- Nonetheless, if there’s a place in society where the high ground on free expression should be consistently held, surely it’s on university campuses.
- Read more:
Defending space for free discussion, empathy and tolerance on campus is a challenge during Israel-Hamas war
Conservative campaign promises
- When majority Conservative governments came to power in Ontario in 2018 and Alberta in 2019, they quickly implemented campaign promises to compel post-secondary institutions to create or update their free expression policies.
- These policy shifts arose in response to the perception of a “crisis” of free expression at universities that has gained momentum over the past decade.
‘Chicago Principles’ and free expression
Alberta instructed post-secondary institutions to endorse “the Chicago Principles,” a policy template with origins at the University of Chicago, and Ontario told post-secondary institutions to consult the Chicago Principles in creating or updating now-required policies. Key pillars of the Chicago Principles are:
It’s up to the university community — not the administration — to make judgments about the merits of campus expression.
The proper response to problematic expression is argument rather than censorship. In the words of the report that spawned these principles: “The university’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the university community to be offensive, unwise, immoral or wrong-headed.”
Universities ought not “shield individuals from ideas and opinions they find unwelcome, disagreeable or even deeply offensive.”
Widest possible latitude for expression
- Yes, but you should still call them out
The principles envision the widest latitude possible for campus expression, subject only to narrow time, place and manner restrictions (to ensure the proper functioning of the university) and any applicable legal prohibitions (that is, criminal hate speech and anti-discrimination legislation).
- The Chicago Principles are relatively uncontroversial for an academic environment, even if they reflect American laws that are much more tolerant of harmful expression.
- Furthermore, most expression that sparks campus controversy exists in a grey area between the controversial and the potentially discriminatory.
Challenges responding at universities
- Following Hamas’s attack on Israeli civilians and Israel’s siege of Gaza, university administrations have issued statements condemning discriminatory forms of expression and intimidation.
- In response, some faculty and students have questioned administrations and are accusing them of bias and silencing dissent.
Disagreement on expressive harms
- Within academic communities, there is intense disagreement about which forms of expressive harms ought to result in expressive restrictions.
- To complicate matters further, universities have significant discretion in their decision-making in the context of expressive restrictions.
Legal remedies, questions of university mission
- Universities can exercise their additional discretion and restrict expression if they believe it compromises their mission (facilitating an inhospitable environment) or rely solely upon the reasonable limits established by Canadian jurisprudence.
- Given redoubled efforts to protect expression in Ontario and Alberta, universities arguably bear the burden of showing that any expression they restrict at least appears to cross a legal threshold.
Conservatives embracing restrictions?
- However, the dilemma for some conservative politicians, parties and pundits who have insisted before now that free expression is imperilled on campus is more daunting.
- Ontario Premier Doug Ford’s government recently took the extraordinary step of barring Sarah Jama, an NDP member of the Ontario legislature, from speaking in the legislature in response to her criticisms of Israel.
Will calls for censorship grow?
With no sign of campus unrest relenting, calls for censorship may grow. In theory, compelling universities to conform to the Chicago Principles means they bear a greater obligation to protect expression that is within the bounds of law. But given the backlash and legitimate concern about discrimination and hate, how universities will navigate this fraught time is far from certain.
Dax D'Orazio receives funding from the Social Sciences and Humanities Research Council of Canada. He is affiliated with the Centre for Constitutional Studies and Centre for Free Expression.
