Open Access Publisher and Free Library
HUMAN RIGHTS.jpeg

HUMAN RIGHTS

Human Rights-Migration-Trafficking-Slavery-History-Memoirs-Philosophy

Posts tagged freedom of expression
Misunderstanding University Speech: The Woodward Committee Report

By Robert Post

The 1974 Woodward Committee Report at Yale University is regarded as an “authoritative” and “timeless” defense of freedom of speech on university campuses. The Report was commissioned by Yale President Kingman Brewster after student protests prevented Stanford physicist William Shockley from speaking on campus in response to the invitation of a student group. Students objected to Shockley’s racist views. The Report argues that free expression is the “central purpose” of a university, and that therefore speakers’ rights should take precedence over considerations of respect and civility. The Report asserts that the rights of speakers should be “unfettered.” The Report is throughout influenced by the First Amendment opinions of Justice Oliver Wendell Holmes, Jr.

This article argues that the Woodward Report fundamentally confuses freedom of speech and academic freedom. In the American constitutional tradition, freedom of speech is a speaker-oriented right whose purpose is to ensure that “authority . . . is to be controlled by public opinion, not public opinion by authority.” Because the First Amendment stands as the guardian of American democracy, every person enjoys an equal constitutional right to participate in the formation of public opinion. For First Amendment purposes, speech is the medium within which self-government transpires, and so content and viewpoint discrimination is forbidden.

Speech in universities, by contrast, has a very different structure. Speech is not about democracy or self-governance. It is instead the medium within which universities seek to achieve their twin purposes of research and education. These purposes cannot be achieved unless speech is both free and disciplined. This odd combination is embedded in the framework of academic freedom, which both guarantees faculty and students liberty to speak their minds and yet simultaneously subjects that expression to rigorous forms of evaluation and judgment.

In universities, speech that facilitates research and education is protected, but speech that undermines research and education is not. Certain kinds of civility are essential for education, which is why academic freedom prohibits faculty from verbally abusing students. This article denominates this kind of civility adverbial civility, because it concerns the treatment of persons. Other kinds of civility, however, may be inconsistent with education, because it is used as a reason to shut down rational engagement with ideas deemed hateful and obnoxious. This article denominates this kind of civility adjectival civility, because it concerns the character of ideas under discussion.

Academic freedom requires adverbial civility, but it may be inconsistent with adjectival civility. The Woodward Report misses this essential distinction because it focuses on the rights of speakers instead of carefully analyzing the educational mission of universities. If, as seems to be the case, most major universities regard their undergraduate education as oriented to preparing students to become democratic citizens, it is essential for universities to teach students democratic tolerance, which is to say the ability rationally to engage the ideas of peers, even if those ideas are hateful or obnoxious. On this account of the purpose of a university education, adjectival civility cannot be a reason to prevent speech.

A correct analysis of the Shockley incident at Yale does not turn on Shockley’s right to speak, because Shockley had no such right, but instead on Yale’s educational objectives in dealing with its students. By focusing narrowly on First Amendment rights of free speech, the Woodward Report entirely misses this dimension of the problem. It fails to illuminate what lessons Yale should be teaching its students and the implications of those lessons for Yale’s response to the suppression of Shockley’s speech.  

Old Standards, New Challenges: Keys to Addressing Internet Disinformation in Inter-American Jurisprudence

By PAULA ROKO

On May 3, 2020, as part of World Press Freedom Day and just a few months into an unprecedented health emergency, the UN Secretary-General stated that disinformation had become the “second pandemic.” More recently, a resolution of the United Nations Human Rights Council described disinformation as “a threat to democracy.” In the Inter-American sphere, the Inter-American Commission on Human Rights (hereinafter, IACHR) highlighted that the region is at a turning point, characterized in large part by a widespread deterioration of public debate fueled by disinformation. Although there is currently no jurisprudence in the Inter-American system that directly analyzes disinformation on the Internet, it is possible to find some insights in contentious cases, advisory opinions, and substantive reports from the Inter-American Court of Human Rights (hereinafter, the Court) that shed light on the standards that should guide potential legal disputes on this issue. This document analyzes some of the various standards that the Inter-American Commission and the Court have developed when studying the application of Article 13 of the American Convention, which could be significant for analyzing disinformation in the region. It focuses on states’ international obligations, both to act and to refrain from action concerning disinformation, as derived from Inter-American jurisprudence. The document is based on the premise that any executive, legislative, or judicial state measure that attempts to address this issue must consider a protective view of the right to freedom of expression due to the predominant role this right plays in democratic societies. As noted by the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Irene Khan, “The right to freedom of opinion and expression is not part of the problem; it is the objective and the means for combating disinformation.” The paper will first provide the conceptual framework for disinformation. It will then analyze standards on the right to freedom of expression emerging from: (i) contentious cases of the Inter-American Court; (ii) advisory opinions of the Inter-American Court; (iii) substantive reports of the Inter-American Commission; and (iv) thematic reports of the Inter-American Commission, which, as soft law instruments, have provided the first legal reflections on the subject within the Inter-American human rights system. The development of the various standards and their application to disinformation will be organized thematically, for which eleven (11) relevant categories have been selected for study. The work also systematizes—as conclusions and recommendations—the main guidelines or directives the Inter-American human rights system provides for states in their approach to this issue.

CELE Research Paper No. 63, 42p.