Currently there are two prominent controversies relating to ‘academic freedom’. One is the case of Kathleen Stock, who has written a book that is critical of the concept of ‘gender identity’. Professor Stock has been the subject of threats and anonymous vilification, and has been disowned by her university’s union. The other is the case of David Miller, who has not just used his teaching position to declare that there is a Jewish conspiracy to dominate the world, but has accused Jewish students in his university of taking part in it and being the pawns of a malign foreign power.
I think these two cases are rather different. Miller’s embrace of conspiracy theory is odiously racist, but there are lots of objectionable positions that people take in British universities – among them, people who will happily argue for eugenics, racial inferiority, and survival of the fittest. The academic advocates for letting Covid rip have contributed to the deaths of more people than they could have if they’d gone into a lecture theatre firing a sub-machine gun. If Professor Miller had stopped at conspiracy theory, I doubt that much would have happened. The line he crossed was to level an accusation at a group of students within his university who should be “directly targeted”. Miller claims, probably correctly, that this is not unlawful: defamation only becomes unlawful when it relates to identifiable individuals within a group. But academic freedom is not unlimited, any more than any other sort of freedom. It cannot be legitimate to threaten or invite people to attack those who are subject to your authority: that is an abuse of power.
Kathleen Stock’s position is very different. She has been accused of ‘transphobia’ for daring to take a different view from other people. The statement from her local union branch comments that “Public discourses regularly devalue the lives of trans and nonbinary people, and appeals to both employment rights and academic freedom are often instrumentalised.” Maybe so, but that has nothing to do with Kathleen Stock. I have read her book, Material Girls, and I did not see anything there which might suggest that trans people do not have the right to live their own lives in their own way . She writes, on the contrary:
Trans people are trans people. We should get over it. They deserve to be safe, to be visible throughout society without shame or stigma, and to have exactly the life opportunities non-trans people do. Their transness makes no difference to any of this. What trans people don’t deserve, however, is to be publicly represented in philosophical terms that make no sense.
Her main objections are to subjective claims to a gender identity, and from there to men who wish to occupy the same spaces as women. (I think she dismisses the social construction of gender rather too easily, and tends to conflate it with subjective self-identification – but so do her opponents. Law, finance, culture and language are also socially constructed; that doesn’t mean they are subjective. Nor is gender.) There is a discussion to be had, and if we cannot accommodate that discussion in reasoned terms, we will all be the poorer.
In September, I commented on the controversy about a paper on The Case for Colonialism. This week, a similar argument has exploded in the University of Oxford. A proposal for a series of seminars on the ‘Ethics of Empire‘ has been established in the University’s McDonald Centre. It states that ’empire’ can mean many different things, that both “apologias and critiques” of empire need to be tested against the historical evidence, and that there are lessons to be drawn for contemporary engagement by the Western Powers. (Note that it refers to “apologias” rather than “defences”; this is not an agenda that puts arguments for and against empire on an equal footing.) The seminars that have taken place to date have considered the Assyrian, Roman and Chinese empires.
In reply, a letter to the Guardian has been sent by a large and assorted collection of 58 academics, mainly historians, who object to the premises of the proposal. They claim that that the project is based in ignorance of current scholarship and proposes a “crude cost/benefit analysis” of empire. (I cannot comment on the first, but if it is true, then a dedicated series of seminars featuring presentations of historical empires by international experts should help to diminish the scope of the organisers’ ignorance. I do know something about cost-benefit analysis, and I think I can say more confidently say that there is nothing in the proposal, either explicitly or implicitly, which does argue for such an approach.) The objectors are on stronger ground when they write: “Developing a ‘Christian ethics of empire’ is not an intellectually sound, let alone an academically robust, endeavour ”. The suggestion that the project will offer “a nuanced and historically intelligent Christian ethic of empire” seems to imply that there can be such an ethic, analogous to the idea of a just war; that is controversial, and it may indeed be “political” in the terms criticised in the letter.
It hasn’t helped that the Daily Mail has now stuck its oar in. The objectors are advocates of an “ugly totalitarianism’, and to prove the point the Mail digs out any mud that it can throw: some of them are opposed to Brexit, five are anti-Israel, and several are (gasp!) supporters of the Labour Party. The Mail‘s article, by Guy Adams, is rambling and ill-focused, but at the core it does have a point. The objectors are basically trying to suppress a dispassionate discussion of issues in an academic context, because it is framed in terms that they disagree with. If we can’t discuss the Assyrian empire without prior political genuflections, we’re in trouble.
The Scottish Law Commission has published a lengthy report on defamation. I raised a couple of points in my blog last year, when I thought I wasn’t going to make a submission; but then I started to feel guilty about my indolence, changed my mind, and dashed off an e-mail to the consultation (complete with typos). As it turns out, I’m cited at length in a paragraph in the report: only 15 submissions picked up the point about academic freedom, on both sides, and that is hardly enough to derail an argument.
5.37 Paul Spicker pointed out that, in terms of material subject to peer review, the net is much wider than journals – books and academic bids for funding tend also to be peer-reviewed. He observed that it is, in any event, questionable to what extent a focus on peer-reviewed material offers protection against defamation. The primary focus of peer review tends to be recognised as being to make judgements about the rigour and validity of a submission. This does not generally include any sort of duty to notify the editor as to whether or not academic comment or criticism might operate to the detriment of a person’s commercial interests. He further commented that it was not clear why safeguards should only be applicable at the point of formal publication of material or submission to other bodies. Academic papers may, for example, be presented at seminars and conferences during the course of their development, before formal publication. It seemed that what was called for
was a general exemption for all bona fide academic discourse. The nature of the discourse should be determined on a case by case basis rather than being treated as occurring only in specified locations or outlets. …
5.41 On the other hand, the Law Society of Scotland took a different angle, namely that the coverage of peer-reviewed statements in scientific or academic journals was practical enough to meet the aim of promoting freedom of expression within the academic and scientific community. On that basis, they did not support any expansion of section 6.
The Commission concludes:
5.42 Having weighed up these competing arguments, we recommend that the scope of section 6 should be left as it stands. It appears that more would be needed to make it fully effective than a simple extension of its application in terms of the types of publication that it covers. Fundamental questions have been asked about whether the focus on peer-reviewed material is sufficient in offering protection against defamation. There may be a need for a wider protection covering academic discourse in general. It seems preferable that any such changes be made at UK level, rather than the same provision applying in a different manner as between Scotland and England and Wales.
I’m not sure whether this amounts to a rejection of the case I made, because it seems to accept the main argument, but regardless the law is not going to protect routine academic discourse in the foreseeable future. Mark it up as another failure.
Yesterday I received a circular request to sign a petition to have an academic article taken down. The article in question is “The case for colonialism“, written by Bruce Gilley, and published by Third World Quarterly. For Gilley, anti-colonialism has justified practices that are worse than the colonial systems they replaced; he tries to justify colonialism on the balance of costs and benefits. There’s a forceful rebuttal of the arguments by Nathan Robinson in Current Affairs:
“Truly unspeakable harms can simply be “outweighed” and thereby trivialized. … Building power lines and opening a school doesn’t provide one with a license to rob and murder people.”
Being concerned about contemporary policy, I’m less concerned about the historical revisionism than about the mis-characterisation of current issues in development. There have been massive improvements in much of Africa in recent years, and they have not happened by magic. Gilley suggests that
The ‘good governance’ agenda, which contains too many assumptions about the self-governing capacity of poor countries, should be replaced with the ‘colonial governance’ agenda.
The agenda he’s criticising makes no such assumption; on the contrary, it’s about creating capacity. The process has encouraged governments to recognise their limitations and to work collaboratively with a range of stakeholders and partners. Just the sort of thing that colonial governments didn’t do and that international organisations have had to learn.
Gilley’s critics have described the argument as “racist” and “white supremacist”; neither of those is justified by its content. The article is provocatively written, somewhat cavalier about evidence and possibly slightly bonkers. Does it follow, though, that it should be withdrawn from circulation? The proper response to anything of this nature is to make the case against it, not to have it expunged from the record. When I’ve taught students about ethics and policy in the past, I’ve sometimes given them extreme positions to consider – arguments for torture and infanticide amongst them. I’ve wanted them to be able to respond cogently and fluently to offensive views, because in real life speechless rage doesn’t win the day. I’d have had no hesitation in getting students to write a critique of this paper. Students tend to be far to deferential to the things they read; a healthy disrespect for the printed word is something to be encouraged.
The Scottish Law Commission has issued a lengthy consultation paper on the reform of defamation law in Scotland, but I’ve only just seen it and the deadline for responses is set for tomorrow. This is not my expertise (it’s forty years since I studied torts as part of English law, and I never used it) and I’m not proposing to make a submission, but there are issues of concern. I don’t share the view of the Libel Reform Campaign that “Corporate bodies do not have a private life, personal identity or psychological integrity.” Clubs, societies and charities do have identity and integrity and may well depend very heavily on their reputations. The law privileges financial damage over other kinds of reputational damage, and that by comparison with the protection given to commercial traders there is a relative lack of protection for smaller, non-commercial groups, such as a mosque.
The main issue affecting the academic community is the potential suppression of scientific debate or criticism, most notoriously in the action taken against Simon Singh by the British Chiropractic Association. There is an exemption made in the 2013 Defamation Act, but it only allows for material in peer-reviewed academic journals or conference proceedings. (For those who don’t know it, academic books are peer-reviewed too – 13 of my books have been peer reviewed anonymously, 2 others were subject to an editorial board.) The restrictions mean that academics have to rely substantially on defences of public interest and fair comment, and they are likely to be forced to fold long before they get that far.
I’ve had a protracted debate in the course of the last week with some of the new Puritans, who hold that people who don’t agree with them should be isolated, ostracised and silenced. This approach is both illiberal and anti-academic. I was interested, then, to see some ratings of UK universities by Spiked, who have constructed an index of Free Speech. Of 115 universities surveyed, only 12 have substantially avoided censorship of objectionable opinions.
I don’t agree fully with Spiked’s position. Their manifesto argues for the removal of all limits on speech, including hate-speech and libel, and that’s why I couldn’t sign it. We should not underestimate the power that speech has to deny a voice to other people, and free speech should not extend to statements like “kill these people before they kill you”. There’s also an implicit contradiction in advocating the freedom to shout down other people.
There’s a persuasive academic argument from Scanlon that free speech is a misrepresentation of the true right, which is not so much the right of speakers to express themselves as the right of the audience to hear and decide for themselves. If the audience would be wrong to decide – “let’s lynch this murderer” – it may well follow, depending on the context, that the person saying it does not have the right to express it. The context does matter, however. In the course of teaching theory and ethics in academic institutions, I’ve reviewed arguments for lots of unpalatable positions, including eating babies, corruption, letting poor people starve and torturing people. The academic world depends on dialogue and developing the skills to deal with contrary views; suppressing those arguments is anathema to learning.
Wikipedia has announced that it will shut for a day, in protest about threatened restrictions in the USA which will enable rights-holders to shut down sites that breach copyright. My website, like the rest of my writing, is scrupulously referenced, but I have considerable sympathy for Wikipedia’s position. The laws on copyright present a serious obstacle to learning, communication and intellectual development.
As a writer, my work is often used by other people without any form of recognition. Students, journalists and some academics routinely borrow from, copy or plagiarise what I have written. This may rankle, because it’s rude and incompetent, but for the most part I have to put up with it. To publish a work is to place it in the public domain. I expect – or hope – that my work will be read, discussed, and disseminated. The most disappointing experience is not when my work is cited without payment or acknowledgement, but when it sinks under the waterline. I’d much rather that people read and used my ideas than that they didn’t, and I’ve never encountered an academic who thinks differently.
The laws do not work in the interests of people like me; they work against us. The main effect of current rules about copyright, for any teacher, researcher or writer of non-fiction, is to restrict the ability to cite, illustrate points and argue with positions. I can’t use extended quotes from historic figures like Keynes or Beveridge. I’m barred from duplicating some texts first published in the sixteenth century. I can’t afford to use any photos in my books – the standard fees for two or three photos will consume all the royalties for eighteen months’ work. Many respectable peer-reviewed journals insist on full assignment of copyright, without payment. The primary function of the copyright laws is to defend, not the creators of intellectual property, but the interests of the businesses who have secured the rights.
Laws have to be developed to permit the free flow of information. The main rights that need to be protected are the rights of commerce – that people cannot present themselves as someone else, and people should know what they are buying. The laws go much further than they need to do to make that possible. The current rules on copyright, related to the time of death and some bizarre rules about assertion of rights, make it fiendishly difficult to decipher what is available for duplication, what isn’t, and who owns the rights. There’s only one kind of restriction that stands a chance of being understood and respected – that is, as we have with patents, a right to exclusive production for a limited, fixed period of time following publication. And that’s not what the law says or does.