The Travails of Free Speech

‘Freedom of expression is the foundation of human rights, the source of humanity, and the mother of truth.’

Liu Xiaobo, 2010 Nobel Peace Prize Winner

On Wednesday 20 February 2013, the University of Essex sought to host the deputy ambassador of Israel, Mr Alon Roth-Snirto to speak about Middle Eastern politics and the Arab-Israeli conflict for a select number of students on degree courses in the Department of Government.

The details of the event were made public a few days before, which prompted a number of students within the student union to mobilise against his appearance. On the day, it is estimated that 50 to 100 students started a demonstration outside the lecture theatre block where the Deputy Ambassador was meant to speak. His speech was interrupted, relocated and then abandoned altogether.

The student union claimed victory for their protest action and the University claimed that the students had compromised the principle of free speech. The University argued further that the actions of some students went beyond legitimate forms of protest and may well have contravened University policy as well as student union policy. The University announced that an investigation would be started into the incident. The story is covered in the Student Union’s Rabbit Newspaper.

This event reminded me of my days as a student in the 1980s at the University of Pennsylvania in Philadelphia. At that time, the students protested the University’s investment policy in South Africa to put pressure on the Apartheid regime to leave power and bring about a democratic transition. We also discussed the principle of free speech in our constitutional law classes, our politics of Latin America classes, and our history of modern Europe classes.

In my final year at Penn (1988), Louis Farrakahn, leader of the Nation of Islam was invited to the University to give a speech, this at a University whose student body was about 30% Jewish. The event was controversial but it was not cancelled. The New York Times reports that,

‘Mr. Farrakhan’s appearance is being billed by its sponsors, a coalition of 10 campus groups, as an exercise in the defense of freedom of discourse on behalf of black students who say they believe that Mr. Farrakhan’s views have been distorted and who want to hear him for themselves.’

The 1980s had other memorable free speech events, most notably the exhibition of the publicly funded photographic work of Andres Serrano, entitled Immersion (Piss Christ) in 1987, which features a plastic crucifix immersed in a jar of the artist’s own urine, and the flag burning case Texas v Johnson, where during a communist rally in Dallas, Mr Johnson set an American flag on fire.

This latter case was brought into my own after dinner discussions at home as my father, a naturalised American citizen (he had emigrated from the Netherlands in 1955) was very upset at the flag burning act itself and initially wanted the Supreme Court to uphold the rights of states to ban flag burning. I argued at that time that to allow flag burning would uphold the very principles for which flag stands. I too find flag burning morally reprehensible, but I also know that the rights for which the flag stands are far more robust than isolated incidents of anti-Americanism.

In both cases, the principle of free speech prevailed. Senators, religious leaders, and commentators have been incensed by the work and that funding from the National Endowment for the Arts had supported Serrano’s work; however, it has featured across a variety of art exhibitions and retrospectives. The work was subsequently vandalised in Avignon in 2011. The majority decision in Texas v Johnson upheld the principle of free speech, even though the justices were not happy with the result. In the concurrence with the majority opinion written by Justice Brennan, Justice Kennedy argued,

‘For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.’

Now back to the University of Essex. A debate has ensued on campus between the leadership of the student union, dissenting members of the student union, academic staff, and University officials (although their role is not necessarily to debate but to apply University policy).

The student union leadership position can be broken down into two syllogisms. The first makes a logic of equivalence between Israel’s policy and the Apartheid regime in South Africa:

  1. The Apartheid regime in South Africa used oppressive force against black South Africans
  2. Israel uses oppressive force against the Palestinians
  3. Therefore Israel is an apartheid regime

The second syllogism argues why the Deputy Ambassador should not appear on campus:

  1. Representatives of Apartheid regimes do not have the right to speak at Universities
  2. The Deputy Ambassador is the mouthpiece of the Israeli Apartheid regime
  3. The Deputy Ambassador has no right to speak on campus

Whether such syllogisms stand up to logical scrutiny is not really relevant for this discussion. Even if they do pass a strict test of logic, there is still a very strong case to be made on the grounds of free speech for the University to allow the Deputy Ambassador to appear on campus.

The dissenting members of the student union argue that the University is meant to encourage free speech and that regardless of Israeli policy or the characterisation of the regime as Apartheid: (1) the deputy ambassador has the right to speak and (2) the students have the right to attend and engage in intellectual debate and argumentation to test the claims that would have been advanced by the Deputy Ambassador.

The university agrees with the dissenters, and so do I.

As I am teaching a course called the Comparative Politics of Human Rights, I wanted to address this issue in my class. To place our discussion in the context of the International Law of Human Rights, I began with Article 19 of the 1948 Universal Declaration of Human Rights:

‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’

And followed with Article 19 of the 1966 International Covenant on Civil and Political Rights

‘1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.’

I then showed the Serrano picture, the Farrakahn case, the Johnson case, and added the case of a recent approval from Memphis Tennessee of a march led by the Ku Klux Klan. I then showed pictures of the student protests on campus at Essex and opened the discussion.

What ensued was a mature one-hour debate on free speech, the nature of the Israeli regime and the role of the University in modern life.

There was overwhelming support for the principle of free speech. What I do find interesting is that a small proportion of the student body was able to deny the right of free speech both to the speaker and to fellow students. Moreover, the event raises the further questions concerning what other regimes this small proportion of the student body finds reprehensible and therefore ineligible to speak on campus.

Israel has sought an audience on other campuses and run afoul of other student protests (e.g. Manchester). Further afield, the President of Iran Mahmoud Ahmadinejad was allegedly invited to a dinner at Columbia University (see commentary from Stanley Fish in the New York Times), while a controversial speech from Narendra Modi (Governor of the State of Gujarat) was cancelled at the Wharton School of Business at the Univesity of Pennsylvania.

These cases and the general principle of free speech intrigue me, as much of my work takes place in parts of the world where such a fundamental right is not so guaranteed (hence my quote from Liu Xiaobo above). The jurisprudence on Article 19 of the ICCPR and two general comments (GC10 and GC34) from the UN Human Rights Committee suggest that these kinds of speech events at Universities are consistent with the principles therein, and that forced cancelling of such events runs counter to the fundamental rights of freedom of expression and freedom of opinion.*

I only wish the small proportion of students that disrupted the event at Essex would reflect on this contrast and value the freedoms that are upheld in the UK in general and at our University in particular.

~

*For in-depth analysis of the principle of free speech and Article 19 of the International Covenant on Civil and Political Rights, see O’Flaherty, Michael (2012) ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment 34,’ Human Rights Law Review; de Zayas, Alfred and Martín, Áurea Roldán (2012) ‘Freedom of Opinion and Freedom of Expression: Some Reflections on General Comment 34 of the UN Human Rights Committee, Netherlands Human Rights Law Review, LIX: 425-454.

One Response to “The Travails of Free Speech”

  • “(2) the students have the right to attend and engage in intellectual debate and argumentation to test the claims that would have been advanced by the Deputy Ambassador.”
    That’s for me the necessary compensation for free expression of any idea. We know how influential can be a good knowledge of rhetoric on people. The confrontation of ideas and arguments is the best and unconditional way to preserve the idea of free speech in a democratic perspective. Where controversy is not allowed can we really talk about free speech ?
    However, should we presuppose that the listeners have the necessary analytic tools to decrypt any speech ? If not, is it a fair situation ? But who decide when the situation is fair enough to allow free speech ? I think there is no definitive answer to these questions, only opinions.

Leave a Reply