Free Speech or Forced Accommodation of Speech? #ableg #abpoli

When Alberta’s Premier announced that he would follow in Doug Ford’s footsteps by requiring Alberta post-secondary institutions to better accommodate free speech on campus, some presumed it was to better protect those who espouse opposing views to women’s choice or human rights. Others suggested it was to undermine student protest. 

While both of those presumptions may be true, we have yet to see any real fallout from Ford’s requirement that publicly funded post-secondary institutions in Ontario implement policies based on that of the University of Chicago, which went into effect on January 1, 2019. 

Since 2011, the Justice Centre for Constitutional Freedoms (JCCF) has provided an annual assessment of free speech policies at Canadian universities. The charitable organization provided recommendations for the Ontario government’s campus free speech policies in 2018 and earlier this year, the JCCF welcomed Lindsay Shepherd as a “campus free speech fellow“. 

On May 6, 2019, the JCCF has submitted a proposal to the Alberta government to amend the Post-Secondary Learning Act (PSLA) 2003 which would affect 26 publicly funded institutions in Alberta as well as accredited private institutions who also receive government funding. 

The JCCF recommends the following be added to the PSLA:

Section 15.1, “Freedom of Expression”, is added.
Section 15.1(1) “Definition” is added and will read:
“Freedom of expression” means the freedom to express oneself through any oral or written means, including but not limited to the production and utilization of art and visual media such as signs, pictures, and motion pictures, the spoken word, including speeches, and the written word, without the imposition of costs as a condition for exercising this right, and without restrictions except those that accord with the rule of law. Freedom of expression also includes the right to peacefully
assemble, peacefully protest, and the right to receive expressive material, be it written, spoken, or visual.

For further clarity, freedom of expression is a right held by all members of the public, including students, and includes the right to express ideas, opinions, facts, beliefs, theories, and political philosophies that others consider to be objectionable, inappropriate, wrong or offensive. Only criminal hate speech as defined by the Criminal Code of Canada is excluded from this definition of freedom of expression.

The most recent highly publicized accusation of “censorship” in Alberta post-secondary institutions was from UAlberta Pro Life (2015). The group was asked to cover security costs for an event which the former president of the association deemed a “heckler’s veto”. JCCF took the case on behalf of the group, arguing before Alberta’s Court of Appeal back in November of 2018. JCCF recommends a policy that:

(i) prohibits the university from imposing security costs on students,
student organizations or faculty members in respect of their right to
peacefully assemble or peacefully express themselves, including the
right to invite and listen to speakers;
(j) provides that the college or university will enforce the rule of law on
campus by intervening to protect freedom of expression from disruptive
activities, and specifies that those who engage in disruptive activities
will be disciplined, with penalties imposed on those found guilty of
disruptive activities; ~ Policy Recommendation (Pg 9)

The recommendations go further to stop universities from accommodating students who are offended or “triggered”. The JCCF has criticized post-secondary institutions and student unions who accommodate “safe spaces” for faculty, staff or students, awarding higher grades on their Campus Free Speech Index based on: 

… policies (that) have a clear and unequivocal commitment to free speech on campus, set out in the university’s mission, statement on academic freedom, or other policy documents(; …) have no express or implied “speech code” that prohibits or restricts speech on grounds of it being “offensive,” “discriminatory,” “disrespectful,” “inappropriate”, “triggering”, a “micro-aggression,” etc., and the university does not impose or create so-called “safe spaces” where speech is restricted. ~Campus Freedom Index 2018

As such, it is their recommendation that Alberta’s post-secondary policy: 

(a) includes a statement that it is not the proper role of the college or
university to shield individuals from lawful expression including,
without limitation, ideas, opinions, and beliefs they find unwelcome or
offensive, or consider to be wrong; ~Policy recommendation (Pg 8)

Autonomy, Responsibility and Reputation

Alberta’s post-secondary institutions, while governed by provincial legislation, should have the authority to choose who they will and will not be affiliated with. The reputation of a post-secondary institution is fluid affecting past, present and future graduates. As such, they have a responsibility to protect that reputation for those who chose to attend. 

Alberta’s new Premier has perhaps shown best how affiliation can damage reputations, employing consistent political capital to attack the NDP over Tzeporah Berman’s appointment, the University of Alberta for their decision to award an Honorary Degree to David Suzuki, and the Alberta Teacher’s Association for inviting Suzuki to speak at a professional development conference.

He did not attack the free speech or expression but instead attacked those who offered a platform. As the former Opposition Leader aptly demonstrated, reputations matter. Forcing a post-secondary institution, whose reputation must be protected, to provide a platform for anyone who wants one should not be within a government’s ability to mandate. 

Institutions are also responsible for the safety and well-being of the students who attend and the staff and faculty who are employed there. As with other cases the JCCF has spearheaded, the rights of one group do not automatically supercede those of another and can be limited, legally, to protect the rights of others. 

This post contains a lot of fact and perhaps a wee bit of opinion.

Deirdre Mitchell-MacLean

contact: dmaclean@countersign.ca

Twitter: @Mitchell_AB for all of the commentary, @thisweekinAB for posts

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