Ford Government’s Campus Speech Proposal: A Good Start, but Misses the Point

While I spend a lot of my time dumping on Liberals and lefties, I’m hardly an uncritical follower of Conservative governments. Case in point, the Ontario government’s initiative to protect free speech on university campus. (Thanks to Chris Selley for flagging this)

Now, at a high level, protecting free speech is a good thing, and there ample evidence that Ontario’s universities at best don’t take the concept seriously, at worst are actively hostile to the concept in practice – examples abound, the persecution of Lindsay Shepard at Wilfred Laurier University (who was vindicated only because she had the foresight to record her persecutors so that the untruth of their positions could be exposed) Queen’s university’s program (since cancelled) to hire “facilitators” to monitor the speech of other students, countless speakers (curiously – if you’re awfully naive – usually of a conservative variety) disrupted or cancelled. So the Ford government’s commitment to protecting free speech is welcome.

And, the substantive proposal has a lot of things to like about it. It requires that universities adopt policies that, inter alia, sanction students who interfere with the free expression rights of others (the standard lefty tactic of vandalism, pulling fire-alarms or threatening violence to disrupt speakers would, presumably, be offside) and establish principles based on the University of Chicago Statement in Principles of Free Expression (currently the gold standard of commitments to free expression at American universities). So far so good.

Except… their proposed solution leaves a glaring omission. From their press release:

Colleges and universities will have until January 1, 2019 to develop, implement and comply with a free speech policy that meets a minimum standard prescribed by the government and based on best practices from around the world. The policy will not only protect free speech but ensure that hate speech, discrimination and other illegal forms of speech are not allowed on campus.

The crux of the existing problem is that university censorship is justified as a consequence of an expansive – and wholly unfounded – conception of what constitutes “hate speech, discrimination, and other illegal forms of speech”. Essentially, any speech or idea which offends the dominant progressive ideology at Ontario’s universities risks being defined as “hate speech” or “discrimination”. (On the other hand, the sort of blatant anti-Semitism of York’s annual “Israeli Apartheid” week somehow gets a pass).

Legally, of course, ideas don’t constitute discrimination under Ontario law and hate speech is defined very narrowly to only include speech giving rise to “extreme manifestations of the emotion described by the words “detestation” and “villification”” (says the Supreme Court of Canada). Yelling “kill all Jews” would fit that definition, a speech by Jordan Peterson, Lindsay Sheppard, Charles Murray, Christie Blatchford or [insert any of dozens of speakers who have been barred or had their events cancelled at Canadian universities] and a protest by a campus pro-life group (which are banned at a number of Canadian universities) doesn’t even come close. But university policies aren’t applied by people who are interested in preventing actual illegal speech (or, as the Sheppard and Peterson fiascos demonstrates by people who have any familiarity with what Canadian human rights and hate speech laws say) they’re applied by people who use words like “hate speech” not to mean the sort of speech envisioned by the Supreme Court of Canada, but to mean speech THEY hate.

The basic problem is that universities (a) don’t know what constitutes illegal speech, (b) have a long track record of interpreting the concept of “hate speech” expansively to encapsulate all sorts of legal speech, in a manner that is ideologically skewed, and (c) exercise prior restraint to censor speech because they think it will be illegal, leaving no recourse for students. Leaving it up to universities to assess what is “illegal” speech doesn’t solve the problem and leaving them a discretion to ban speech they consider to be illegal simply replicates the status quo.

So here’s an alternative, instead of allowing ignorant campus administrators (a redundant statement, I know) to determine what speech is or is not illegal, let’s leave it to the police and crowns – you know, actual experts on what is or is not illegal. If people engage in actually illegal speech on campus, they should be subject to the legal consequences imposed by law (with, needless to say, all the legal protections afforded to persons accused of a criminal offence). Universities aren’t experts at determining what is or is not “illegal” speech and shouldn’t be using their ill-informed (and, often, ideologically skewed) assessments to silence members of their community.

Instead of allowing them to “ban” illegal speech, why not commit them to reporting speech they believe to be illegal to the appropriate authorities. I have concerns with Canada’s hate speech laws, but have to acknowledge that they have been applied sparingly and (usually) appropriately (or, at least, arguably appropriately) and the courts have worked hard to limit their application to actual hate speech, while protecting speech which, while offensive (sometimes very offensive) is not illegal.

I want to like this policy, I appreciate the motivation and think it’s a good start. But, so long as universities get to decide for themselves what constitutes “illegal” speech it isn’t going to achieve the government’s main objective of ensuring that universities remain open to the free exchange of ideas.

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