Is There a Free Speech Problem?

April 2018

Section 2 of the Canadian Charter of Rights and Freedoms lists fundamental freedoms that apply to everyone in Canada. These fundamental freedoms can be held against actions of all levels of government and are enforceable by the courts. Freedom of Expression is one of those fundamental freedoms. The importance of this fundamental freedom is undisputed. For example, Justice Peter Cory wrote that it “is difficult to imagine a guaranteed right more important to a democratic society” (Edmonton Journal v Alberta (AG), 2 SCR 1326 at 1336.). In the United States, Freedom of Speech and Freedom of Expression are protected from government restrictions by the First Amendment to the United States Constitution. One would assume that freedoms so important to a democratic society are upheld throughout North America, and especially at public universities.

Yet, recently, threats to freedom of speech have become a hotly debated topic on university campuses, on social media, and in the print media. Hardly a week passes without some new publication on this topic. Often (though not always) these publications are prompted by the shouting down of a usually (though not always) conservative speaker on a university campus and have catchy headlines like “Progressives Shout Down Christina Hoff Sommers at Portland Law School” (Saxton, 2018), “Jordan Peterson vs. the new freedom fighters at Queen’s University” (Blatchford, 2018), “Psychologist stares down left-wing ‘Lock em in and burn it down!’ Queen’s U protest” (Ernst, 2018), “Faith Goldy’s talk at Wilfrid Laurier was cancelled. And a damn good thing, too” (Paradkar, 2018), “Protesters disrupt lecture by uOttawa ‘anti-feminist’ at Ottawa Public Library” (Crawford, 2018), and “More ‘free speech’ fuzzies scrub Mac event” (Mahoney, 2018).

The increasing frequency of similar headlines elicits two distinct reactions. One group claims that freedom of expression is under threat and that this threat is steadily increasing. Some (though not all) members of this group even speak of a Free Speech Crisis on university campuses. I call this group Concerned about Free Speech (CFS). The other group claims that there is no (serious) threat to freedom of expression. Members of this group usually (though not always) insist that freedom is alive and well and has, in fact, been steadily extended during recent decades. According to this group, a “rightwing outrage machine” intentionally organizes “events [that are] designed to provoke the on-campus left” (Wilson, 2018). I call this group Unconcerned about Free Speech (UFS).

When two groups disagree about a matter as strongly as CFSs and UFSs do, we are usually in one of two situations. Either [1] at least one side intentionally misrepresents the position of the other side, or [2] at least one side misunderstands the position of the other side. Since one should not assume [1] without very good evidence, I will set it aside here and focus on [2] in this article. Being a member of CFS myself, I have been long perplexed by the insistence of UFSs that there is no threat to freedom of expression. A recent article, written by a proponent of UFS and celebrated by many UFSs on social media, made me realize that indeed we are speaking about different issues.

Under the attention-grabbing headline “Everything we think about the political correctness debate is wrong,” Matthew Yglesias claims that “Overall public support for free speech is rising over time, not falling … [and that] a 2016 Knight Foundation survey showed that college students are less likely than the overall population to support restrictions on speech on campus” (Yglesias, 2018). Let’s evaluate the evidence for Yglesias’ claims. He cites questions subjects have been asked, for example: “… now consider a Muslim clergyman who preaches hatred of the United States. If such a person wanted to make a speech in your community preaching hatred of the United States, should he be allowed to speak, or not?” (emphasis added). The wording of this question (representative of others that comprise Yglesias’ evidence) makes it clear that people were asked whether a hypothetical speaker should be allowed to speak to their community. So, this research concerns the rights of people to decide whom they want to listen to. It may indeed be the case that in 2018 there is a greater willingness to tolerate some views, described in the abstract, than there was thirty or forty years ago. And this is a good thing.

A recent publication entitled “The Skeptics are Wrong: Attitudes About Free Speech on Campus are Changing” (Stevens & Haidt, 2018) challenges Yglesias’ methodology. I won’t repeat those challenges but, instead, show that even if one accepts Yglesias’ interpretation of the data his euphoric conclusion does not follow. First, freedom of expression is a (mostly) negative right and speakers are rarely if ever invited based exclusively on the abstract criteria Yglesias focuses on. Rather, specific speakers are invited based on what they have to contribute. This has several important implications. First, Jordan Peterson’s right to free speech creates no obligation on me (or anyone else) to listen to him. Only students who take a class from Dr. Peterson would accept such an obligation but this won’t concern us here. Rather, the focus is on events, organized by various student groups on campuses, where attendance is not mandatory for anyone. As a member of one such group I might advise against inviting Dr. Peterson for many different reasons. For example, I could believe Dr. Peterson is a boring speaker. I could believe Dr. Peterson charges too much money for his time. I could have inquired and learned Dr. Peterson won’t be available on any of the dates for which we want a speaker. These and many other potential reasons have nothing to do with the views Dr. Peterson holds. Perhaps our group even disagrees vehemently with Dr. Peterson’s views and does not invite him for that reason. But, no matter what the reasons are, a failure of our group to issue an invitation to Dr. Peterson in no way interferes with his right to free speech. In fact the vast majority of Canadians never receive an invitation to speak on university campuses and no CFS is worried about this. What then are CFSs worried about?

There are two sets of worries. First are what I want to call “other-directed worries”. Just as my hypothetical group decided that we do not want to invite Dr. Peterson, another group may decide that they do want to listen to Dr. Peterson. Likely they will then issue an invitation and, if he accepts, he has the right to speak to them and they have the right to listen. However, increasingly certain groups and individuals on campuses interfere with the decisions of others. Those groups and individuals want to police what others can listen to. Although this kind of interference is a violation of freedom of expression, it is not covered by the research Yglesias cites.

Perhaps anticipating this objection, those who advocate shutting down speakers they would never invite themselves have sometimes claimed that the university at large is the relevant group or community. And, they explicitly claim that views of which they strongly disapprove should not expressed on university campuses: “A university would be the last place you’d expect to go to pollute your mind with reheated white supremacist schlock”(Paradkar, 2018). However, university communities are not homogenous groups. Students and faculty from diverse backgrounds and with diverse interests should not be expected to agree completely on many issues. In particular, they should not be expected to always agree on which speakers to invite to campus. Within-group diversity raises the second type of worry not addressed by the “general tendencies” view proposed by Yglesias.

In order to evaluate whether “support for free speech is rising” the relevant question to ask is not whether in general people have become more tolerant towards a hypothetical speaker described in the abstract. Rather, students and faculty should be asked “Have you or a group you belong to ever invited [to use Yglesias’ examples] ‘a communist, a homosexual, an opponent of all religion, a racist, [or a militant anarchist]’ to give a talk on campus?” Another relevant question would be: Have you ever attended a talk by a communist, a homosexual, an opponent of all religion, a racist, or a militant anarchist?” Would the majority of students and faculty answer ‘Yes” to those questions? If not, one has to suspect that while support for free speech in the abstract might be rising, the willingness to expose oneself to those views is not.

Another important question is whether a subgroup that disapproves of a particular speaker should be permitted to enforce their views on the entire university population. For example, in the recent case of violent protests against Dr. Peterson at Queen’s University, it was a member of the university community, Queen’s law professor Bruce Pardy, who issued an invitation to Dr. Peterson. Another member of the university community, Queen’s Principal Daniel Woolf, had explicitly supported Dr. Peterson’s right to speak at the event (Woolf, 2018), and several hundred members of the community expressed their wishes to listen to Dr. Peterson by attending the event. Thus, the protestors can hardly claim to be speaking on behalf of the university community. It is their willingness to use all means necessary (including physical violence and threats of serious harm) to prevent someone from exercising their right to freedom of expression and others from exercising their right to peaceful assembly that worries CFSs.

Threats to freedom of expression that are caused by the diversity of opinion on campuses are never addressed by Yglesias. The research he cites shows a generally positive trend towards inviting speakers with “controversial views”. But, there is no unanimous acceptance for any group. In general, roughly 90% of subjects would be willing to invite a “homosexual speaker” and 60% would be willing to invite a “racist speaker”. These numbers also show that between 10% and 40% of subjects would notbe willing to invite speakers with those views. Yglesias cites no research about the attitudes of those minorities. In the case that a speaker they disapprove of is invited would they (1) not attend the event, (2) peacefully protest against the event (using flyers or newsletters for example), or (3) attempt to shut down the event? Further, is there any research showing whether the tendency to do (3) is increasing or decreasing? Those are the kinds of data CFSs are interested in.

Freedom of expression is a negative right that does not create an obligation to listen. Hence, anyone can respond to an announcement that Dr. Peterson will speak at their university with argument A1: “I am not interested in/bored by/offended by what Peterson has to say; therefore, I will not listen to him”. CFSs have no objection to A1. However, things change if one responds to the announcement with A2: “I am not interested in/bored by/offended by what Peterson has to say; therefore, I will prevent everyone else from listening to him.” A2 interferes with Peterson’s right to free expression as well as with the rights of those who are interested in what he has to say. A2 is the argument of violence-ready protesters who want to police what the wider community can listen to. CFSs strongly object to A2.

Some UFSs have acknowledged that there are attempts to stifle freedom of expression on campus but call those who consider this to be a problem “alarmists”. For example under the headline “There Is No Free Speech Crisis says Dr. Jeffrey Sachs”, the author writes: “According to the Foundation for Individual Rights in Education (FIRE), there were 29 attempts in 2017 to disinvite or block an invited speaker from speaking on campus. … The numbers were higher in 2016 (43 attempts were made), but the average over the last five years is just 31. Out of a country with 4,700 schools” (Sachs, 2018). It may come as a surprise that I agree with Sachs: the highly publicized attempts at disinviting or blocking people from speaking on campus are not the problem.

However, unlike Sachs, I believe those highly publicized events are indicative of a problem that runs much deeper. Like the tiny tips of massive submerged icebergs they signal the steadily increasing threats to Freedom of Expression and Freedom of Speech that more and more students experience on campus. Just how widespread the real problem has become was made clear in a mostly ignored article entitled “My experience at the Jordan Peterson protest”. In it, a gender-queer student who was at the protest describes what happened when they wanted to address fellow protestors: “Walking up to the girl with the megaphone, I asked if I could use it for a moment. She told me, ‘I do not know you so I do not trust what you have to say. You cannot speak’” (Daisy, 2018). One has to wonder why the girl was so afraid of what someone she never met had to say that she refused giving them a voice. Given how “naturally” her reaction came, one also has to wonder how many students are silenced on a daily basis by those who claim to speak on their behalf. Luckily, Daisy eventually got a chance to express their view. But their experience is merely another iceberg tip—many students never get to express their views openly and/or self-censor. And, as Daisy’s article and the comments to it show: there are many misunderstandings on both sides of this particular debate. Shutting down debate or otherwise silencing inconvenient voices will do nothing to clear up those misunderstandings. Queens’ president reminds us “that attempts to shut down debate and limit speech serve no one well—even the groups calling for such silencing. They merely make it easier for the next group in power to silence others” (Woolf, 2018). This sums up nicely what CFSs are concerned about.

Given that I focussed here on fundamental disagreements between CFS and UFC, perhaps it is best to end on a point of agreement. I believe Dr. Sachs is absolutely right when he asserts that “it is exceedingly difficult to gauge public support for free speech” (Sachs, 2018). I hope he will keep this in mind the next time he is tempted to assert with such confidence that there is no Free Speech Crisis and that those who disagree are hysterical alarmists. Furthermore, given that US president Donald Trump recently dismissed threats to campus free speech as “highly overblown” (Wegman, 2018), perhaps those on the political left may want to rethink their attempts at trivializing the problem.