Minimize and Trivialize: A Review of Emmett Macfarlane, ed., Dilemmas of Free Expression

September 2022

Emmett Macfarlane, Editor, Dilemmas of Free Expression, University of Toronto Press, 2022, 322 pp.

Given the many recent attacks on Freedom of Expression any book offering fair evaluations of the problem from several perspectives would be a valuable contribution. Unfortunately, Emmett Macfarlane’s Dilemmas of Free Expression in not such a book.

The book description acknowledges that “[f]ree expression is under threat” and that “[f]ree expression and its limits are multifaceted, deeply complex, inherently values-based, and central to the ability of a society to function”. Macfarlane cites in his introduction from the Canadian Charter of Rights and Freedoms that “the freedom to express oneself openly and fully is of crucial importance in a free and democratic society” and acknowledges that “discourse around free speech … appears increasingly polarized along ideological lines” (p. 3). Yet, it becomes clear quickly that the authors of the individual chapters are defending just one of the sides.

Two examples illustrate how entrenched the bias of the volume is. First, an entire chapter (Dax D’Orazio, pp. 269 - 297) is dedicated to “The Ann Coulter Debacle”. Charitably, one might grant that inviting Ann Coulter to speak at Canadian universities in 2010 wasn’t a brilliant idea. But given the deplatformings that happened in the decade since, one would have hoped for genuine engagement with more contemporary examples. Second, in the index one finds a casual equation of “conservative” and “far right” (p. 313 and p. 315). Implying that roughly a third of Canadians hold “far right views” and are best silenced seems deeply problematic.

The book consists of 15 chapters (articles) thematically grouped into three parts. The first two parts (chapters 1 - 11) deal with challenges to Free Expression in society at large and raise legal and political-science considerations about regulation of Free Expression. “The remaining chapters examine free expression in the context of academia and campus free speech issues” (p. 11). While all chapters would deserve detailed analysis, for this review I will focus on chapters in the last part and only provide a general overview of the others.

It becomes quickly evident that the authors of chapters 1 - 11 agree that Freedom of Expression needs to be limited and that the government needs to take a more active role in its control and regulation. Two main arguments motivate this agreement: 1. Some issues (like climate change) just are settled. Any divergence from the accepted view is based on (dangerous) mis- and disinformation and must be repressed. 2. Allowing some expression would cause direct or indirect harm to vulnerable groups. Therefore, those expressions should not be allowed. Both arguments are problematic.

The argument from “settled science” ignores the fact that throughout history people mistakenly believed that issues were settled. The geocentric model of the solar system was widely accepted from its inception by Ptolemy of Alexandria (2nd century CE) until the 16th century. Those challenging the model were accused of blasphemy and forced to recant (Galilei Galileo) or burned at the stake (Giordano Bruno).

The German Nazis claimed that “racial science experts” had discovered that some races are more biological fit than others and the eugenics policies based on this “science” resulted in the forced sterilization and murder of millions. East German authorities taught Marxism as unchallenged consensus in schools and universities and those who questioned the dogma were exposed to “re-education” and imprisonment.

Recently, we experienced how dangerous blind trust in scientific authority can be. Many of the measures imposed to deal with the Covid-19 pandemic turned out to be based on incorrect interpretation of scientific research and/or were in opposition to scientific findings. In BC the uncritical acceptance of provincial health officer Dr. Bonnie Henry’s orders (for discussion see Behme, 2021) and the silencing of her critics led to preventable mass infections in schools and communities across BC and to an extreme strain on the health care system.

Of course one can, and should challenge false claims about climate change. But the challenge needs to be based on scientific findings and rational argument, not on labeling diverging ideas as “fake news” or “disinformation” and banning their expression. Only dictators and authoritarians silence those who disagree. Rational people fight “bad speech” with “better speech”, and occasionally we learn that the widely accepted consensus was wrong.

Some authors in first part of the book challenge the premise that “the answer to bad or erroneous speech is not censorship but more and better speech” (Moon, p. 17f; see also Cara Faith Zwibel, p. 111). The main concern seems to be that not everyone has access to correct information, the ability to evaluate information, and/or the power to make their voices heard. This argument is paternalistic because it assumes without evidence that all/many of those who believe diverging views are unwilling or incapable of evaluating the arguments of the other side and/or to be convinced by evidence and rational argument.

A second, related, worry seems to be that unregulated speech will lead to a proliferation of hate speech and cause psychological and emotional harm to members of minority and vulnerable groups (see chapters by Moon, Macfarlane, D’Orazio). Since in Canada hate speech is already a punishable criminal offence, the concerns extend beyond what is currently defined by the law as hate speech. However, the arguments seem to be more based on the perception of activists regarding what constitutes harm to minority or vulnerable groups vs. first person accounts by members of those groups. Supporting members of minority and vulnerable groups is important but speaking on their behalf is paternalistic.

I turn now to a detailed discussion of two chapters of the volume: Jeffrey Sachs’ “Faculty Free Speech in Canada: Trends, Risks, and Possible Futures” (pp. 236 - 251) and Shannon Dea’s “On Silence: Student Refrainment from Speech” (pp. 252 - 268). I selected those chapters because they promise to address potential problems of Freedom of Expression for the two most important groups in universities: faculty and students. Unfortunately, both authors have a history of minimizing and trivializing Freedom of Expression issues on campus (e.g., Sachs, 2018, 2019, 2020; Dea, 2018, 2019), and they do not disappoint in this regard here.

Sachs promises to “introduce some rigour to the question of faculty free speech” (p. 236). However, he immediately admits that he only focusses on rare instances of formal punishment of protected speech such as terminations and suspensions (p. 237). He specifically excludes from his discussion informal forms of punishment, such as departmental mobbing or chastisement because they “are rarely disclosed to the public and are difficult to identify” (p. 237). So, unless it leads to termination or suspension it’s not worth discussing.

Sachs’ “rigorous methodology” also excludes self-censorship that is motivated by concerns about career advancement or social acceptance. Given that thousands of part time faculty do not enjoy job security they are probably most likely to self censor. Universities do not need to fire or suspend precarious faculty. Instead, they can decide not to offer them a contract for the next academic period. One has to wonder how Sachs would react to an article that would dismiss the obstacles faced by Indigenous or Black faculty based on similar arguments.

Sachs claims that from 2010-2020 only fifteen Canadian faculty members were fired or forced to resign and an additional thirteen were professionally disciplined. He admits that these numbers almost certainly “undercount the phenomenon” (p. 237) but expresses confidence that they “give us a basic sense of the frequency with which punishment to faculty is meted out” (p. 237f). Half of the suspensions/firings occurred because professors or administrators publicly criticized the university they worked for or expressed views that jeopardized corporate funding.

Sachs’ attempt to minimize apoliticism and self-censorship among faculty borders on the bizarre. On the one hand he admits that virtually no data about the prevalence of either are available. On the other hand he confidently asserts that “it seems unlikely that faculty are disinclined to engage in controversial or offensive speech” because “tenure and collective agreements offer broad protections for controversial speech” (p. 242). Again, he is happy to ignore contingent faculty and early career scholars who do not enjoy the protection of tenure.

Next Sachs argues that Canadian students are less likely than American students to demand that faculty are disciplined or fired for their speech. He believes that to be the case because, based on one 2015 publication, he claims that “[Canadian students] are [not] likely to believe that racism is a serious problem on their campuses or that students should be required to take courses on the experience of minorities or women” (p. 243). It would appear at least possible that someone who believes racism is not a problem on their campus would be very shocked by a professor expressing (perceived) racist views and demand their punishment.

Finally Sachs discusses the “robust employment protections most [faculty] enjoy” (p. 244) and he argues that because of those protections faculty members are rarely punished for expressing their views. Most of those protections are part of collective agreements. However, he also acknowledges that enforcement of such principles can be problematic; so even tenured faculty might think twice or three times before voicing controversial ideas.

Unsurprisingly, Sachs concludes that “Contrary to the dire warnings in the media, faculty free speech in Canada has not disappeared”. I am unaware that anyone ever made such a claim and rather alarmed that an academic would be so careless in his formulation. One is also reminded of the metaphor about the frog in the slowly heated water: if we only begin to worry about Freedom of Expression on our universities once many/most faculty face termination or formal discipline it might be too late.

Shannon Dea’s chapter on student refrainment from speech is mostly a regurgitation of her earlier (bad) arguments on the topic of self-censorship (Dea, 2019). Dea objects to the broad application of the term self-censorship because “[t]o characterize all refrainment from speech as self-censorship …. [assumes] from the outset that all such refrainment is bad” (p. 253). Of course, she does not provide a single example of anyone making such a ridiculous claim but, instead, continues to dress up her straw-person argument.

Dea’s first argument suggests that “the public” and scholars use the term “self-censorship” differently and that “any gains made on the scholarly side providing a more nuanced, less negatively charged characterization of self-censorship creates the risk of the public and the scholarly specialists talking past each other without realizing that they are doing so” (p. 254). Fortunately both communities can benefit from Dea’s brilliance to avoid this imaginary trap. (Is there really anyone in “the public” who believes that a student who refrains from blurting out a shopping list for dinner during class engages in self-censorship?!)

After establishing the ‘neutral’ term “refrainment from speech” Dea introduces moral evaluations for the reason of refrainment from speech and the consequences of such refrainment. “People’s reasons to refrain from speech may be governed by vice, virtue, or neither” (p. 256). An example of vicious refrainment is not admitting a mistake one made in order to avoid punishment. An example of virtuous refrainment is not joking about an interlocutor’s appearance. Many cases of refrainment will be neither virtuous nor vicious. Further, Dea evaluates the consequences of refrainment as beneficial, pernicious or benign.

Next Dea discusses the ways in which marginalized people are often silenced and evaluates those ways as problematic (perhaps the only topic where she would agree with the notorious Free Speech defenders). Further, she spills much ink criticizing the findings of a 2017 FIRE survey which could be summed up in one sentence: Things are not as bad as the headline suggests. While most of us take this as a given it appears to be a great discovery for Professor Dea.

In the final section Dea reiterates that most student refrainment from speech “is for neutral or virtuous reasons, and has beneficial or benign results” (p. 264). But she cannot claim that students will never refrain from speaking because they are afraid of receiving a low grade for expressing a politically incorrect view. Dea claims that there is no evidence that professors penalize views they disagree with politically with bad grades and speculates that “conservative students are particularly prone to [the view that the best way to get a good grade is to pretend to agree with the teacher] because it is part of the nature of conservatism to be risk averse” (p. 255).

Finally, because students have no good reason (as defined by Dea) for fearing exercising their right to free expression, their refrainment from speech in the classroom is motivated by “cowardice and [they] are hence guilty of vicious refrainment. Indeed, their refrainment is not only vicious but pernicious because of the way it is being co-opted in support of the mythology of a campus free speech crisis” (p. 266). So, according to Dea, the only form of self-censorship occurring on campus is based on vicious cowardice of the student who self-censors. I wish I could think of a better example of victim blaming, alas I can’t.

Overall Macfarlane’s volume was a disappointment but reading it was not a complete waste of time. The fact that scholars like Sachs and Dea feel compelled to go through convoluted mental gymnastics to convince themselves that we are not facing a free speech crisis indicates that the problems are real and rapidly intensifying. In the coming years it will be more important than ever to stand up for freedom of expression and support our students on their intellectual journeys.