Universities across the anglophone world have increasingly felt the burden of having to prove that they remain bastions of free speech.
In the US, Donald Trump recently signed an executive order committing colleges to protect free speech or risk their access to a $35 billion (£27.1 billion) federal funding pool. The order tasks funding agencies with ensuring that recipient institutions “promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies”. Given the vagaries of this phrasing and the fact that institutions must already adhere to applicable laws to qualify for federal funding, US university leaders expect business as usual. But the fact that the order was issued at all says a lot about the level of concern.
It is the same concern that has led to parliamentary inquiries and ministerial warnings in the UK, and that prompted the Australian government, late last year, to commission a review of freedom of speech in universities (which also included a discussion of academic freedom and institutional autonomy).
Undertaken by the highly respected former chief justice Robert French, the review was specifically tasked with considering revision and clarification of the federal Higher Education Standards Framework, including outlining options for a sector-led code. After the publication of the report last month, the minister for education, Dan Tehan, encouraged universities to adopt the recommended code. But what seems to be universally agreed, including by the reviewer himself, is that this is principally a matter of addressing the perception of a crisis, rather than any real one.
The fact is that there is no special authority at any university to enable or restrict free speech. But, by the very nature of their mission to nurture critical thinking, universities encourage free, respectful and civil expression of speech and ideas. And while Australia has no legislative right to freedom of speech, it does have an implied constitutional protection of freedom of political expression.
That does not mean freedom from consequence, however. If people are free to express an opinion, others are equally free to challenge it, regardless of who expressed it. Freedom of speech is a two-way street.
Others are also free to protest. The existence of robust disagreement and protest within legal boundaries is itself a key component of the exercise of freedom of speech – and not a sign of institutional censorship.
There are also various federal and state laws that restrict freedom of speech, pertaining to vilification, discrimination and defamation. These are restrictions that we expect as part of a just society.
And yet the perception of censorship lingers – just as it also does in the UK, despite the BBC’s finding last year that, across 120 universities, there had been just six occasions since 2010 when speakers were cancelled as a result of complaints, no instances of books being removed from libraries or banned, and only seven student complaints about course content (four of which resulted in action being taken).
The French report recommends that its model code stand above other university policies. But there are two problems. First, should some universities choose not to sign on, the perceived problem of institutions working with disparate policies will remain. Second, it calls into question the notion of university autonomy – the right to exercise judgement and make sensible, informed calls, free from government interference, including about who speaks on campus.
The various pieces of federal and state enabling legislation for universities prescribe autonomy, and the French review itself refers to its importance – which then prime minister Robert Menzies connected in a 1964 speech at UNSW Sydney to the protection of universities from government interference through “political executive directions”.
But the fundamental problem with the response to the perceived issue of freedom of expression is that it seeks to make a special case around universities, as distinct from other organisations. This opens a Pandora’s box, legally and practically, in terms of interpretation and is unjustified in principle: protection of free speech should apply uniformly across society without different requirements for different institutions.
If the government really wants to protect freedom of speech, it should enshrine it in the constitution, as in the US, or through a universal legislative mechanism. But neither is necessary. The fact is that the French review was a response by the government to a small section of the community who objected to a handful of speakers on a few Australian university campuses, and staged protests against them. That is all.
Universities in Australia have a long tradition of acting as bastions of free speech and will continue to do so. As we have said numerous times, and as the findings of the French review endorse, there is no crisis of freedom of speech on our campuses.
Ian Jacobs is president and vice-chancellor of UNSW Sydney. Susan Dodds is professor of philosophy and dean of the Faculty of Arts and Social Sciences at the same institution.
