Some Scenarios of False Speech and Academic Freedom

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A few weeks ago, Oxford University Press published a new book edited by Amal Clooney and Lord David Neuberger on Freedom of Speech in International Law. The book, as readers can imagine, covers a lot of ground. Philippa Webb and I were happy to contribute a chapter on the regulation of false speech (‘fake news,’ mis/disinformation). Our main focus was on whether states can justifiably limit speech in line with international human rights standards on freedom of expression, at least partly on the basis of the falsity of the speech in question, and do so by means of criminal punishment. We argue that such criminal proscription of false speech can only very exceptionally be justified under the legality, legitimacy, necessity and proportionality test for justified limitations in human rights law. In particular, we argue that criminal punishment of false speech can generally be justified only if: (1) the false speech in question is causally linked to serious harms, such as harms to public health or the integrity of democratic elections; (2) the speaker engages in that false speech knowingly or intentionally, both as to the falsity of the speech and as to the harmful consequences of the speech; and (3) criminal punishment is the only effective way of curbing the harms caused by such speech.

Thus, for example, depending on the specific context, it may be perfectly appropriate to criminally punish an individual who falsely claims that a medicine can treat a certain disease, while being aware that this is false and that the health of their audience may be harmed as a result. It can also be justified to criminally punish an individual who, on the eve of an election, falsely claims that a candidate in the election has died and widely disseminates that message on social media, while knowing that the statement is false. And so on. Crucially, in these cases it is not the falsity of speech alone that can justify criminal punishment. Rather, it is the harm (potentially) caused by the false speech that justifies state intervention, and the speaker’s high level of culpability that justifies criminalization.

This brings me to the topic of this blog post. Universities are one of those contexts in which the pursuit of the truth is essential, where it is the core purpose of the whole endeavour. The issue of free speech in universities has, for various reasons, attracted much attention in recent years, along multiple axes. What mainly interests me here, though, are those situations in which a member of academic staff could be disciplined in some way by their university, with this being done at least partly on the basis that they had engaged in some form of false speech that is harmful to the university’s educational and research mission.

In this post I’ll set out some scenarios that raise this question, and some related questions. I don’t mean to provide answers to these scenarios, nor I do think that most of them are obvious. I am happy to have a conversation with colleagues about these scenarios, in the comments or otherwise.

In all of the scenarios, assume that the university in question is state-owned and operated, so that there is no doubt about the applicability of international human rights standards. All of the scenarios focus on the issue of falsity and resulting harm. All of these scenarios also test the limits of at least one possible approach to defining academic freedom, which postulates that it covers saying things that are ‘within the law.’ (See, e.g., the UK Higher Education (Freedom of Speech) Act 2023, which defines academic freedom as the academic staff’s ‘freedom within the law (a) to question and test received wisdom, and (b) to put forward new ideas and controversial or unpopular opinions.’) The problem, however, is that the kinds of false speech I will look at below are ‘within the law’, in the sense that the state has no criminal laws punishing such speech. Nor could the state justifiably have such laws, per the argument set out above and in the chapter Philippa and I wrote, either because it is not sufficiently harmful, or because it is not uttered with the requisite intent. This does not, however, entail that lower-level sanctions, such as dismissals or disciplinary actions, could not be justified, and this is what concerns me here.

Basic scenario: Holocaust-denying historian, evolution-denying biologist, anti-vaxxer doctor

Imagine a classroom. A history professor teaches his students that the Holocaust never happened, or that there was no such thing as the Roman Empire, or that there never was a French Empire led by some guy called Napoleon, or that the Americans never landed on the Moon. The professor sincerely believes that what he says is true, and that the received wisdom of his discipline is false. The professor genuinely sees himself as questioning and testing received wisdom. The professor has no intent to incite hatred against any specific group, nor to cause offense to any such group.

One can, of course, easily replace the historian with an evolution-denying biologist, or a biologist who denies that there are these little thingies called mitochondria, or a climate scientist who denies that climate change is real or who denies that it is anthropogenic in character, or with a doctor who argues that vaccines cause autism. Such replacement is more difficult to do with normative disciplines such as law. But, one could also imagine, for example, a law professor teaching his students that theft is not a crime, or that the UN Charter was never adopted, or that there are no international courts currently sitting in the Hague.

So, the question posed by this scenario is whether the university can discipline a professor who teaches manifestly false facts to their class? By ‘discipline’ I mean a full scale of possible interventions, ranging from warnings to removals from teaching to salary deductions to firing. The precise penalty is not material here, and I’m happy to assume that the university escalates various penalties after repeated infractions, all the way up to dismissal, in line with necessity and proportionality.

Recall also the basic point that this kind of false speech is not illegal under the laws of most states, with the exception in some countries of Holocaust denial or similar memory laws. But in the UK, for example, all of the instances of false speech above would be well ‘within the law,’ and the speech in question surely ‘tests received wisdom’ and so forth.

Now for some variants:

Variant 1 – the professor behaves in the same way as above, but he is not an expert in the field in question, and the factual statements he is making are not related to the subject he is teaching. For example, a professor of mathematics asserts in his classroom that there is no such thing as climate change, or evolution, or that vaccines cause autism.

Variant 2 – the professor does not teach false things to his students, but writes them in a paper, which includes references and a discussion of evidence, that he publishes online. He may even publish his paper in some kind of not terribly reputable academic journal that nonetheless professes to use peer review.

Variant 3 – the professor does not teach false things to his students, or write about them formally in a paper, but expresses his views on Xitter, a social media platform.

Variant 4 – the professor applies for a job at another university, but the university rejects his application. When he requests feedback, he is specifically told that his rejection was mainly due to the false things he stated in the papers he published or on social media, which go against the university’s core tenet of pursuit for the truth. Hiring him would, in the university’s view, bring the university into disrepute. (A similar scenario would be one which the professor’s own university denies him promotion or tenure on the same basis.)

Variant 5 – the professor is invited by a student group at a different university to give a talk about his controversial views. The student group expressly says that they will include a rebuttal of these views by another disciplinary expert. The university nonetheless orders the student group to disinvite the professor and cancel the event, stating that the professor’s views (e.g. that vaccines cause autism) are objectively wrong and harmful, and that they should not be platformed at a university venue even with a rebuttal, since doing so would inevitably lend authority and legitimacy to such views.

The scenarios above are deliberately framed in such a way to focus solely on the question of false speech, and avoid possible intersections with other kinds of potentially harmful speech.  I did not include an example of (say) a law professor who frequently discusses in public and in the classroom evidence that he believes demonstrates that certain races are naturally more intelligent than others, because in this example it would be very possible that the professor is acting with an intention to cause offense or even incite hatred. The same goes for an example in which the professor makes such statements directly to students belonging to a specific group, effectively abusing or harassing them as individuals.

I have also avoided examples that mix factual with normative statements, thus challenging the boundary between fact and opinion, with the former being susceptible to objective proof and the latter not. Think, for example, of a gender-critical feminist who asserts that biological sex is an immutable fact – this is indeed framed as a statement of fact, but the real debate in this area is entirely normative, e.g. as to whether there are areas in which the legal interests of cis women and trans women may conflict, as with competitive sports or placement in prisons. Put differently, saying that ‘trans women are (not) women’ is not the kind of statement of fact susceptible to objective proof that concerns me here, because it is implicitly loaded with many normative positions.

Again, I wanted to focus purely on those scenarios that concern value-neutral false statements of fact, and on potential harms caused by such statements, e.g. to public health (the evaluation of these harms of course cannot be purely value-neutral). ‘Within the law,’ lawful but awful, if you want to put it that way. And the question is how the legality, legitimacy, necessity and proportionality justification test in human rights law would apply to such false speech, much of which could not be justifiably punished by means of criminal law.

My sense is that most colleagues would find that limiting false speech was justified in the basic scenario. I think most colleagues would also find that classroom scenarios are different in important ways from those in which the professor falsely speaks outside the classroom. But it would be good to understand why, to test these intuitions, and to hear from others why some particular variants of the scenario are distinguishable from others (or not). It would also be good to understand how any regulatory intervention by a university in scenarios such as these would leave sufficient space for questioning and testing received wisdom. I’ll leave it there for now.

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Comments

Richard Mackenzie-Gray Scott says

March 4, 2024

Hi Marko. I hope all is well.

Two general thoughts:

1. Appraoching these scenarios from the perspective of the responsibilities that attach to the exercise of human rights, and their link to particular roles held by people. So the limits of free expression are the extensions of the responsibility that individuals owe to each other and society as a whole, which may differ depending on their role and exercising or enjoying this right. In your hypotheticals, this would mean where there is a failure of the professor to fulfil their responsiblities (whatever these are established to be) as part of their professional role when exercising their speech, the state could step in to ameliorate that failure. Figuring out the limits placed on the right could thus depend on the role held by a particular person, as this role changes the responsibilities they owe to others and society more generally when exercising rights in particular contexts.

2. The incentives behind why people, perhaps knowingly, communicate falsehoods. And in this respect, I think something that from what I've read seems under-scrutinised is the money behind false information. So in your hypos, a professor may be saying things that are factually wrong because, say, some corporate body is paying them to do so - whether directly, or indirectly.

Hope this makes sense!

J. Jarvis says

March 9, 2024

One of the many problems of censorship justification is the recursion problem. If you claim that "saying something false causes harm", then by the same logic, the claim that this statement ("saying something false causes harm") is false also causes harm, because if it persuades people then they would stop the censorship of harmful speech and it would cause harm. So the logic of censorship necassarily also dictates the censorship of debating censorship.

Of course the same logic goes for censorship of falsely claiming "prosecuting murderers does not prevent murders", but we then used to make the distinction that this is just speech, or this is just descriptive speech. Not anymore.

As someone once wrote, using those kind of censorship justifications inevitably leads to the conclusion that political speech should be heavily censored.

You gave the example of falsely claiming that a candidate died before the elections, but what if the candidate's campaign is based on many false statements, what if a dangerous politician is elected to office because he lies all the time and then "goes nuclear"? What if a president goes to war based on false claims that the enemy has nuclear weapons?

One can imagine an utopia where no one never lies, maybe we all have implants in our brain that forbid us to say anything that we think is not true. I suspect that this utopia is actually a dystopia, where if someone asks you "do you dislike me?" he knows that any answer that is not a "no" is a resounding "yes"