Government Forces Universities to Enforce "Free Speech" While Limiting Universities' Ability to Speak

The Free Speech Union's seven year campaign against academic freedom has finally paid off.

ACT would like to dictate what universities can and can’t say.

We knew it was coming. It was outlined in the coalition agreement and has become part of Seymour’s strategy of “emphasising public funding” to prevent people from opposing him and his views—something he also uses to try and de-platform poets who he doesn’t like the language of.

Poets are now not the only privileged voices to be silenced; Seymour would like universities to have fewer opinions, thank you very much. Even though holding independent institutional positions is a core part of academic freedom, it’s much more important to him that racists be allowed to speak whenever Young ACT members invite them onto campus.

RNZ’s summary of the bill:

The proposed changes will set clear expectations on how universities should approach freedom of speech issues.

Each university will then have to adopt a "freedom of speech statement" consistent with the central government's expectations.

The changes will also prohibit tertiary institutions from adopting positions on issues that do not relate to their core functions.

Associate Education Minister David Seymour said fostering students' ability to debate ideas is an essential part of universities' educational mission.

It is just another demonstration that the right in New Zealand follow the same playbook as the rest of the world.

ACT leader David Seymour

They are not here with a mandate. They are not here to eke incremental change or respond to problems on behalf of the public. They are here to ram through the framework for as much of the united right’s abhorrent philosophy as they can in the short time they’ve got in power, in this case so they can continue the suppression of academic freedom that has already begun in America.

Their free speech organisation is called FIRE.

The vice president of campus advocacy of the Foundation for Individual Rights and Expression, Alex Morey, has recently launched an unprecedented attack on the American Association of University Professors. She was quoted in Inside Higher Ed on Nov. 8 effectively offering an obituary for the organization in response to AAUP president Todd Wolfson’s expression of “disappointment” at the election of Donald Trump: “Faculty who’ve long relied on the AAUP for its principled academic freedom advice should look elsewhere,” Morey said.

On X, she has doubled down on these criticisms, suggesting by implication that FIRE could serve as a replacement for the 100-year-old association that is dedicated to the articulation and defense of academic freedom. Leaving aside the fact that these partisan attacks violate FIRE’s own insistence on neutrality, they misrepresent FIRE as promoting academic freedom, when that has never been part of its mandate.

FIRE, from its founding in 1999, has been dedicated to the absolutist principle of individual free speech and not to academic freedom. An initial motivating force was the endorsement of the right of racist expression on the University of Pennsylvania campus. This is a telling choice of where their political affiliations lie.

I’ve written about FIRE and its influence on New Zealand — only last week, in my piece titled The United Right: The Free Speech Union’s Continued Efforts to Undermine Academia. It outlines the various ways the Free Speech Union have worked to create or magnify the impression of freedom of speech issues within academia to undermine credibility in institutions that are discrediting, via science and social studies, the entire platform of the right. This is why the FSU and similar organisations dedicated to the protection of “Free Speech” have so recently become a global phenomenon.

But the only speech the FSU protects is partisan, much more partisan than FIRE. While FIRE presents itself as neutral, its cause has been co-opted by the right, with disinformation turning the distinction between civil rights and free speech into a source of conflict, and in 2022, FIRE widened in focus from just academia to all free speech across America as it seeks to surf the wave of outrage generated by the current political scene.

The Free Speech Union’s origin story is almost the opposite of this — it was founded in 2017 by the Man of Many Pressure Groups, Jordan Williams, friend of serial racist David Farrar and the person who is probably singularly responsible for most of New Zealand’s right-wing political organisations. Whenever Farrar or Williams find an issue they can exploit, Williams creates a pressure group to stir the pot. In 2017, America was divided over free speech under the first year of the first Trump presidency, and the pair realised it was the perfect opportunity to bring some of that division here.

Jordan Williams, compulsive group-starter

So they got to work. The first spotlight FSU sought out was alongside an anti-abortion student group at Auckland University when the Auckland University Student Association sought to officially disassociate itself from them. Farrar writes about it on kiwiblog, observing this unsuccessful occurrence has been a regular part of UoA club drama since the anti-abortion club was formed in 2010.

Clubs should be able to affiliate without discrimination. Again we see some on the left not wanting to debate issues, but to supress the views of those they disagree with.

Disassociation would not have disbanded the group nor ban it from campus, but it would have restricted the funding the group received from AUSA, which it used to advertise itself and its message. In response, Farrar calls for AUSA to be defunded.

This story flew relatively under the radar. But in 2018, the FSU found (or created?) a case much more worthy of their defence, catapulting them into the public eye — and to the top of the media’s list of phone numbers for potential spokespeople. Don Brash, former leader of the National Party, was slated to give an address at Massey University before the institution contacted him to cancel, citing his leadership of the Hobson’s Pledge pressure group going against their obligations to uphold the Treaty of Waitangi.

This caused quite the fuss. Many people spoke out about Don Brash’s ban from Massey University, respected voices from both the left and the right. In fact, they even signed a letter together, expressing concern about censorship in universities.

I don’t wonder to this day who did the work behind the scenes to make that letter happen, and whether the signatories would still be so quick to jump in and defend ‘free speech’ now after seeing where the subject has taken us — where it was always planned for it to take us.

Don Brash’s invitation to speak at Massey University was issued by the politics student club and shut down by the university Vice Chancellor Jan Thomas, saying in her private email to staff, “I don’t want a repeat of that horrible incident a few months ago.” The incident referred to, I believe, was the decision of then-Auckland Mayor Phil Goff to back the decision for a pair of far-right speakers to be barred from speaking at council-owned venues, which attracted much media attention at the time, also spurred on by Farrar and the FSU.

David Farrar, enabler

Farrar was instrumental in courting outrage around VC Thomas’ decision via KiwiBlog, offering a variety of creative suggestions for how he and his readers might fight back against this oppression.

Boycott Massey graduates campaign. Encourage employers to announce they will hire no graduates from Massey because it is obviously a university which is hostile to diversity of thought, so one can’t trust any graduates to have been as rigorously tested as on other campuses. The boycott to cease only when Thomas rescinds her ban and apologises.

Turn the Free Speech Coalition into a permanent group to fight this stuff. Fundraise heaps for a legal fighting fund, staff, advertisements.

E-mail Massey Council members asking them to rein in Thomas and tell her to respect the requirement of academic freedom in the Education Act.

Amend the Human Rights Act to require one of the Human Rights Commissioners to be a dedicated Free Speech Commissioner who can then fight these battles with Government resource. Sure many don’t like the HRC, but it isn’t going away so try and use it for good in this battle. Tim Wilson in Australia was very effective as a de facto Free Speech Commissioner.

Target Massey’s funding. Identify major donors to Massey and request meetings with them to make the case for why they should donate to one of the other universities that doesn’t ban speakers on the personal whim of the VC.

Target secondary school students and advise them not to enrol at Massey due to its hostility to free speech. One can hand out flyers at schools up and down the country.

Seek a judicial review of the decision of the Vice-Chancellor under the Education Act and Bill of Rights Act.

Lobby the Government to reduce funding to universities that don’t uphold free speech, as it being looked at in the UK

A petition to the Massey University Council demanding they over-rule the VC

As you can see, Farrar isn’t overreacting to this at all.

Thomas has explained her rationale for the cancellation.

The recent debate that swirled around the proposed establishment of Māori wards in parts of New Zealand including Palmerston North and the Manawatū district – home to one of Massey University’s campuses – came dangerously close to hate speech, mobilised in large part by the Hobson’s Pledge network.

So, when does free speech become hate speech and why should universities care?

The right to speak freely is a bedrock principle of democratic society. This includes the right to hold opinions and express one’s views without fear and the ability to freely communicate one’s ideas. History is littered with examples of tyrants who have sought to stymie this freedom of expression and, conversely, reveals the tragedy of those whose voices have been silenced under such oppression.

Freedom of expression is one thing, but hate speech is another. As a concept that has now entered common parlance, hate speech refers to attacks based on race, ethnicity, religion, and increasingly, on sexual orientation or preference.

While hate speech is not a specific offence in New Zealand, the Human Rights Act 1993 includes provisions addressing civil and criminal liability in relation to encouraging racial dissonance or unrest. The Crimes Act 1961 also has provisions that can result in convictions and significant sentences if threats are made to harm or kill others or damage property. Further, the International Covenant on Civil and Political Rights, to which New Zealand is a signatory, states that advocating national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence is legally prohibited.

Let me be clear, hate speech is not free speech. Moreover, as Moana Jackson has eloquently argued, free speech has, especially in colonial societies, long been mobilised as a vehicle for racist comments, judgements and practices. Hate speech is repugnant, or as one American legal academic has stated, hate speech is “a rape of human dignity”. Hate speech should be called out for what it is, especially when it incites violence against minorities.

Beyond the reach of the law, however, the battle against hate speech is fought most effectively through education and courageous leadership, rather than through suppression or legal censure. And this is where universities can take positive action by providing a venue for reasoned discussion and cogent argument. After all, the Education Act 1989 compels us to act as “critic and conscience” of society. This does not just mean protecting the values of academic freedom, it also means standing up for what is right. I do not see this is a zero-sum game aimed at limiting the right to free speech or the expression of differing or radical or even erroneous ideas.

Academics have a responsibility to engage with the communities we serve, to correct error and prejudice and to offer expert views, informed by evidence, reason and well-informed argument. Given the current dominance of wall-to-wall social media and the echo chambers of fake news, universities are in many ways obliged to make positive societal interventions. Universities support our staff and students to push boundaries, test the evidence that is put to them and challenge societal norms, including examining controversial and unpopular ideas. This also obliges our institutions to support staff if and when they are attacked for engaging in such debates.

In this regard, I am guided by the University of California’s former President Clark Kerr’s oft-cited maxim that “the role of universities is not to make ideas safe for students, but to make students safe for ideas”.

And as I regularly remind our graduates, with rights come responsibilities. Public universities have an obligation to uphold our civic leadership role in society and our first responsibility, I would argue, is to do no harm. Universities are characterised by the academic values of tolerance, civility, and respect for human dignity. And that is why it is important to identify and call out any shift from free speech towards hate speech. The challenge we face is to clarify when that shift occurs and to counter it with reason and compassion.

Hate speech has no place at a university. My university values our commitment to ideas and scholarship and free expression. Te Tiriti o Waitangi is at the centre of our university strategy, emphasising the importance of positive national leadership and supporting fundamental human values alongside academic ones. This is where Te Tiriti, with its emphasis on partnership, respect and tolerance, has much to teach us all.

This was just the start of the Free Speech Union’s work. Over the next five years, they would pursue protections for a range of controversial speakers both on campuses and at public venues, some of whom they had invited and facilitated themselves. With a dedicated organisation to champion the protection of free speech (free speech generally referring to racist, sexist or anti-queer rhetoric they are invested in spreading), issues of freedom of speech shot to the top of public concern, helped along by a well-timed pandemic.

Jonathan Ayling, FSU Chief Executive, speaking at an FSU event

Academics have tried to explain to Seymour and the Free Speech Union how free speech is different from academic freedom. Many already have crafted their policies on free speech in response to the controversies of the past few years. And we already have legislation in the Education and Training Act that protects and outlines our universities’ duty to uphold academic freedom.

As you can see, ‘free speech’ is not considered in this section — matters of speech are dealt with as issues of academic agency, with 4(a) specifying that staff and students are free to have and state their own ideas — but overall the legislation emphasises autonomy and the freedom of the institution. This is itself a matter of free speech as well as of acadmic freedom: the freedom of the university to assume a position on any given topic. A hugely important underpinning of our society, and one Seymour’s new bill seeks to remove.

This legislation must be really annoying for Seymour, as universities haven’t been infringing on it at all. The only thing universities seem to be doing is preventing outside speakers from giving presentations on campus — which is perfectly legal, and in fact in some views it is required under their ethical obligations. This, according to ACT, should be enough to justify government intervention in what universities can and can’t say.

But that itself is censorship and a limit on academic freedom as a concept. As mentioned, Universities do have a duty to cultivate themselves as an institution — including a legislative requirement to “maintain the highest ethical standards”. That involves considering their reputation and presentation, as well as whether any speech endorsed by the university is libellous, slanderous, and false, or if it creates an unsafe space for students or other speech. This is a subjective opinion, for all of these matters — what one person may consider true, another may consider a lie. What one person thinks of as racist hate speech, another person may consider vigorous debate. This is precisely the difficulty and division of thought that afflicted Massey University, and has been considered by our other universities since.

Seymour and the Free Speech Union would like to handwave over the aspects of academic freedom that don’t personally suit their agenda. They would like to direct the public’s attention to matters of speech only, continuing their seven-year-long campaign to rile the right into thinking their views are being suppressed because the left are trying to academically silence them, and not because they’re racist, frequently factually wrong, and universities have a duty to be conscious of the things they express and endorse. Former political party leaders do not have protected speech under academic freedom; that is reserved for students and staff, and so ACT needed to create new legislation that elevates freedom of speech above all other freedoms to sit side-by-side with academic freedom in a way that limits it most arbitrarily.

Unlike the current system, where universities must consider freedom of speech as part of their ethical standards, like Farrar, ACT would prefer freedom of speech to be the HIGHEST ethical consideration universities must take into account. Because they’re racist, because they benefit from that racism, and because they want to be racist with absolute impunity.