In the general public sphere, expression is subject to relatively few legal restrictions. Canadian law includes ‘content’ restrictions on obscenity, hate speech, defamation, and false advertising. There are also laws that regulate the time or location at which expression may occur and are concerned with coordinating expression with other activities in public spaces.
Expression may be subject to greater limits when it occurs in a particular institutional context. While racial generalizations and insults may not breach laws against hate speech (which catch only a narrow category of extreme speech), when they occur in the workplace or in the schools they may be treated as harassment or discrimination. The employees of a workplace are a captive audience, and so cannot easily avoid insults from co-workers. Different standards of civility or respect apply because the workplace is both closed and hierarchical and because it has a particular function that may be undermined by these forms of speech. The workplace is not a democratic forum, a place of free and open discourse, even if employees retain expression rights that are compatible with its function.
A university campus is a workplace and a place of learning. To what extent should the free speech rules then be different on campus? Should there be enforceable standards of civility and respect similar to other work places – or should campus speech be treated in the same way as speech in the larger public sphere? A commitment to academic freedom supports the free and open exchange of ideas and information but also certain standards of communicative engagement – most notably the treatment of others in the academic community as interlocutors, as conversation partners, who should be addressed and listened to.
Speech may be subject to significant limits in the classroom or meeting-room, concerning who speaks and when, and the manner and subject of the speech. Exchanges in the classroom should be respectful. The rules of speech are different, and stricter, because the classroom is a place of learning based on thoughtful discussion, because the members of the class are in an ongoing relationship, because they are part of a captive audience, and because there is a hierarchy in the classroom based on the teacher’s authority. The rules of speech may also be stricter in a university dormitory. Individuals should be free of discriminatory speech in their living environment.
But what about speech outside the classroom or residence – that is part of a political event in a ‘public’ space or a space designated for extra-curricular events? Should speech that occurs on campus in contexts other than the classroom be subject to rules of civility or respect enforced by the university that are stricter than those applied to general public discourse? A university is not like other workplaces. The advancement of its educational purpose or mission requires free inquiry and open debate. Speech that questions established wisdom must be given significant protection, even when it is expressed in strong, even harsh, terms.
The right of a student or staff member to express her or himself in the common spaces of the university should be similar to the individual’s right to communicate in public spaces such as the parks. However, while the university’s educational mission may require the protection of free expression, it may also justify the imposition of certain limits on the scope of that protection. The members of the university community have ongoing relationships. They work, and sometimes even live, together. The university’s educational purpose – the exploration of ideas, the advancement of knowledge - is realized through dialogue and engagement. The objection to sexist or racist speech on campus is not, or not simply, that it is irrational and sometimes vitriolic and so unlikely to contribute to thoughtful discourse; it is more significantly that this speech seeks to undermine the standing of some community members. Students and faculty are members of an academic community, dedicated to learning and scholarship, and ought to be addressed and heard. Even if in the larger public sphere all values and assumptions are open to debate, in an educational community speech that questions the equal membership of some based on their race or gender should be limited. Racist or sexist speech, even when it is not so extreme that it breaches the Criminal Code or human rights codes, is appropriately restricted by the university.
A general ban on racist or sexist speech on campus is not without difficulties. The first is the difficulty in defining the scope of such a ban. Because less extreme forms of discriminatory expression, such as stereotypes and insults, are so commonplace, it may be difficult to establish clear rules for their identification and exclusion. Stereotyping, in subtle forms, is everywhere and so cannot realistically be banned from campus. The regulation of discriminatory speech on campus then will require the administration to draw difficult distinctions based on its assessment of the meaning and potential harm of different speech acts. Because the lines are so unclear, the university’s response to discriminatory speech on campus should primarily be educative rather than punitive.
Secondly, university administrators may be tempted to define the scope of unprotected speech quite broadly to avoid visible strife on campus or to appease alumni. The desire to maintain the institution’s public image or the good will of alumni may lead administrators to improperly shut down expression that falls within the ambit of academic freedom or freedom of expression. The university may try to do this directly through a ban on a particular event or speech or indirectly through the imposition of security costs on demonstrators or the sponsors of an event.
University administrators have struggled with the issue of counter-demonstrations, which seem to occur on campuses with increasing frequency and force. Such demonstrations often occur when an individual, who has been invited to speak usually by a campus group, is thought by others on campus to represent views that are offensive or bigoted. There are several reasons why counter-demonstrations may be more common and more heated on campus. The members of the university community often feel they have a stake in what happens on campus. Universities are not open to all speakers. Some individuals are invited and others are not. Members of the university community are within their rights to argue that someone should not have been invited because their views are foolish or hurtful. However, there have been a few occasions (far fewer than media reports might suggest) when protestors on Canadian campuses have sought to prevent an invited speaker from addressing an audience. If the speaker’s expression does not cross the line into racist or sexist speech then a counter-protest must not be allowed to interfere with the event. While the university may be concerned about the reaction spinning out of control and leading to violence, it must not respond by suppressing the speech – it must not submit to ‘the heckler’s veto’ - except in extraordinary circumstances, when no other response is practically available to prevent violence.
If the scope of the restriction on discriminatory speech is broad and its boundaries unclear and open to contest, the members of the university community, who are accustomed to significant autonomy in speech and action, will sometimes seek to enforce their own views about when speech should or should not be permitted. Importantly, though, this is an issue that cannot be decided by individuals or groups on campus but must be resolved according to standards and practices established by the institution. An individual may decide to engage in non-violent civil disobedience as a matter of conscience. But that it a different matter.