The two university freedoms

By Professor Adrienne Stone

Earlier this year, Professor Adrienne Stone presented the annual Fay Gale Lecture in Melbourne and Adelaide. In it, she addressed academic freedom and freedom of speech at universities – topics of heated and ongoing debate in the media, in politics and on campus. How do these freedoms interact, conflict and overlap? And what are their limits? Here, we reproduce an abridged version of her lecture.

University freedoms are a matter of great public controversy in Australia, with almost daily headlines and developments.
This year alone, we have seen the completion of former High Court chief justice Robert French’s review into freedom of speech on campus and the establishment of a task force to investigate the apparent influence of the Chinese government on Australian universities.

In this fast-moving debate, there are several distinct areas of concern. First, the no-platforming protests related to contentious speakers. Second, the apparent demand from students for protective measures such as safe spaces and trigger warnings. Third, the treatment of dissenting academics, like Tim Anderson at the University of Sydney and Peter Ridd at James Cook University. Fourth, the influence of outside parties on universities, whether they be corporations, political parties, foreign powers or private foundations.

The first two concerns, and some instances of the third, are at the heart of the so-called ‘free speech crisis’, the existence of which is a case much prosecuted by the Institute of Public Affairs and is generally a position of the political right aimed at what is taken to be the intolerance of left-wing students and soft-headedness of left-wing academics. Problem four, the question of outside influence, has re-emerged as a prominent topic after attracting substantial attention via the 2008 Senate inquiry into academic freedom.

I hope to untangle this knot of concerns and lend some clarity to the concepts of academic freedom and freedom of speech, which are often treated as interchangeable ‘intellectual freedoms’. In fact, the beginning of a better discussion lies in a clearer distinction between the two.

Academic freedom: truth and democracy

Academic freedom is a claim that academics, and some others engaged in academic inquiry, are entitled to certain freedoms and privileges with respect to their research, publication and teaching.

The principal justification for academic freedom lies in the fact that universities contribute to the public good by advancing the search for and dissemination of knowledge through research and teaching. Thus, the case for this freedom resembles one of the oldest and best-known arguments for freedom of speech: John Stuart Mill’s argument that it promotes the search for truth.

Mill’s argument depends upon the idea that humans are fallible and therefore the best way to be assured of truth is to allow all ideas to be subject to contradiction and the possibility of falsification. Over time, through constant exposure to contradiction, orthodoxies are revised, thereby bringing ever more assurance (though never complete assurance) of the truth of our understandings.

Mill’s contention has been much criticised as overly optimistic – if not wildly naïve – about the capacity for an unregulated public discourse actually to produce truth. In our modern era, this critique is only amplified. How can truth be achieved in the context of: inequality between differing voices; deliberate lying, manipulation and self-interested deception and a digital era of overwhelming information, degraded trust and anonymous authorship?

In an argument about freedom of speech, these are powerful questions. However, they give way readily when it comes to academic freedom. To explain why, we need for a moment to consider the nature of academic inquiry.

Academic inquiry is pursued through distinct disciplines, each of which is characterised by methods and standards designed to ensure expertise and independence in research. Mastering these methods is an important part of the research training that academics undertake.

The scientific method is perhaps the best known and widely understood, but all disciplines have specific methods through which they subject claims to contradiction and challenge.

It is the development and adoption of disciplinary standards that makes university research unique and provides an answer to the sceptics of Mill’s truth-based argument. When academic research is considered in the light of its methods, it should be evident that the arguments marshalled against Mill — his insensitivity to harm and over-optimism about public discourse — are much less strong arguments against academic freedom. Most of the kind of speech that causes harm — libel, threats, obscenity, pornography, racial vilification — could not be justified as part of the academic enterprise. Moreover, academic discourse simply does not resemble the unruly and overloaded modern marketplace of ideas. Indeed, the constraints of the disciplines, the commitment to academic methods and standards are designed precisely to address the kinds of problems that bedevil public discourse.

This is the core of the case for academic freedom as I see it. But in addition, I also offer an ‘argument from democracy’. That argument is that universities contribute to a healthy democracy and well-functioning civil society by virtue of their cultivation of informed, engaged and democratically competent citizens and their provision of expert knowledge that in turn informs public discourse and governmental decision-making.

The argument from democracy is put in several ways. One claim is that a university education creates an active and engaged citizenry. Another is that universities train the experts who themselves take part in government (judges, high-level administrators, policy makers of all kinds). But the most important claim is that a critical part of democratic government is its reliance upon the participation of an informed citizenry in public discourse and then, ultimately, in electing and holding governments to account. The complexity of modern governance is such that myriad public issues can only be understood in the light of reliable and independent research that only universities can produce. Indeed, in circumstances of political polarisation, where opposing political forces increasingly present competing versions of the facts, reliance on independent, disciplined university research may be one of the few ways to progress political arguments.

The limits of academic freedom

If academic freedom serves these specific ends – the pursuit of knowledge and support of democracy – it must operate to protect activity that pursues those ends. Most obviously, teaching, research and publication receive protection under the principle, but even in relation to them some limitations are inherent in the idea.

First, academic freedom is a freedom to work within disciplinary bounds. To claim the protection of academic freedom, academics need to work within the discipline in which they are trained. Second, academic freedom does not give rise to a general claim to intellectual freedom in matters unrelated to research. In line with this, a US court found that academics do not, as a general matter, have a right to access pornography online. The position is different in relation to academics researching questions like the effect of pornography, the moral status of pornography, and legal and other responses to it. Those academics are engaging in the pursuit of knowledge – a core protected activity. But to claim that academics have a freedom to access pornography as an aspect of their academic freedom is to misunderstand the concept. Third, given teaching’s centrality to the university’s mission of pursuing knowledge, academics clearly have a measure of freedom to determine what and how they teach. Those decisions at minimum, however, need to be related to the demands of the discipline and the effectiveness of teaching.

Thus, academic freedom protects those – academics, research assistants, PhD students, librarians – who are engaged in the research, teaching and publication that is at the core of the academic pursuit. However, while I have principally treated academic freedom as a freedom possessed by individuals, the same values also require that universities have institutional autonomy. In order for academics to have the freedom to research and teach, universities need institutional autonomy. It is essential, for instance, that universities are not beholden to the political agendas of governments or the interests of wealthy individuals or corporations.

Freedom of speech: the importance of context

Unlike academic freedom, freedom of speech is a value of our society at large and is not specific to the university. It is a central tenet of political liberalism and a universally protected right in the constitutions of the world’s democracies. An enormous literature has settled on three principal lines of justification for freedom of speech: it is essential to the search for ‘truth’ (the argument from truth), it is necessary for or constitutive of a dignified and autonomous life (the argument from autonomy) and it is a necessary condition for democratic self-government (the argument from democracy). It is also generally agreed that it is subject to limitations. Freedom of speech is simply too capacious a principle and operates in too many highly complex circumstances for it to work otherwise.

Sometimes freedom of speech is exercised in a context intimately concerned with democratic governance. For instance, given the democratic importance of the proceedings of parliament, it is not surprising that there should be especially strong rights of freedom of speech — such as an absolute privilege against defamation. But there are also special contexts in which the need to achieve other social goals justifies specific limits on freedom of speech. Consider the limits on freedom of speech that are permissible in the courtroom to enable the courts to perform their role in the justice system, or the obligations of confidentiality that employers in many contexts are permitted to impose to protect their commercial interests. Just where the limits lie is the bread and butter of free speech controversy. But the general point that freedom of speech is to be adapted to context is not seriously contested. My contention is that the same sort of analysis should be adapted to determining the role of freedom of speech in universities.

Freedom of speech in the university

Having regard, then, to the social role of universities, how should we understand freedom of speech.

First, it is helpful to consider how universities are best understood as several interconnected spheres. They are forums for the work of academics in research and teaching; they engage in the provision of employment, goods and services to the public; some contain residences; and they are sometimes public forums for the discussion of matters of public interest.

In some of these spheres, there is little role for free speech principles. In the university classroom, lecture hall or laboratory, for instance, speech and expression is properly subject to control by the teacher and limited for the purposes of advancing learning. When academics teach controversial material or when students engage in robust debate in the classroom, that is an exercise of their academic freedom and not their freedom of speech. It is properly subject to disciplinary standards and to pedagogical requirements.

At the other end of the spectrum is the ‘public square’ of the university. In this sphere of university life, freedom of speech has great weight. Universities have long been places where the citizenry gather for the purpose of public discourse and they have a long tradition of political activism and protest. These features make universities especially important forums for the exercise of free speech rights, and universities should therefore embrace and facilitate these activities for the common good.

A general culture of intellectual freedom in the university’s public sphere is likely to be mutually reinforcing in its academic sphere, further fostering the university’s academic mission. It should ordinarily be expected, therefore, that public discussion in universities is frank, open and robust, and that orthodoxy of all kinds is open to challenge. There may be fierce disputes among members of the community but in the main these are to be tolerated and managed without speech restriction.

Freedom in practice: the problem of no-platforming

Until now, I have not dwelt on the circumstances in which freedom of speech can be limited in universities. However, I seek to draw out one general principle: in universities, including in the public square of the university, it is academic values rather than free speech values that should have primacy.

As mentioned, freedom of speech and academic freedom will ordinarily be mutually reinforcing. However, a tension between freedom of speech and universities will most obviously arise where speakers come from outside the university community. For the most part, welcoming such speakers on the campuses will either support the university’s mission or at least not be inconsistent with it. However, what about flat earthers, anti-vaxxers and conspiracy theorists who think 9/11 was an ‘inside job’?

To get some clarity on the question, we can start by returning to Mill. Mill put a famous argument for the toleration of falsity. His view was that the expression of falsity – even patent falsity – usefully promotes the clarification of and reinforcement of the truth. Challenging false views requires active justification of our true beliefs and discourages complacent and unthinking acceptance of orthodoxy. So, in Mill’s view, such speakers should be, subject to the law, completely free to express their views in public. However, this argument does not translate well into the university context.

It might be, as Mill would have it, that the task of dispelling false ideas advances truth and is thus consistent with academic inquiry. However, the opposite might be true too. Spreading false and even dangerous ideas on campus might also lend credibility to the ideas or even undermine the commitment on campus to methods of academic inquiry. There is also the question of inclusion. Spreading these ideas on campus may make life particularly difficult for some members of the university community (think of antisemitic or Islamophobic conspiracy theories) in ways that in turn affect the ability of students and staff to engage properly in their education and research.

We are fortunate in Australia that the politics of provocation that so clearly characterises campuses in the United States is not yet common here. But the basic principle is important because it goes to the core of what the university is. A university is not a platform for the political life of the community at large. It is a special community devoted to research and learning, activities that it conducts with disciplinary rigour and independence. Through these activities, universities make a unique social contribution. They are not only entitled but really obliged to defend those values, especially when threatened by those who seek to come into the community from outside.

Adrienne holds a Chair at Melbourne Law School where she is also a Kathleen Fitzpatrick Australian Laureate Fellow, a Redmond Barry Distinguished Professor and Director of the Centre for Comparative Constitutional Studies. She researches in the areas of constitutional law and constitutional theory and holds an Australia Laureate Fellowship (2017-2021).

Banner Image Credit: Edwin Andrade on Unsplash.

This article originally appeared in MLS News, Issue 22, November 2019