The Free Speech World is Rowdy

This is another in the series of "things I often find myself saying so I want there to just be one blog I can point to rather than repeat myself" posts. This one is prompted by the University of Sussex facing a (to my mind) ludicrous fine from a government organisation for failing to protect free speech whose head is, at the same time, lecturing universities on the need to "stimulate debate on contentious topics". These two aims - protect free speech, foster debate in universities - seem complementary and laudatory. But I think they are being interpreted in a way that puts them fundamentally at odds. And, what's more, the way they are being implemented at the moment creates an incentive system which will get us little open debate while punishing speech.

Cards on the table: I am closer to the "free speech purist" end of things than most. I am, for instance, pretty cynical about speech codes when they are made parts of organisational codes of conduct. I generally favour fostering detachment and keeping my eyes on more concrete material ends over seeking to regulate speech - c.f. section IV of this paper for more on my attitude about that. What is more, I generally think that if you are in a position to impose limitations on freedom of speech for whatever noble aim you might think you have, you are the sort of person who does not actually need the protection that would offer. Protecting freedoms matters in cases where you are the sort of person who would not be able to rely on institutions reliably taking your side and enforcing compliance with your preferences, even if they swear their power will be used for good ends you endorse when they seek to claim it. Seeing a bunch of universities turn their "anti-hate-speech" apparatus on people protesting war crimes in Gaza, including some disgraceful stuff here at the LSE, has confirmed me in these suspicions. Generally, I am with Rosa in thinking that "[f]reedom is always the freedom of dissenters. Not because of the fanaticism of ‘justice’, but because all the invigorating, healing and purifying aspects of political freedom depend on this essence and fail to have an effect when ‘freedom’ becomes a privilege." Quite so.

Now, avoiding that "fanaticism" of justice myself means I must grant that academic freedom exists for a purpose and that this purpose can involve some restrictions on people's right to say things. (A more careful analysis should properly distinguish academic freedom from freedom of speech - I am going to follow the public discourse and not do that here, but the Levy paper just linked is right to make the distinction imo.) There is no moral, and should be no political or legal, duty of biology departments to continually debate creationists. That is simply not conducive to the research and teaching mission of universities. So I am closer to the purist end without being all the way there; it's more a matter of attitude. Because my instincts are to let a thousand flowers bloom, I am a Veteran Of The Internet and had people on social media angry at me en masse a few times and have got by all the same. So I am sure some of the below reflects my personality and its dispositions more than anything else.

Now, caveats being emptored, let me say what it is that bothers me about the UK's current attitude to protecting campus free speech. What bothers me is we let "chilling effect" arguments constitute violations of our free speech, as per the Education Secretary quoted here. The same article quotes Dr. Ahmed, head of the Office for Students' free speech wing, saying his group were "concerned that a chilling effect may have caused many more students and academics at the university to self-censor". So it seems that the earlier cited fact that "[p]osters were put up on the campus calling for [Kathleen Stock] to be sacked, and students turned up with placards at an open day" is the sort of thing that prompted action here. And I think that is absurd. I think that leads to violations of free speech, like the one Sussex is suffering from!

Free speech protections only arise as an issue where there is controversy. If nobody felt particularly strongly on a matter the issue simply doesn't arise. But if, say, someone publishes a paper saying "Black people are less intelligent than white people" then presumably black people are not going to like that. So maybe me and my buddies decide to express our unhappiness publicly with our (free!) speech, and stand in the campus quad shouting "fuck that guy". Indeed we might even say that he should be fired, or at least never have been employed. Well, this is all very heated, all very rowdy... but so far no one's free speech rights are being infringed. You could make the case that if anyone calls for the person to be fired then they are clearly calling for a world with less free speech, but unless there is some serious reason to believe that us saying this will actually prompt action from the university so far it's all just so much hot air. In fact, all this is what we should expect it to look like in a world with free speech protections! People have the freedom to say stuff that upsets others, and those who are upset have the right to make it clear how they feel about this and the person saying it. They may even be unreasonable in so doing. That's what happens when you are angry! This is the sort of issue where free speech protections actually matter, and so far they are working as planned.

Chilling effect arguments allow this to get transmuted into a bad thing!

Because now suppose the 1st person claims they can't publish their follow up paper ("Black people are ugly") because they're afraid of me and my buddies saying mean things about them. Sure, they weren't actually fired, but us saying we thought they ought to be was very distressing. Since they don't want to be distressed they don't want to publish the paper since they know that will start a causal chain that ends up with them feeling distressed. Now, if that counts as a reason for state action to punish the university (unless the university takes proactive steps to silence us) then suddenly speech has become punishable! But it's the protestors whose speech is suppressed, all in the name of protecting free speech! (And notice how the chilling-effect way of framing things inevitably favours those who are less likely to have people saying stuff about how much their group sucks. Restrictions on free speech are, ever, a tool to protect the antecedently powerful; they only ever can be.) The inevitable rowdiness of the world with free speech is taken as reason to suppress speech! 

The lesson I take from this is: a genuine regime of free speech requires an attitude of learning to accept that people will be rowdy and mean and unreasonable and say you shouldn't have a job and all sorts of things. Sometimes this will, genuinely, suck and be unreasonable. Free speech is better if we all display virtues of reasonableness and keeping a calm head - and we don't always! (I initially included links to work illustrating the sort of unpleasant statements that get made re black people, but I eventually decided not to precisely because I didn't trust readers not to go and harass the author(s).) I am not saying we should celebrate that people do this, only that our means of responding to it should not be to institutionally punish them. 

Because that's what free speech has to involve. It's gotta be, in part, the freedom to do and say bad stuff! If you want freedom you have to accept people will not always use that well. If you want freedom but only for when people are saying nice reasonable stuff, in a calm fashion, that doesn't ruffle feathers, and wherein nobody ever feels pressure to change their mind or conform to the anger of their peers... then you don't want freedom of any sort, let alone freedom of speech.

Now, as I said, I am towards the purist end but not all the way there. There's no reason for an academic organisation to tolerate sustained personalised bullying in the name of "the bully has the right to defame you and libel you and call you names because they think you're ugly" or something. (Though fwiw my admittedly inexpert opinion is that British libel law has traditionally been a means for the rich to suppress the speech of the poor, so even there I have some worries.) Likewise threats of violence or the like can't be defended by saying "I didn't stab you, I just said you ought to be stabbed and then listed your home address and daily walk habits to a large crowd of knife wielders". These are cases wherein it's fairly easy to say they simply do not fall within any viable notion of academic freedom. But since there may well be difficult cases too, or cases where you suspect a surface-read reasonable anti-bullying policy is being used to suppress speech in an unacceptable ways ("I feel bullied when economics papers are published that do not endorse the labour theory of value!")  I even agree that some degree of regulatory oversight can be fine here. But what is core to me is that none of these exceptions license chilling effect arguments being used to implement legal or institutional sanctions. 

Whatever reasons there are that might justify the state saying that free speech is not being protected, the fact that some people felt intimidated by the permitted rowdy and contentious speech of others cannot be among them. Yet our supposed defenders of free speech continually resort to this cowardly line of argument, and ironically enough end up being the greatest enemies of free speech there are, given their support from powerful factions in the state, press, and even some upper administrations. As it now stands in the UK - the safest response to the state's endorsement of chilling effect arguments for any academic institution is more or less just to clamp down on any protests that arise when one group reacts badly to the speech of another. 

But why stop there? Safest of all would be just to prevent anyone saying anything that might cause a protest in the first place. Of course you couldn't quite do that directly without bringing the regulator down upon you. But by imposing differential costs on having different kinds of speakers, choosing who you hire and who you fire, and so on, you can approximate to this. A university filled with anodyne, bland, nobody-cares conversations, being held by people with no emotional investment in what they discuss -- this is the safest way of all to ensure that no speech is ever chilled. And just in case that doesn't work, to protect the freedom thus provided, the state will ensure any speech that might knock us out of that equilibrium is punished.