This issue arose in the context of a review of a speech code being drafted for Simon Fraser University. We have had several complaints about such codes over the past few years, chiefly from disgruntled employees. In one instance, a humorous postcard sent by a college employee to another faculty member was intercepted by campus officials and judged to be obscene and therefore to constitute sexual harassment; in another, a faculty member participating in a peer review of a colleague was warned that no negative judgements of the colleague’s job performance could be accepted, since this would interfere with the colleague carrying out duties and therefore constitute harassment.
It quickly became evident to our Board that the growing controversy over campus speech codes contained very little input from those with a principled interest in the preservation of freedom of speech. Those seeking to establish new principles of discourse in our universities and colleges have the laudable goal of eliminating those abuses of power properly termed harassment and, as a parallel ambition, to discourage the parallel evils of racism and sexism on our campuses. We view such efforts as well-intentioned and support them in limited contexts; but we also see grave dangers in attempting to codify absolute limits to speech conduct. We see this approach as a fundamental misunderstanding of the nature and function of the university in our society.
While it may at first seem logical that institutions of higher learning should serve as moral examples to society at large, this is a very dangerous assumption. By their very nature as repositories and marketplaces of intellectual effort, universities are rife with ideological and generational conflict, often civilized, sometimes not. Furthermore, universities are also workplaces, and intensely hierarchical ones, with perhaps a higher than usual quotient of ambition, rivalry, disappointed ambitions, frustrations, resentments, incompetence, intransigence, etc. Powers of censorship, however well-intentioned, cannot easily be neutral in this context and in fact become a dangerous two-edged weapon.
The following brief represents a working paper in our Association’s deliberations on the issue of campus speech codes. It seeks to establish the principled view from which we can respond to specific complaints and situations. We welcome our readers’ feedback.
Our aim here is not to suggest a model harassment or speech code for universities but, rather, to sketch the general principles which ought to inform our assessment of any such code. Please note: References to “speech” below should be interpreted broadly to include any expressive activity or behaviour that does not limit the expression rights of others in turn.
Free speech in society
We begin by reviewing the basic grounds for the commitment to free speech within society. The value of free speech within a society—the reason why free speech merits protection when it conflicts with other aims and preferences—is primarily derivative. Free speech and expression are valued because they are believed to be necessary means to the realization of certain other ends, the latter of which are held to command respect.
In claiming that these ends are considerable or weighty, we mean to suggest that they take priority to the, mere preferences and interests people may possess. We shall refer to these ends as intrinsic goods or commitments. The basic theory of value that we presuppose maintains that there is a hierarchy among human interests. Intrinsic goods reside at the top of this hierarchy: they enjoy claims to be satisfied in advance of other interests, including those interests which are expressed as mere preferences. The priority relation between intrinsic goods and preferences is not an absolute one, such that the preferences of a majority carry no weight whatsoever against various intrinsic goods. Potentially there are many such commitments in a society. The belief that people should not be tortured illustrates one such commitment—even when torturing a person would satisfy many people’s preferences.
There are principally three sorts of intrinsic goods or commitments that account for the derivative value of free speech.
The first of these is the commitment to democratic self rule. Civil libertarians believe that the institution of the state must be accountable to the will of the community at large. The state is the servant of the people, not its master. A community cannot make responsible decisions about the direction of its affairs if politicians are given the right to decide in advance which ideas the community has the right to discuss. Nor can the citizenry engage in the practices of persuasion and argument which are necessary constituents of self rule under conditions that significantly restrict speech.
Second, free expression is vital to individual autonomy. The classical Millian defence of democracy argues that institutions of public deliberation are valuable because exposure to rival and conflicting points of view promotes individual autonomy. Exposure to the clash of rival views and opinions, even when unconnected to the political forum, remains an essential constituent of personal autonomy. Being forced to argue against views that are patently distorted, false, or callow is especially valuable because this disputation helps us come to grips with our convictions.
Third, Mill emphasized that free speech and expression make an essential contribution to the discovery of truth. Mill reasoned that a reliable means for arriving at true beliefs over a range of fields involves allowing rival points of view to fend for themselves in the marketplace of ideas.
Commitment to the goods of democracy, autonomy, and the pursuit of truth accounts for the importance civil libertarians assign to free speech and expression.
It must be emphasized that the stake or interest people have in securing free speech is not exhaustively based in the interests of the speaker. Free speech is also a public good: its value is not fully exhausted by its private consumption. Free speech is a value in part because it makes social systems richer than they would be in its absence. Even those persons whose speech is not restricted consequently have a stake in ensuring that free speech is protected in society at large. Any member of the community can legitimately claim to have, been wronged when another Person’s freedom of speech is restricted without adequate justification.
Free speech at universities
Complex societies create a variety of public or semi-public institutions to serve specialized functions, such as the armed forces, the diplomatic corps, port authorities, libraries and universities. These institutions are governed by internal rules that address their special needs and requirements, and it is obviously useful for these institutions to possess a certain degree of autonomy or flexibility when creating these internal rules. Decentralized decision-making has benefits for the community at large. It must also be emphasized that when these institutions are given public funding they are obliged to provide certain services to the community, and the community has a corresponding vested interest in ensuring that these functions are met in an appropriate way.
The function of the university in society is crucially connected to the intrinsic goods discussed earlier. By providing a forum for open controversy and debate, the university can help students learn the skills needed to participate in a democratic public culture. The university is further connected to the operation of democratic institutions by the fact that matters of public policy are frequently discussed within the university. For the student population (and it must be remembered that students are voting members of the polity, like any other citizens) an open forum within the university is probably as important a source for political expression as a free press. Open discussion within the university also makes a significant contribution to the nourishing of personal autonomy.
Finally, free speech and expression in the university are indispensable means to the goal of promoting truth. Although professional forums and journals may serve as a marketplace for academic theories, many of the ideas which find their way into these markets will ultimately have been hatched through academic research and refined within the classroom environment.
In summary, the university differs in an important way from other specialized institutions in society. The university is intimately connected to fostering directly the intrinsic goods of democracy, autonomy, and truth, in a way that may not be true in most other institutions. There is consequently a strong presumption that the freedoms of speech and expression, which are linked to the realization of these goods, be accorded special protections within the university.
The difference between offending and harassing
Our aim is to establish conceptual guidelines for what is to count as harassment for the purposes of a campus speech code. We assume that if speech is designated as harassment this is sufficient grounds for its restriction.
Civil libertarians are not absolutists when it comes to the protection of speech and expression. For instance, when speech is a crime (e.g., blackmail), civil liberties groups do not argue for its protection. And speech with potentially harmful consequences can be restricted when there is no opportunity for persons to deliberate on its implications. (This covers the paradigmatic prohibition on falsely yelling “Fire!” in a crowded theatre.) The controversial issue arising from campus speech codes concerns whether the mere fact that speech is offensive constitutes sufficient reason for its restriction on the grounds of verbal harassment.
We assume no one will seriously urge that university harassment officers be given the authority to restrict speech solely on the grounds that its contents are false or morally objectionable.
Professor Nadine Stroessen, general counsel for the American Civil Liberties Union, differentiates between two types of speech act: verbal harassment “that demonstrably hinders or completely prevents [an employee from] continuing to function” and speech that has “no other effect on its recipient than to create an unpleasant working environment.” (See her article ’Regulating Racist Speech on Campus: A Modest Proposal’ in Duke Law Journal (1990): 484-573; the present discussion is deeply indebted to this thorough and illuminating essay.) Professor Stroessen is dealing specifically with the workplace environment, but her underlying theory of verbal harassment can be stated more generally:
A sufficient condition for restricting speech is that the speech undermine an individual’s ability to function in their environment: while conversely, the fact that a speech act has injured a person’s sensitivities or has offended them is neither necessary nor sufficient for restricting the speech in question.
This principle distinguishes between what we can term the function undermining and injuring sensitivity aspects of speech acts. This distinction is applied by the ACLU to cover a broad range of contexts and problems, in particular campus speech codes.
The ACLU Policy on Free Speech and Bias on College Campuses holds that:
This policy does not prohibit colleges and universities from enacting disciplinary codes aimed at restricting acts of harassment, intimidation and invasion of privacy. Although harassment, intimidation, and the invasion of privacy are imprecise terms susceptible of dangerously broad applications, each term defines a type of conduct that is legally proscribed in many jurisdictions when directed at a specific individual or individuals and when intended to frighten, coerce, or unreasonably harry or intrude upon its target.
For the purposes of campus speech codes, the BCCLA endorses the position that the fact that speech upsets, offends, or disturbs an individual is never sufficient grounds for restricting that speech. This position invokes two considerations: first, it reiterates the ethical theory holding that certain intrinsic goods enjoy far weightier claims for protection than any individual’s claim to avoid being offended; second, it considers certain practical obstacles which preempt the attempt to frame rules that try to balance the aim of preventing offense at the expense of free speech within the university. We discuss these balancing arguments below.
Two sets of considerations support the initial presumption favouring free speech within the university. The first pertains to what may be termed the hierarchy in people’s interests (described above). The second point—absolutely crucial in this context—is that the university is a very important forum for the advancement of these intrinsic goods.
However, these principles also place a limitation on free speech within the campus environment. The university’s connection with highly valued, intrinsic goods is a close one. Where forms of speech render an individual incapable of participating in their education (speech which, for example, singles out a person or group for repeated and unrelenting abuse) there is a prima facie case for restricting that speech. This is not because the speech in question may have offended that individual, but because by depriving students of the opportunity to participate in their education, we sacrifice the contribution they and the university make to the goods of democracy, autonomy, and the pursuit of truth.
Why balancing approach offers inadequate protection to speech on campus
Although the stake people have in securing their inner tranquillity may be less valuable than other goods secured by free speech, that stake is not negligible from a moral standpoint. Sufficient proof for this assertion lies in the casual observation that we disapprove of people who go out of their way to inflict emotional harm on others, and conventionally apply terms such as vicious, vindictive and cruel to these individuals.
We can add the observation that not all classes of speech are of equal value in promoting the goals to which civil libertarians subscribe. In virtue of the crucial role it plays for democratic institutions, political speech should receive stringent protections. But there are many other forms of speech within a university environment which are not overly political, and one may reasonably ask why these speech acts should merit protection when they wound others.
In the case of pure political speech, we can override the preceding reservations by pointing out that untrammelled speech is essential for placing safeguards on the abuse of civil power. A similar rationale may not be available, however, in the case of campus speech. Unlike pure political speech, speech on campus is not intimately connected to preventing abuses of civil power. Rather, the value of campus speech derives from the role it plays in the promoting of individual autonomy and the pursuit of truth, and these are not universally regarded as supremely important societal values. For these reasons, someone may recommend that the good of free speech ought to be balanced against the aim of avoiding giving offense within the university.
Our general reply to the balancing argument is that there are reasons for presupposing that the designated institutional authorities are unlikely to strike an acceptable balance when they are given the power to root out offensiveness. Attempts to strike a judicious balance between free speech and offense within the university will inevitably lead to over-regulation of speech.
We offer below a series of context specific reasons for denying university harassment officers die right to restrict speech with the aim of eradicating offensiveness.
- It is often a fact of university life that administrators of harassment codes do not always owe their position to academic distinction or merit, and are likely unfamiliar with the peculiar pedagogic or research demands of the various faculties of a university.
This lack of expertise is often compounded by a lack of direct accountability to the academic departments being regulated. Consequently, there is an initial presumption against making such officials arbiters of which ideas may be discussed legitimately on campus.
One of the rationales for creating a harassment bureaucracy is to provide trained personnel on campus who can mediate between aggrieved parties. A special body of persons in the university may perform this mediating role better than either an external body, such as the courts, or particular academic departments (who will be suspect of bias, torn by loyalty to colleagues, etc.). With regard to mediation, harassment officers make legitimate claims to expertise. However, a harassment officer is not likely to possess special expertise with regard to the content of ideas. Assessment of the worth of ideas—including those ideas which offend—is best reserved for particular departments, who possess such expertise by nature of their professional training.
- Concepts which feature in harassment codes are necessarily vague.
Terms such as harassment, discrimination, sexism, or racism have been, and arguably must be, given varying interpretations. This flexibility will inevitably create an atmosphere of uncertainty with regard to the forms of speech which are protected within the university environment; and where there is uncertainty, there is the temptation towards self-censorship.
This multiplier effect on the regulation of content is, we maintain, inevitable: more speech will be censored “voluntarily” than is actually incorporated within any speech code. Such pressures are contrary to the open intellectual environment universities aim to cultivate. We hold that the only way to respond to this uncertainty is to make clear that there should be no restrictions on what viewpoints can be expressed in university harassment codes.
- In the United States, the institutional rights of persons within the university are safeguarded by their rights as citizens under the constitution, specifically, under the First Amendment.
In the Canadian context, where there is little relevant Charter of Rights and Freedomsjurisprudence, this external check on possible excesses in campus speech codes is an uncharted area. Consequently, once a campus speech code has been set in place, it may be very difficult to remove or amend, even when it is contrary to the role of the university.
- Placing any restrictions on mere offensiveness places us on a slippery slope.
As stated earlier, merely because speech injures a person’s sensitivities is not sufficient grounds for its restriction. On the face of it, this is a conceptually neat standard, and one relatively easy to apply. By contrast, once it is allowed that certain forms of especially offensive speech are actionable—the most popular candidates are racist and sexist speech—the floodgates are opened to all sorts of restrictions.
The problem is that there is no principled reason to treat racist or sexist speech as the only exceptions to restrictions on viewpoints that can be express through speech: hence, we seem to have embarked along a slippery slope in restricting certain forms of offensive speech.
By way of illustration, it might be argued that race and gender are (largely) unalterable, characteristics of specific persons, which therefore differ in kind from other sorts of grounds which give rise to offense. Yet mathematical ability, a low I.Q., and perhaps even tobacco addiction are also specific, and seemingly permanent, features of persons. Would we want to see extra restrictions placed on offending remarks simply because they happen to mention these unalterable characteristics?
We might then add a further condition: that the relevant grounds for restriction must be correlated with a history of persecution and oppression. But people have been oppressed for numerous reasons: their language, their religion, their sexual orientation, their Communist or liberal ideological leanings, and so forth. If possession of these characteristics gives people special rights not to have their sensitivities injured, the scope for free speech vanishes into insignificance.
Moreover, the problem is not simply that harassment code bureaucrats will slide precipitously along this slippery slope, although this is certainly a danger. It is rather that the recognition of some special grounds for restrictions leaves us with some very difficult conceptual distinctions to make, even in cool moments of reflection.
Once we acquiesce in a special exemption from offense to one particular group, we may have no coherent rationale for denying the same privilege to other groups. Creating special protections for certain groups sets in place powerful political and intellectual forces that must inevitably chip away at and erode the basis for freedom of expression.
- Finally, mere offensiveness in the university context is not always contrary to the goals of education.
Students can benefit from being offended: especially if what challenges them most happens to be the truth. Strategic use of offense is a pedagogic decision that should not be vested in harassment officers.
In summary, there is a reasonable reply to the balancing argument. Even if it is conceded that campus speech does not have the same function as pure political speech, it is a mistake to infer from this caveat that the proper approach to campus speech codes involves making provisions for procedures aimed at striking an optimal balance between free speech and the protection of inner tranquillity. There are solid reasons for mistrusting in advance the institutional mechanisms needed to administer these restrictions.
Objection 1: Isn’t the preceding distinction between function-undermining and sensitivity-injuring speech basically incoherent? Surely speech only prevents students from functioning in their environment if it injures their sensitivities. Consequently, aren’t we led by the logic of our position to abandon the distinction between the grounds for restricting speech?
Simply because speech or expression may disturb a person’s inner tranquillity is not sufficient grounds for its restriction. It is necessary to establish that the speech also impairs their ability to participate in their education. The two are not necessarily connected. There are many instances where offending students, disturbing their complacency, challenging the wisdom of their elders and the like, are necessary steps in their education: ones which in no way compromise their ability to participate in their education. Some further evidence must be introduced which shows that the disturbance to the individual’s inner tranquillity has significantly impaired that individual’s ability to obtain an education.
Objection 2. Doesn’t this make the act of harassment depend unduly on subjective factors, and thereby put free speech at risk?
The definition of harassment is objective on this account in the way that is not true of the prevailing test for harassment in the workplace under Canadian law. The Supreme Court has interpreted sexual harassment to include “unwanted attention of a sexual nature”. This is a subjective test in the sense that a status report of a person’s desires—in this case, whether they desire attention—suffices to classify a speech act as verbal harassment if that speech is connected to sex. By contrast, it is an objective matter whether individuals can continue to pursue their studies.
Objection 3. If certain individuals are especially prone to being rendered dysfunctional by offensive speech, would they have the right to constrain free expression for all?
Once again, it is necessary to point out that free speech is a public good: one in which all members of the university hold a stake, in virtue of their more basic interests in the intrinsic goods that free speech serves. It is true that persons rendered dysfunctional by speech may lose out on certain intrinsic goods, such as personal autonomy. But their loss must be balanced against the potentially greater loss to the majority of persons who lose out when speech comes under restrictions. (Note: we are not here balancing simple preferences against intrinsic goods, but are weighing one person’s access to intrinsic goods against the access of the majority to those goods.)
The mere fact that speech makes it difficult for a small and especially sensitive individual or minority to function should not necessarily suffice to restrict that speech. We argue strongly in favour of a reasonable person standard: a speech act constitutes verbal harassment only if it would render a reasonable person—or perhaps a reasonable member of the university community—unable to function within the university environment.
Objection 4. Isn’t speech that refers to the features of certain historically disadvantaged groups more likely to undermine the ability of members of those groups to function within the university?
We are aware of no evidence showing that slurs referring to race or gender create greater dysfunction in their targets than corresponding insults do when directed towards other groups; nor is it clear how such evidence could be gathered except by means which would in themselves be exceptionally injurious and offensive.
Objection 5. Aren’t whatever standards regulate verbal harassment in the workplace applicable to the university? There are certain domains or forums for speech which seem to be indissolubly connected to the goods of autonomy, truth, and democratic self rule, the paradigmatic case being political speech. Even highly personal attacks on public figures are given this protection. Speech in the workplace is not as closely connected to the goods of democracy. autonomy, and truth. Not surprisingly, workplace harassment codes in the United States and Canada provide for significant restrictions on free speech and expression. Whether or not such restrictions are advisable remains an open question.
Although they are employers, universities resemble the political forum more than they do the workplace. By their very nature, universities seek to encourage debate about public policy, which directly complement citizen’s abilities to control their representatives.
In addition, universities provide a forum for reflection about the nature of the self and truth in a way that is not often found within the workplace.
There is consequently a clear presumption favouring free speech within the university. We hold it to be an egregious error to model the content of a campus speech code on workplace harassment codes. This error betrays a complete misunderstanding of the way in which the type of forum may affect the stringency of the protections on speech.
Let us summarize the arguments presented above.
- The amount or quantity of simple offense should not be weighed in a linear fashion against the intrinsic goods that speech makes available. Rooting out offense and protecting speech can possibly be traded off as aims in some contexts, but the authority to manage these trade-offs should never be given to harassment code officials in universities.
- Against the various particularist or special protection doctrines, civil libertarians treat people as equals. This means that no one person’s interest in avoiding mental discomfort is more urgent than anyone else’s. Furthermore, there is no evidence that being offended is more closely connected with being rendered dysfunctional among historically oppressed groups than among other groups.
- Poisoned environment tests require actual evidence that the creation of a poisoned environment has also undermined students’ ability to function. But even this evidence may not suffice: members of the university at large should not be deprived of the value of free speech simply because controversial speech affects a hypersensitive individual in an adverse manner. A reasonable person standard should be incorporated within any harassment code.
Our suggested test for harassment
Those who are persuaded by our argument for the philosophical value of free speech and its role within the university may reasonably go on to disagree about what sort of harassment code will best express these values. We suggest that the following two tests must jointly be satisfied in order for a speech act to constitute harassment:
- The harassing speech must single out a person or group sufficiently to make that person or group identifiable as the target of the harassment.
- The speech must employ terms that convey contempt for the individuals in a way which would cause reasonable individuals to be unable to participate in their education, or which would prejudice the education of other students (as in exchange of grades for sex).
We further suggest that the following principles guide the application of the above test:
- The fact that speech is found offensive, repugnant or insulting to an individual or group is never sufficient grounds for its restriction.
- Barring some gross breach of ethics, the doctrine of academic freedom—consisting of personal liberty to pursue the investigation, research, teaching, discussion and publication of any subject as a matter of professional interest—is a sovereign value in the university.
(This principle is designed to provide guidance in the interpretation of a campus speech code, and in particular the standard of a “reasonable person” to which codes must make reference. A reasonable person is one who attends the university on the understanding that academic freedom is a sovereign value. The fourth principle therefore implies that a person who is rendered incapable of functioning solely on the basis of exposure to the content of view-oriented speech put forward in good faith, without a gross breach of ethics, could not suffer harassment.)