PROFESSOR RICHARD HAIGH
<Contributor>
In 1964, the Free Speech Movement formed at Berkeley in California. It began as a student-led rebellion against university attempts to restrict student speech. In the end, it extended well beyond California and beyond basic issues of free speech: students in all major universities gained greater freedom and self-determination and ridded campuses of archaic rules of behaviour and decorum that had been in place since the modern university began.
In over four decades since, it has been assumed students and universities across North America continue to benefit from the battles fought in the 60s. But the reality is less clear. If one looks closely, any forward steps made in the 60s have been illusory. It has been more like a crab walking: forwards, sideways and backwards, virtually all at the same time.
For example, as far as I’m aware, all Universities now publish codes of conduct and limit the types of posters that can appear on campus. These policies may regulate diverse areas of campus life, such as sanctioning inappropriate behaviour during classroom discussions, setting out both approved and outlawed campus activities, and controlling acceptable content and placement of posters. In many cases, therefore, the rules relate to, and often restrict, the constitutional right to free expression (let’s ignore the fact, for now, that Universities may be exempt from the application of the Charter).
York University is no exception. Here are two excerpts, the first from the Student Handbook of Rights and Responsibilities, the second from York’s postering policy:
1. Students have the following rights and responsibilities:
- the right to freedom of inquiry, expression and assembly on campus and the right to engage and participate in dialogue.
- the responsibility not to disrupt or interfere with University activities, to uphold an atmosphere of civility, honesty, equity and respect for others which values the inherent diversity in our community.
- the responsibility to consider and respect the perspectives and ideas of others, even when the student does not agree with their perspectives or ideas.
As the Handbook notes later on, these rights and responsibilities can be interconnected. So, the right to participate in dialogue must be tempered by the complementary right to expect respect for one’s personhood and the responsibility to behave civilly. These, the Handbook explains, are achieved by determining an “appropriate balance.”
2. Postering Policy
- under “Permitted Posters,” s 2 states that a “poster that advertises an event…may only be posted on University property with the prior approval of the Department of Campus Services and Business Operations (which may assess an appropriate fee);”
- under “Restrictions,” s 3 states that posters shall normally be in either English or French or both, and s 6 states that posters are prohibited “on or inside commercial advertising signs.”
Thus, most of the postering provisions can be classified as prior restraints: that is, they set out rules that outline acceptable postering, and require an adjudicating body to approve them before allowing public display.
So what are the free speech concerns? A strong proponent of free speech would likely claim that it is not the role of a university to be a moral guiding light for society. Universities are, first and foremost, centres of higher learning. And we learn, most frequently and optimally, by testing competing hypotheses, by allowing ideas and opinions to clash against each other, and by tolerating a fair amount of disharmony. Tenure and academic freedom are both ideas that promote this at the faculty level. Codes of conduct and regulating posters, unfortunately, promote the opposite, especially within the wider staff and student community.
On the other hand, the concerns expressed by those in favour of such codes are usually connected to another constitutional right – that of equality. The need to correct abuses of power is more important, in this context, than untrammeled freedom of expression. In fact, the argument continues, such codes lead to more fully realized expressive rights – setting out students’ responsibilities, and reviewing posters before they are posted, can assist in ensuring that marginal and vulnerable groups are heard.
Who’s right? Maybe both; maybe neither. I don’t know if we can honestly answer the question without further experimentation. What I’d like to suggest is something that might have received the blessing of the Free Speech Movement.
The idea came to me as I read about traffic experiments taking place in Europe. In Drachten, the Netherlands, an innovative traffic engineer named Hans Monderman came up with the idea of removing virtually all road signs and markings, curbs and other traditional visual cues that separate cars and pedestrians, creating a much more inclusive “shared space.” So far, somewhat counterintuitively, it has made the streets safer. Nothing on the streetscape tells drivers what to do. Thus, they take extra care and show everyone more consideration. In short, everyone ends up acting more reasonably. Social norms, continually negotiated by drivers, pedestrians, shopkeepers and others, guide behaviour.
I’d like us to try the same thing at York. Let’s get rid of the conduct codes and the postering policy for one year. Let’s make a big splash about it: President Shoukri should announce the idea, promoting it as a new experiment in which York University members will be looking after and monitoring themselves. Incoming students can be made aware of how York is, once again, at the forefront of post-secondary education in Canada. And, at the same time, as with drivers in Drachten, the responsibility to be reasonable, to feel the danger inside oneself instead of having it imposed from above, will rest with all of us.
Like many local bylaws and traffic laws, codes of conduct and postering tend to be clumsy, cumbersome, heavy-handed, over-broad and often unenforceable. Social norms are lithe, flexible and negotiable. They are, to put it bluntly, more human than codes and laws. I think that they would allow, in the university environment, both free expression and equality to flourish. Or at least, after a year, we’d know a little more about the truth of that. After all, that’s an important goal of free expression.
ILP will have a Free Speech Wall located in Gowlings Hall during the entire course of Advocacy Week, March 4th-8th, 2013.