The wrong kind of free speech can stifle minority voices

In the late 1980s, just before I went to university, I worked for nine months as a health care assistant in a spinal injuries unit. On one occasion, I assisted a nurse who was drawing blood from an elderly lady in a wheelchair. The nurse had difficulty finding a vein in her arm and, jokingly, the patient said to us “I must have Jewish blood”.

As I recall, neither the patient nor that particular nurse knew that I was Jewish. I did not say anything – I was young and did not really know how to respond. Besides, it was far from the worst instance of casual antisemitism I had experienced.

However, I continued to reflect on it over the years. Should I have made a big fuss or complained to the hospital? But would I have wanted this vulnerable, elderly woman, for whom this was in all likelihood just a throwaway remark at a time of quite significant stress, to have suffered further pain and embarrassment? In the end, I decided I was right not to take it further because that would have been an excessive reaction that failed to take account of the context and the humanity of the people involved.

Isaiah Berlin, a Latvian-born Jew, witnessed the violence of the October and February revolution as a seven-year old then living in St Petersburg. He wrote later about his horror at seeing a Tsarist policeman being lynched by a revolutionary mob, an episode generally believed to have influenced his writing on the dangers of authoritarianism, encapsulated in his idea of positive as opposed to negative liberty. I suspect that Berlin would have agreed with me that taking a punitive stand towards an old lady in a wheelchair would have been unacceptably authoritarian.

It is precisely this tension between different conceptions of liberty that confronts universities in “liberal” democracies when thinking about academic freedom. Berlin contrasted the idea of positive liberty – deriving from French sociologists’ critiques of systems of power that mandate authoritarian action to achieve freedom – with the negative forms of liberty based on personal autonomy and limited government interference promoted by the liberal British tradition.

Universities in democratic countries struggle to reconcile policies about equality, diversity and inclusion with a commitment to academic freedom. Berlin did not suggest that there was no place for positive liberty, nor deny that there were tensions between positive and negative liberty that were difficult for societies to resolve. He did, though, warn of the dangers of an overemphasis on positive liberty.

In this sense, his ideas can be located within the broad trend of Enlightenment thinking: it is better to have a liberal society in which people engage in open and civil dialogue in the public square, and in this way good ideas can be distinguished from bad ones. Following this tradition, Alan Dershowitz, as a constitutional lawyer, has argued strongly, citing both the first amendment and the ideal of academic freedom, that freedom of expression is what promotes and in the end guarantees minority rights. When freedom of expression is curtailed, minorities are at increasing risk of losing their voices – just as they did, for example, in Soviet Russia when they went against the government’s view of what was needed for positive liberty.

For universities, then, the question is whether and how to regulate speech. A live example is the debate about the International Holocaust Remembrance Alliance definition of antisemitism and whether it might limit the academic freedom of academics who are working, for example, on Palestinian rights. You could argue that the IHRA definition suppresses academic freedom – but there is nothing in it suggesting that regulatory sanctions should be imposed on academics or students for what they say. Nor should there be. Rather, the IHRA sends a signal that anti-Zionism can spill over into oppression of Jews. Its definition was formulated partly as a reaction by liberal democracies to the UN’s notorious Durban 2001 conference, which equated Zionism with racism, and incidents such as the banning of Jewish societies by student unions because they were labelled as racist.

When we look at the material reality of what is happening on campus right now, we can point to attempts to exclude Jews, including overt incitement by some students across the UK and US. David Hirsh, lecturer in sociology at Goldsmiths, University of London, has even argued recently that we have seen the creation of loyalty tests by academics equating Zionism with racism that serve to set Jews outside the political body of the good. The academics involved seem to want to avoid a free exchange of ideas that might very well involve others on campus pointing out that such approaches serve to oppress Jews. In this context, the IHRA definition can be seen as opening up a space for such dissent within universities.

There are other examples where the trajectory of “positive liberty” in academia has ironically ended up being in direct tension with minority expression. For example, universities have been largely silent on the systematic persecution of Uighur Muslims in Xinjiang – and their response to the sanctioning of UK academics working in this area has been lukewarm, to say the least.

It could be argued that this results from hierarchies of oppression embedded within certain notions of social justice, whereby nobody from the Global South, including even the Chinese Communist Party, can be engaged in oppression. In tandem with this, concerns about funding from China and perhaps barriers to accessing Xinjiang for research have muted open academic exploration of this persecution. In other words, the focus on positive liberty for the Global South has outweighed the negative liberty of academics to criticise the CCP, and in doing so has ironically failed to create a space for the voices of the Uighurs.

When he saw the Tsarist policeman being lynched, Berlin knew that positive liberty that spills over into authoritarianism, however well-intentioned, threatens true freedom. This is surely a lesson that universities need to take heed of.

Joseph Mintz is associate professor in education at the UCL Institute of Education in London.