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Academic Freedom: Are Opinions and Expressions protected?

How do we determine whether an opinion or expression by an academic is protected by academic freedom, freedom of expression, both, or not protected?
Chart of conduct or expression protected by academic freedom versus free expression protection
© Scholars at Risk, Inc. 2017-18

In this article, we will explore the difficulty– and confusion–in trying to determine whether an opinion or expression by an academic is protected by academic freedom, freedom of expression, both, or not protected at all.

Drawing narrow lines around academic freedom

Confusion between an academic’s exercise of the right of freedom of expression versus academic freedom, often leads to attempts to draw clear lines around what is considered “academic” opinion, expression or conduct.

As we discussed earlier in this course, those who hold a “traditional” view of academic freedom may be more inclined to draw narrower lines around academic freedom. They generally seek to limit academic freedom protection to classroom or laboratory teaching and learning, academically oriented research, and publication and expression focused on exclusively academic audiences.

This view tends to treat other forms of expression or conduct by members of the higher education community as “not academic” and therefore outside of the protection of higher education values (but still protected by freedom of expression and other human rights standards).

Attempts to distinguish “academic” from “not academic” under this view tend to focus on the context of the expression (such as academic journal articles versus public blogs, opinion essays, or columns in newspapers), the format (such as data-heavy analysis versus narrative commentary), or the target audience (within the higher education sector versus a wider public).

As we discussed earlier, such attempts at narrow line-drawing face certain challenges compared with a broader, more contemporary view of higher education. These challenges include problems of oversimplification, false security, and social responsibility. Such attempts at narrow line-drawing may also be harmful if they lend legitimacy, however unintentionally, to antagonists of academic freedom who seek to restrict inquiry and expression under the guise of a “traditional” view.

Considering broader lines around academic freedom

As we discussed earlier, those who hold the contemporary or “socially-engaged” view of academic freedom may be more inclined to draw broader lines, resisting placing arbitrary limits on academic freedom. Under this view, whether something is “academic” or “not academic” would not be determined by context, format and target audience, as much as on whether the inquiry or expression is undertaken according to the ethical and professional standards of the subject discipline, as determined by higher education professionals of similar expertise.

What does this have to do with dangerous questions?

Whether a question is “dangerous”, and “how dangerous”, is partially a function of whether the asking the question is seen as legitimate. Therefore how broadly or narrowly one defines the scope of academic freedom impacts whether certain questions asked by academics or others are considered legitimate, and therefore worthy of academic freedom protection. Considered legitimate by whom? By the state, by other members of the higher education sector, and by civil society.

But remember, just because a question is protected by academic freedom or freedom of expression in theory, does not mean that members of higher education communities may not suffer harms in practice when states or others violate those principles. For example, many states maintain lèse-majesté or similar laws on “insulting the state” which in their drafting or application may violate academic freedom and free expression principles.

Similarly, some protections are only from state action, not from private actors. Just because academic freedom and free expression principles might prohibit a state from sanctioning expression or conduct, does not mean that other actors cannot limit an individual’s exercise of these rights. For example, a private, non-state higher education institution affiliated with a religious denomination might be permitted to condition academic employment on adherence to a code of beliefs that prohibits certain expression or conduct, even if such prohibitions limit academic freedom.

But limitations on academic freedom in practice do not undermine the claim to a broad view of academic freedom in principle. Rather, violations of academic freedom only point to the need for greater awareness within and outside the higher education sector, and the need for greater protection.

So, does academic freedom protect everything an academic says or does?

No. As discussed earlier in the course, the “socially-engaged” view of academic freedom objects to narrow line-drawing between the “academic” and the “nonacademic” areas. But it does not claim that academic freedom protects everything an academic does.

Remember the discussion in an earlier step about academics owning two hats, an “academic freedom hat” and a “freedom of expression hat”?

The traditional view of academic freedom says that the “academic freedom hat” is only worn in the classroom, the laboratory or similarly well-defined, traditional academic spaces. For everything else, according to this traditional view, the academic must wear the “freedom of expression hat.” The contemporary or “socially-engaged” view of academic freedom says that the “academic freedom hat” can be worn inside and outside of traditional academic spaces, provided that the academic wearing it behaves according to ethical and professional standards of his or her particular discipline.

According to this view, whether expression or conduct by an academic is protected by academic freedom or freedom of expression is less a questions of where or with whom it happened, and more a question of how and why the expression or conduct took place. A professor giving an interview or speech before a public audience might sometimes be exercising academic freedom, and sometimes be exercising freedom of expression. It depends on whether the substance and manner of the presentation relates to his or her professional work. Of course it can be difficult sometimes to distinguish this broader understanding of academic freedom from other forms of creative, artistic, personal or other open forms of expression by academics. But according to the socially-engaged view, it is worth wrestling with these difficulties, rather than to accept the traditional view that artificially narrows the scope of academic freedom.

Open, “closed” and other forms of expression or conduct outside academic freedom

Beyond the disagreement over where to draw the outer line around academic freedom, both the traditional and socially-engaged views agree that some forms of opinion, expression or conduct by academics is outside of academic freedom protection.

These includes creative, artistic, personal or other open forms of expression by academics that are not conducted according to professional standards.

These also include partisan, ideological, dogmatic, or similar “closed” forms of expression. These forms of expression are disqualified from academic freedom protection to the extent they suggest an inability, or unwillingness, to examine new information and evidence, to engage in discussion and debate, and to entertain the possibility of persuasion. But they are still protected by freedom of expression (and other human rights principles). Under both views, for example, academic inquiry into politics or religion is protected by academic freedom, but partisan campaigning or proselytizing is not.

Also, violent or coercive conduct beyond the expression of critical or unpopular ideas (e.g., destruction or property, arson, or threats to harm or kill others) is not protected by academic freedom, freedom of expression, or other human rights standards. (Although human rights standards relating to due process, fair trial and humane treatment would still apply.) But agreement on what constitutes violence or coercion is sometimes difficult. How do we assess protests, marches or other organized actions, on or off the university campus, that involve various forms of interruptions or disruptions. Is there a difference between protesters blocking access to a lecture hall for a few minutes, and protesters blocking access to campus for days? Is time the only factor? We will discuss this in a future step.

Who decides where the lines, if any, are drawn?

Finally, beyond the problem of drawing lines too broadly or narrowly, a focus on line-drawing can be harmful because it obscures two questions that are even more important. The first question is about agency: “Who decides where the line around academic freedom is, if any?” The second question is about consequences: “What happens if an academic crosses the line?”

© Scholars at Risk, Inc. 2017-18
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