—them. Instead, Downs and Furedi believe, young people should be exposed to ideas with which they might at first disagree and be trained to debate them. Young people should develop strength of mind to accompany their strength of body.

Downs also believes it is unfortunate that some universities now assume that “social justice” and “human rights” are opposing terms. “Progressive” universities pursuing a social justice mission focus on inequality. At the same time, they downplay classic liberal values such as freedom of speech and expand their bureaucratic and administrative governance over their individual members (p.6).

Yet as Downs asserts, “Social justice without liberal rights is oxymoronic” (p. 7). In this he is correct. Just as “social justice warriors” do, so also human rights advocates want everyone to be treated equally, whether with regard to civil and political rights such as the right to vote, or with regard to economic, social and cultural rights such as to health care, education, or housing. In polities that restrict freedom of speech and freedom of academic inquiry, social justice goals are unlikely to be realized. Take, for instance, the rights to adequate nutrition and to be free from starvation, protected by Article 11 of the 1976 International Covenant on Economic, Social and Cultural Rights. When citizens are tortured or murdered as punishments for speaking out against their governments, they are unable to let their governments know when they are starving, as in China’s Great Leap Forward (1958-62) or in North Korea or Venezuela today. (See Rhoda E. Howard-Hassmann, State Food Crimes, New York: Cambridge University Press, 2016.)

Despite the continuing need for freedom of speech on US campuses as elsewhere, Downs shows that recent surveys of student opinion reveal a disturbing trend to prioritize sensitivity over freedom of speech (pp. 125-48). This does not mean that Downs opposes attempts to be sensitive to students’ emotional needs, for example by creating “safe spaces” on campus. Students have the right to form “self-referential groups,” he argues, especially when they feel besieged by the larger society (p. 88). On US campuses today, such groups may well include Black and transgendered students.

At the end of his book, Downs presents some guidance on how to overcome politicized bullying of faculty members and students. He grounds his advice in his own twenty-year experience as a member of the University of Wisconsin’s Committee for Academic Freedom and Rights. Most of his suggestions are moderate and take carefully into account the legitimate grievances of marginalized students, without ceding grounds of academic freedom or freedom of speech. Unfortunately, however, he does not present details of the cases he helped resolve, presumably because of privacy reasons.

Down’s most important contention is as relevant to Canada as to the US, even though both Canada’s hate speech laws and its approaches to diversity differ from those in the US. The university, he argues, should be a shared intellectual polis, in which students should be just as much participants as their professors (p. 111). In this shared polis, not only the rights of speakers but also the rights of listeners should be protected: students and others have the right to listen to unpopular ideas (p. 245, n.11). Exercise of the right to freedom of speech promotes intellectual courage among students, an important part of what it means to be a citizen, a participant in public debate. Citizens should be capable not only of intellectual conviction, but of civic doubt and an appropriate degree of distrust of government (pp.176-81).

A university is not only a training-ground for future employment: it is, or ought to be, a training ground for active life-long participation in the public realm. For this to occur, both academic freedom and freedom of speech are absolutely necessary.