FAN 117.3 (First Amendment News) University of Cape Town Disinvites Flemming Rose — Nadine Strossen Dissents
In the classic expression of freedom of speech and assembly, UCT’s policy is that our members will enjoy freedom to explore ideas, to express these and to assemble peacefully. The annual TB Davie Memorial Lecture on academic freedom was established by UCT students to commemorate the work of Thomas Benjamin Davie, vice-chancellor of the university from 1948 to 1955 and a defender of the principles of academic freedom. Organised by the Academic Freedom Committee, the lecture is delivered by distinguished speakers who are invited to speak on a theme related to academic and human freedom.
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Note: Below is a heretofore unpublished letter from Professor Nadine Strossen. This coming Wednesday FAN will post another dissenting letter, this one by Floyd Abrams. Additionally, Vice-Chancellor Max Price, to whom the letter is primarily directed, is invited to reply should he be so inclined. (Links have been added for reference purposes.)
July 22, 2016
Dear Vice-Chancellor Price, AFC Chair Professor Rousseau, and Professors Hendricks and McClachlan-Daniels:
As someone who was honored to deliver the TB Davie Memorial Lecture in 2011, I was inspired by the University of Cape Town’s proud history of defending academic freedom, and its ongoing commitment to doing so, including through this Lecture and the work of the Academic Freedom Committee. I also recall fondly Dr. [Max] Price’s cordial hospitality and appreciated support for the AFC and the Davie Lecture.
I applaud the AFC’s March 2015 decision to invite Flemming Rose to deliver the 2016 Davie Lecture, and I am heartened by the AFC’s refusal to rescind that invitation despite apparently great pressure to do so from both within and beyond UCT. Having read Mr. Rose’s enlightening book, The Tyranny of Silence, as well as many other publications by and interviews of him, I consider him one of the most principled, courageous exemplars of intellectual freedom and freedom of conscience, including freedom for religious and other beliefs. I was therefore deeply honored to present to him the biennial Friedman Prize for Advancing Liberty, awarded by the Cato Institute, in New York City on May 25, 2016. For your information, I append below this letter the text of the remarks that I delivered on that occasion.
Of course, I would neutrally defend Mr. Rose’s right to speak at UCT — and the UCT community’s right to hear his ideas – even if I strongly objected to his ideas. But he is especially deserving of a forum such as the Davie Lecture because his ideas have been so widely caricatured and misunderstood, and because these ideas are urgently important precisely due to the sensitive nature of the issues they address.
For the foregoing reasons, I was deeply disheartened to learn recently that UCT had overridden the AFC and breached the commitment to host Mr. Rose to deliver the 2016 Davie Lecture. I was particularly disheartened by the reasons set out for that action in Dr. Price’s recently released letter, dated July 12, 2016.
These are the very same reasons that regularly have been cited to suppress the expression of any view that is politically unpopular at the particular time and place. In the U.S., for example, these were the reasons that too many universities cited for barring civil rights advocates from speaking during the twentieth-century Civil Rights Movement. Likewise, they are the same reasons why too many U.S. universities more recently barred “Black Power” activists from speaking. In a nutshell, the arguments both then and now are that the suppressed ideas could well offend other people, threatening their most cherished personal beliefs and community values, and potentially leading to violent reactions by those who are thus offended.
I have read the persuasive responses that have been issued to Dr. Price’s letter by the 2015 Davie Lecturer, Kenan Malik, and by the Index on Censorship, as well as by the AFC and Flemming Rose himself. I will not repeat the powerful arguments they made. Rather, I will confine myself to making several additional points.
First, why does UCT succumb to the victim-blaming approach in this context that it would surely eschew in other contexts? To say that Flemming Rose should not advance ideas that others might find provocative and respond to with violence, seems to me the same as arguing that women should not wear certain clothing that others might find provocative and respond to with violence.
Second, Dr. Price’s letter references the limits upon free speech that the South African Constitution sets out, which are also generally accepted in other legal systems. Yet the letter doesn’t expressly contend – nor could it credibly do so – that anything Flemming Rose has said, or is likely to say, would transgress any of those limits. Indeed, apparently acknowledging as much, Dr. Price’s letter makes only the tentative, qualified observation that “Mr. Rose is regarded by many around the world as..someone whose statements.possibly amount to hate speech.”
As any survey of the media will reveal, if universities declined to host any speakers whom some people consider to have made statements that “possibly amount to hate speech,” then they would have to ban from campus just about everyone who is addressing any important, contentious, sensitive issue. For example, in the U.S., many critics recently have denounced “Black Lives Matter” protestors as engaging in hate speech, even blaming such speech for allegedly instigating murders of police officers.
Flemming Rose’s speech clearly is not “advocacy of hatred . . . that constitutes incitement to cause harm,” which the South African Constitution excludes from free speech protection (as quoted in Dr. Price’s letter). First, there is no basis for concluding that Mr. Rose would say anything that could fairly be considered “advocacy of hatred that is based on.religion.” Moreover, even if someone did engage in such “advocacy,” it would still be protected speech, unless it also “constitutes incitement to cause harm.” To the best of my knowledge, not even Flemming Rose’s most unfair, harshest critics have charged him with “incitement” – a legal term of art that means intentionally spurring on listeners who are supportive of his views to commit harm against third parties, in a context where his sympathizers are actually likely to do so imminently. And if any such charge has been leveled, it would be patently unjustified.
If South Africa withheld free speech protection for non-inciting statements that merely criticize certain religious beliefs, or actions that are based on certain religious beliefs, then it could not protect many views that have been widely aired around the world: for example, criticism of’ discriminatory views and actions concerning LGBTQ individuals that are held by many Christian and other denominations and their adherents.
Third, Dr. Price’s invocation of “the rise in extremist terrorist groups” as somehow allegedly justifying suppression of Flemming Rose’s speech is also part of a general pattern that has been used to suppress a wide range of freedom, all over the world, not only in the recent past, but also historically. Ironically, this was precisely the topic of my 2011 Davie Lecture: the unjustified violations of academic freedom in the name of fighting “the War on Terror.”
Given that this “War” is likely to remain “The New Normal” worldwide, it will remain an all-too-convenient, but unjustified, rationale for suppressing academic and other freedom. This danger was recognized by none other than the namesake of the TB Davie Memorial Lecture himself. Let me quote a passage from my Davie Lecture, which quoted Dr. Davie’s pertinent observations.
“In his 1948 Inaugural Address, upon being installed as UCT’s Principal and Vice-Chancellor, Dr. Davie noted that `[r]ecent history has…shown …how easily and almost imperceptibly Universities can be deprived of their freedom.’ In words that are chillingly apt today [almost seven] decades later, he warned: `Controls and restrictions [that are] imposed and accepted under conditions of war are only too meekly submitted to, even when the conditions necessitating their imposition have disappeared.'”
Fourth, I would like to add to the critiques that have already been made of Dr. Price’s argument that proceeding with Flemming Rose’s lecture “might retard rather than advance academic freedom.” This reminds me of the much-maligned statement by a U.S. military official during the Vietnam War, that “we had to destroy the village in order to save it.”
It is also the same argument that the U.S. Supreme Court unanimously rejected in the landmark 1997 case of Reno v. ACLU, in which the Court for the first time upheld freedom of speech for the then-new medium of online expression. The U.S. government had argued that individuals might avoid an uncensored Internet “because of the risk of exposing themselves or their children to harmful material,” and therefore that censorship could have a net positive impact on free speech. The Court resoundingly repudiated this Through-the-Looking-Glass argument for the same reason that it is unpersuasive in the current context:
“We find this argument singularly unpersuasive…[I]n the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”
Fifth and finally, I am troubled by the ongoing threat to academic freedom that Dr. Price’s letter signals. On the one hand, he asserts that UCT “hope[s] never again to have to interfere with an invitation to deliver a lecture on academic freedom.” On the other hand, though, he later endorses “a considered version of academic freedom that is avowedly sensitive to the concurrent rights to dignity and freedom from harm.” In other words, it is only his version – or UCT’s “official” version – of academic freedom that will be honored, not that of the AFC, or the viewpoint-neutral version that would be consistent with the South African Constitution and UCT’s own proud traditions, as exemplified by TB Davie.
In light of the positive experience that I was so honored to enjoy as a prior Davie Lecturer -the same positive experience that Kenan Malik described in his response to Dr. Price’s letter – and in the constant hope that “more speech” will prevail over censorship, I respectfully urge reconsideration of the decision not only to “disinvite” Flemming Rose from giving the Lecture, but also apparently to exclude him from speaking at UCT altogether, even as part of a debate or panel presentation. I don’t think that bringing any speaker to campus could reasonably be viewed as anointing that speaker “as the chosen champion of the University of Cape Town,” as Dr. Price says. Certainly, when I had the privilege of delivering the Davie Lecture, I saw myself as the champion only of my own views on academic freedom; I did not see myself as even a spokesperson for UCT, let alone its “champion.” By continuing to create fora for discussion and debate by and with speakers expressing a range of views – including such an important thinker, writer, and activist as Flemming Rose — UCT itself would continue as “the chosen champion” of academic freedom.
Very truly yours,
John Marshall Harlan II Professor of Law, New York Law School
Immediate Past President, American Civil Liberties Union (1991-2008)
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