Freedom to talk rubbish

A good primer on US law fails to look beyond the parochial in this global age, says Terence Kealey

May 29, 2008

This is a wrong-headed book. Robert O'Neil's thesis is simple: academics are a breed apart and, like medieval jesters, they should be free to say what they want, when they want, on any topic that takes their fancy. Their opinions are sacred.

So, for example, O'Neil applauds the decision of Northwestern University (in Chicago) not to sack Arthur Butz, a professor of electrical engineering, who denies the Holocaust. Because Butz is an academic, O'Neil believes his freedom to speak to be paramount.

But, oddly, O'Neil would have sacked Butz had Butz been a professor of modern European history. The consensus within the profession of history is that the evidence in support of the Holocaust is overwhelming. Consequently, O'Neil would sack a Holocaust-denying historian for flouting professional norms. But because Butz is an electrical engineer, and because he does not deny the Holocaust in the lecture theatre, O'Neil would protect his freedom to talk rubbish.

So for O'Neil, the major restriction on academic freedom must be only professional competence. Which means, therefore, that a contemporaneous O'Neil would have dismissed Galileo from the Italian universities for his then-unprofessional views on the solar system, would have agreed with the universities of Glasgow and Edinburgh that David Hume's atheism was then professionally incompatible with his holding a chair of philosophy and would have agreed with the University of Marburg that Alfred Wegener's then-unprofessional views on continental drift were incompatible with his holding a post in geology.

Let me explain what academic freedom actually is. It is not a licence to make a fool of oneself, nor does it exonerate herd views. It is the freedom to hold views that have been forged by the application of the academic method. The academic method (aka the scientific method) was elaborated by Sir Francis Bacon in his 1605 book The Advancement of Learning and, despite some subsequent modifications by later thinkers, it remains largely as Bacon described it - namely, a four-step process of observation, induction, deduction and experimentation. Academic freedom, therefore, should protect scholars whose views have been created by that process.

But only by that process. The evidence for the Holocaust is overwhelming, so Butz's holding a chair in electrical engineering is no defence for denying it. Had Butz criticised the methodologies of standard Holocaust scholarship, and had such criticisms led him to conclude that the field was intellectually flawed, his would have been a legitimate story; but on the evidence provided in this book Butz is no scholarly critic but rather a bigot, and such bigotry was exposed by Deborah Lipstadt in her court victory over David Irving. Lipstadt, moreover, who is a professor at Emory University, would have sacked Butz. I wouldn't gainsay her.

But the name "Irving" does not appear in the index. Indeed, this is a parochial book. O'Neil is a professor of law at the University of Virginia, so he claims that academic freedom starts with the founding of the University of Virginia in 1826 and is secured by various US Supreme Court judgments dating from the 1950s. As for the rest of the world, Canada gets a dismissive paragraph and Germany a dismissive sentence. That's it. Socrates, Frederick's Constituito Habita (the 1158 defence of academic freedom), Wycliffe, Rashid al-Din's Jami al-Tawarikeh (1302), both Bacons and Humboldt's faith in Lernfreiheit (the right to study freely) and Lehrfreiheit (the right to teach freely) get not a nod.

And being so US-centric O'Neil proselytises one further restriction on academic freedom: he condemns scholars who disparage religion in class. Excuse me? As Voltaire showed, the only respectable intellectual position towards religion is one of disparagement. Transubstantiation, the Virgin Birth, Papal Infallibility? Please.

A further problem is that the book is poorly structured, repeating itself endlessly. We must have been told seven times, to take but one example, that during the McCarthy era more than 100 US academics were dismissed for failing their loyalty oaths.

And yet this is a good book for one particular audience. As a primer on America's laws of academic freedom, it does an excellent job. It is comprehensive, the author's prejudices are signalled so that the reader can discount them, and it is calmly written. The chapter on IT law (who has the right to open your university e-mails?) was particularly interesting.

But it was also non-definitive because US law is such a mess. Almost every trial judgment in cases of academic freedom disagrees with almost every other trial judgment, and furthermore they are almost all overturned on appeal (the appeal courts themselves disagreeing with each other endlessly). If that's the common law, no wonder Napoleon rejected it.

What the world now needs is a book on academic freedom written by an historian or a philosopher who can take a global view while also addressing cyberspace. And if that book could take a sideswipe at America's baroque system of law it would be a bonus.

Academic Freedom in the Wired World: Political Extremism, Corporate Power and the University

By Robert O'Neil

Harvard University Press, 320pp, £22.95

ISBN 9780674026605

Published 8 February 2008

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