How to Balance Free Expression with Protection from Harm?

Our tolerance for expression that we value often exceeds our tolerance for expression we find distasteful. 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.

While universities are expected to foster robust debate on a range of contentious and controversial issues, finding the right balance between free expression and protection from harm is no easy task.

University campuses across Canada and the United States have been concerning incidents of antisemitism and Islamophobia. Prime Minister Justin Trudeau says antisemitic and Islamophobic incidents have left Canadians “scared in our own streets.”

In Ontario and in Alberta, university decision-making will be an important test of recent university policy shifts pertaining to free expression.

A ‘crisis’ of free expression?

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 “crisis” of free expression at universities that has gained momentum over the past decade.

They also followed high-profile expressive controversies on campus — like the Jordan Peterson and Lindsay Shepherd affairs in 2016 and 2017 respectively. Provincial policies were intended to address what some conservatives believe is an inhospitable environment for them on campus.

Alberta touted its comparatively collaborative approach, and Ontario explicitly threatened funding cuts for non-compliance.

Ontario reported every public college and university complied, and Alberta reported every institution obliged with the exception of Burman University, for religious reasons.

How the ‘Chicago Principles’ offer a wide latitude for 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.”

While the Chicago Principles emphasize civility and collegiality, they also argue the absence of these values ought not be invoked as a justification for expressive restrictions, even in the context of “offensive or disagreeable” expression.

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.

But applying them to a Canadian context is easier said than done. Although institutional policies now reflect them in some form, there is still some variability between them. Furthermore, most expression that sparks campus controversy exists in a grey area between the controversial and the potentially discriminatory.

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.

At York University, the administration gave student unions an ultimatum in response to an open letter that it says has been widely interpreted as a “justification for attacking civilians and a call to violence.”

As a result of such controversies, the reasonable limits for expression are being redefined in real time.

Expressive harms, expressive restrictions

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. It’s subject to a deferential standard of “reasonableness” in administrative law, and Canada’s strongest protection for free expression — Section 2(b) of the Charter of Rights — scarcely applies at all.

Universities are faced with the dilemma of what to do about expression that may not be discriminatory as a point of law.

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.

Each option has costs and benefits. In the context of polarizing issues, university decision-making will rarely satisfy everyone.

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.

Campus unrest continues

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.

In response to campus reactions to the conflict in the Middle East, the National Post recently said “universities need to be fixed,” including “reprimanding the most egregious professors.”

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.