Patrick Luciani: What Canada can learn about campus free speech

In this week’s Hub book review, Patrick Luciani examines Campus Free Speech: A Pocket Guide, written by Cass R. Sunstein (Harvard University Press, 2024), and highlights what lessons Canadian universities can learn from the manual when it comes to which speech should—and should not—be tolerated.

The date was March 12, 1974, at the University of Toronto. On that day, Harvard Professor Edward Banfield, a social scientist who specialized in urban issues, was scheduled to lecture on poverty in inner cities. The Toronto chapter of the American Students for a Democratic Society (SDS) claimed Banfield was a racist and was determined to prevent him from speaking.

The university administration saw trouble coming but did nothing other than suggest the event be delayed or cancelled. At Simcoe Hall, Banfield was shouted down, while several faculty members in the history department tried to protect him from the SDS mob. Campus security police stood around refusing to get involved.

Fast forward exactly 50 years to when pro-Hamas student and non-student demonstrators set up encampments covering the entire grounds of King’s College Circle at the University of Toronto for several weeks this spring before a court injunction finally shut down the illegal occupation. This time, Professor Kenneth Green from the department of religion tried to engage the demonstrators who wanted to shut down free speech. As in 1974, the demonstrators had no time for debate and instead viciously shouted antisemitic insults at Professor Green. You can read about his experience in an op-ed for the National Post. And just as the university trembled before protestors in 1974, the campus police did nothing while Jewish students suffered the taunts of Hamas demonstrators.

However, there is one difference between the two events. In the Banfield affair, a majority of faculty were outraged that Banfield didn’t get enough police protection. Today, a large part of the faculty would, in all likelihood—especially in the arts, social sciences, and humanities—sympathize with the specious claims of free speech made by Hamas allies and supporters, a trend that has gripped universities in North America and Europe.

When it comes to free speech on campus, the University of Toronto does have a policy of sorts. Freedom of expression, a “fundamental freedom,” is protected under Canada’s Charter of Rights and Freedoms with exceptions that aren’t always clear such as a clear definition of hate speech, obscenity, and defamation. More specifically, freedom of expression is protected under Section 2(b) of the Charter, but there are exceptions and limitations. Section 1 of the Charter allows for “reasonable limits” on freedom of expression if those can be justified in a free and democratic society. The Supreme Court of Canada has interpreted the right to free speech broadly (though confusingly), protecting any act intended to convey a message. Yet courts must determine on a case-by-case basis whether particular expressions cross the line into prohibited hate speech. The government can place limits on free expression, but these limits must be “reasonable” and “demonstrably justified.”

So: what do these limits mean in practice? The “Freedom of Speech Statements” by the University of Toronto governing council, approved in 1992 and ostensibly to protect campus speech, adds its own free speech flavour restricting language that may “hurt, anger or even the silencing effect that may be caused by the use of such speech.” By that measure, almost all speech can be defined as offending someone.

Words that offend sensitive ears must be forbidden but nothing is said about where that line gets drawn. This spring, Hamas supporters held up signs saying, “Zionists F Off” and “From the River to the Sea”—all fine according to the university, but any professor claiming there are only two sexes in a classroom will invite the wrath of the administration. If the lessons of On Liberty by John Stuart Mill were ever taught, they have long been forgotten.

What we need is a guide to what is appropriate or forbidden speech so all can understand the breadth and limits of language on campuses. Such a guide has just been published by Cass R. Sunstein, professor of law at Harvard University, entitled Campus Free Speech: A Pocket Guide. American free speech is protected under the First Amendment and is much broader and more tolerant of offending speech compared to Canada where the idea of “peace, order and good government”—the defining principle of Canadian values outlined in the Constitution Act, 1867–limits the tolerance of acceptable words. Sunstein’s manual makes clear that the U.S. First Amendment only applies to public (not private) universities and colleges, which puts paid to former Harvard president Claudine Gay’s claim that she was bound by First Amendment provisions that allowed hate speech unless that speech turned into actionable conduct, as she claimed before congressional hearings last December.

Sunstein’s Campus Free Speech makes clear what students and professors should know about their rights and obligations and penalties if they break free speech rules set by their institutions or the scope of free speech limitations under the First Amendment. Taking over a building or setting up encampments on private or public property is hardly an expression of free speech and suspensions should follow. A good guide to follow in Canada is the University of Chicago’s “Report on Free Expression,” which states: “Education should not be intended to make people comfortable, it is meant to make them think.” At the same time, the university must restrict speech that “constitutes a genuine threat or harassment.”

Second, students and professors can have opinions about domestic and international issues, not universities. Universities must provide a safe environment for discussion and debate and should not pronounce on positions of foreign affairs or other controversial issues that go materially beyond their scope as educational institutions. If administrations hold forth no position on these matters, protestors have no leverage to badger their schools to change their positions.

Finally, university presidents should be reminded they are not there to negotiate on behalf of their institutions as if they were private companies. As long as schools are funded by the public and laws are broken, they must prosecute and stand firm for public order and the safety of all stakeholders, and certainly not give in, negotiate with, or refrain from seeking charges against trespassing radicals (students and non-students) as they did at the University of Windsor and the University of Toronto.

A clear understanding of allowable campus speech in Canada is long overdue. Until a Canadian manual comes along, every Canadian university and College president should have a copy of Campus Free Speech. The job of a university is simple: teach, protect students from abuse, and punish those who prevent either. As my friend Neil Seeman likes to say, “To live in a free and safe community requires more than just existing.”