In Defense of Free Speech in Universities

Front matter

IN DEFENSE OF FREE SPEECH IN UNIVERSITIES

A Study of Three Jurisdictions

AMY LAI a ae | D ta T SN f x i ? : Past ir. Sy m A — £ A (tale

Chapter 1 Free Speech in Western Universities 15

Chapter 2 Academic Freedom: History, Definitions, and Democratic Significance 30 Chapter 3 Campus Free Speech and Academic Freedom 46 PART TWO

Chapter 4 Free Speech, Compelled Speech, Fact/Falsehood/Unpopular Opinion 57

Chapter 5 Political Correctness, Harassment/Discrimination/ Hate Speech, Microaggression 81

Chapter 6 Deplatforming, Trigger Warning, Safe Space 116 vi / CONTENTS

Part Three

Chapter 7 The United Kingdom: Human Rights Act, a New Bill, and the Uncertain Future of Campus Speech 155

Chapter 8 The United States: First Amendment, Speech Codes, and Promising but “Not Quite There Yet” Results 197 Chapter 9 Canada: The (Ir)relevance of the Charter to

Campus Speech 238 Conclusion 283

About the Author 287

Preface and Acknowledgments

Grief is the price we pay for love.

— QUEEN ELIZABETH II

The courtyard is lit with tiny spots—green, yellow, and orange. The scene of fireflies lighting up the countryside on a summer night fascinated me as a wideeyed kid who had yet to venture out of her disappearing birth city. I cannot recall when I became wary of the dark and forsook the pleasure of watching fireflies, a wariness that persisted after I settled in the Western world, where I looked back with horror at a distant home sinking into chaos.

In various cultures, fireflies are believed to carry the souls of dead soldiers, heroes, and leaders. As such, they are a symbol of both death and eternity. Long gone are the days of childhood, a time when death seemed a remote idea. Every time someone dear to me or whom I respected for their courage and uprightness passed away, I imagined them, through teary eyes, becoming little souls residing in these glowing beetles. Honorable but fragile humans, very much like fundamental ideas that are prone to be forgotten in a materialistic world, are then immortalized in a vision both fleeting and eternal.

The number of fireflies, I kept getting told, has gone down in places all over the world. Despite knowing their recent comeback in many North American neighborhoods, I did not expect to see them in a suburb in Berlin—glowing and waning spots of light looked like rekindled sparks after a flame had died down. Their presence shrouded the courtyard and woodlands nearby in an eeriness that sparks longing and nostalgia.

viii / PREFACE AND ACKNOWLEDGMENTS

It was a long day. I got off work and felt unusually exhausted. Thus, I took an empty seat once I got on a subway train in downtown Boston. It was a long ride. I normally would stay alert. This time I dozed off within minutes out of exhaustion. Suddenly, I felt a knock on my head. “Give the seat to the man!” I opened my eyes to find the angry face of a very fair-skinned little girl. She was very young— probably five or six. She then used her little hand that woke me up to point to a dark-skinned man in his thirties nearby who was carrying a small child.

I rose without a second thought and tried to steady myself by grabbing the nearest handrail. With my abdomen in deep throngs of pain, I closed my eyes again and pictured people on the train reprimanding me for falling asleep and not giving my seat to a poor, needy man before being told to do so by a bystander who, despite her age, had better etiquette and was more compassionate to those in need.

I finally ran off at the next station. As blood gushed out of my body, I collapsed on the nearest bench on the platform. I wept not out of pain but shame. If I had been well, I would likely have been the first person to volunteer help to the man, or any people regardless of their race, ethnicity, or even their age (imagine a teenager holding several bags or looking visibly sick!). But I felt ill and very exhausted. The little girl, no matter how noble her intention, had no right to wake up a stranger and order her to give up her seat. I could have declined. I had every right and reason to do so. Yet I did not. I felt ashamed of my weakness.

“Are you okay? Do you want some water?” I looked up to see a concerned teenaged girl. She took out a bottle of distilled water from her bag and handed it to me. What caught my attention was the school uniform she was wearing: most American high schools do not at all implement school uniforms. Her burgundy school blazer and its shiny logo dazzled my eyes, as my mind wandered back to my adolescence in Hong Kong.

The school that I went to was set up in the early 1900s by Catholic missionaries from Italy. Located in a secluded spot in West Tsimshatsui, one of the city’s busiest commercial districts, it boasts of some magnificent Classical-style buildings and a serene campus, in stark contrast to the hustle-bustle of the district. While the principals were usually nuns hailing form a certain Italy-based religious institute, most teachers and students were local people. Classes were conducted in both Chinese and English. Half of the students opted to enroll in Chinese and English literature classes for the public exam. A minority studied French.

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I used to detest the school for its strict regulations, stern teachers, and some snobbish and petty classmates. In recent years, I gradually came to feel grateful to it for very good reasons. It did not implement a superficial kindness that has been proven, time and again, to be a pretext for tolerance of bad conduct or plain authoritarianism. Although we had to study the Bible and attend prayer assemblies, which was reasonable as we were there by (our parents’) choice, none of us was forced to convert to Catholicism, and non-Catholics were not discriminated against in any way (for example, top students, be they Catholics or not, were awarded prizes and scholarships). We were merely taught to follow the general tenets and be principled, hardworking, and respectful. We were encouraged to express ourselves. We were urged to take part in community service and be compassionate to the less fortunate. The works of Shakespeare, George Orwell, and Hsu Chih-mo nurtured in me a keen curiosity about Britain, Cambridge, and many other legendary European cities and writers from different cultures.

After so many years, I realized that this very learning environment—where one was taught morals and manners and where multiple languages were embraced and no one was persecuted for religious or political reasons—was possible only in a Hong Kong under British governance. It was the same Hong Kong that enjoyed the rule of law, tolerated schools and organizations of various political and religious affiliations, and served as a haven for refugees fleeing from Vietnam and other countries in turmoil but produced no political refugees of its own. (Things were no doubt not perfect. In employment settings, for example, there were instances where mediocre people from Britain and other British commonwealth countries were hired over better-qualified locals and succeeded by virtue of their skin color and foreign backgrounds—these were generally known as “Filth, the acronym for “Failed in London, try Hong Kong.” Expatriates who were indeed capable and respectful of local culture were respected in return, while criticisms of the incapable ones were allowed in a civilized and well-governed city.)

Our school was only steps away from the world-renowned hotel, the Peninsula, which was used by the Japanese as a military headquarter during World War II. Our history teacher, reputed for her serious demeanor, candidness, and vast knowledge, revealed the likely reason why the school was left unscathed during the air raids: “We hung a huge Italian flag across our main building to warn the invaders that it was untouchable.” If true, the flag literally became a giant pair of wings that shielded the school from harm while the rest of the city risked getting bombed to ruins, not unlike how the British shielded Hong Kong x / PREFACE AND ACKNOWLEDGMENTS from the major calamities under Chinese—especially Chinese communist— governance before the city’s handover in 1997.

The subway incident happened some years ago in Boston and I no longer think of it that often. Recently, though, my school memories have returned to haunt me—for very, very unfortunate reasons. Since the beginning of 2022, all public schools in Hong Kong, kindergartens included, have been required by law to display the Chinese flag on every school day. They must also conduct a flag-raising ceremony with singing of the Chinese anthem once a week. I could not picture the grotesque ritual at my school without envisaging a lovely and elegant maiden being repeatedly ravished by a brute and no bystander willing to step in or speak out, due to indifference, cowardice, or tacit approval of the atrocious act. (“Hong Kong lawyer,’ “Hong Kong legal scholar,’ and “Hong Kong academic” are now oxymorons. One has to wonder what could have motivated people born and raised in Western democracies to not only watch passively and, in some cases, to cheer on the oppressor, but to stay in this fallen city other than their prioritization of money and a false sense of superiority over fundamental freedoms and real dignity that comes along with these freedoms—the same priorities that helped contribute to the fall of the city in the first place. Alas, there are many things that money can't buy. Money can’t buy class, integrity, or dignity.)

Forever gone are the good old days of British Hong Kong, which was far from perfect but civilized and prosperous especially from the 1970s to the ’90s until its ill-fated handover. At one of its finest schools, I cultivated manners and a strong work ethic and learned to distinguish between right and wrong. Back then, on its idyllic campus, I was more a conformist than a rebel. To date, I still have my moments of weakness. I nonetheless attribute to my upbringing in this long-gone city my lifelong mission not to cave to pressure and to stand up for what is right.

When I am entitled to sit, dont ask me to stand; when I want to stand, I won't kneel under pressure.

Canada prides itself on its multiculturalism. Like the multilingual signs at its international airports, multiculturalism is not an inherently bad policy. In fact, it is beneficial in many ways. One rarely finds a person who does not enjoy cuisines around the world, for example. My favorite dish has always been Canton-style steamed fish. I regularly have sushi for lunch and Korean hot pot for dinner. It might even be fair to say that people from different cultures always

PREFACE AND ACKNOWLEDGMENTS / xi have something to learn from one another beyond food recipes. Nevertheless, the concerted effort by leaders and scholars to gloss over potential problems created by this policy, all in the name of peace and tolerance, is unsettling.

Many Canadians endeavor to be good citizens by embracing multiculturalism, or, at least, by broadcasting to the world that they do. Some academics are great; others tend to be so driven by mainstream ideologies that they seem to have long forgotten the importance of intellectual honesty and rational debate. The latter, who otherwise appear cheerful and relaxed, are easily triggered—not by physical violence or threats of such, but by ideas and opinions. For most of Hong Kong’s pro-democracy people, a “safe space” would have referred to spaces free from tear gas, bullets, surveillance, and arbitrary detention. Here, a “safe space” is generally understood as one free from offensive ideas or anything deviating from their deeply held beliefs. Deplatforming of “unsafe” opinions and ideas, sometimes in the form of penalizing “heretical” academics, by university students and staff has become a common tactic to counter unorthodox or ideologically impure opinions and views, including those expressed in the most civil manner.

Perhaps one needs to be well-versed in history, to have relatives who suffered under communism, or to have experienced firsthand the atrocities in communist countries, to be able to fully perceive how such conduct is reminiscent of the Red Guards in Mao’s China or the Stasi secret police in East Germany. “Freedom of expression is not freedom from consequences,’ these people keep chanting, “freedom of expression is not freedom to hurt and offend.” Well, if section 2(b) of the Charter does not protect offensive ideas, then what functions does it serve?

In some Canadian public schools, students are taught that privilege depends primarily on the color of a person’s skin. As in many American settings, an oppression hierarchy has been established—according to which East Asians are seen as being almost as privileged as white people by virtue of their skin color (and their academic achievements)—which serves as the guidance for mitigating historical wrongs (for example, in employment and university admission). A sole focus on this hierarchy, however, oversimplifies identity politics in Canada. The city of Vancouver, for example, used to have laws discriminating against Japanese and Chinese. This is atrocious, given that people are defined not by their skin color but by their conduct. A misguided attempt to mitigate this ugly historical wrong has been underway, which is to tolerate all people in these once-oppressed groups regardless of their conduct and refuse to call out xii / PREFACE AND ACKNOWLEDGMENTS or penalize bad behaviors by these groups. Canadian universities are quick to virtue-signal on many social justice issues but would never dare to criticize the Chinese government for its genocide of minorities or punish dishonest students from China for fear of “racism” accusations. Certainly, some immigrants from China are the most honest, hardworking, and humble people I have ever met in my life. Some other immigrants, however, are to blame for the rampant money laundering and infiltration of local politics by the Chinese government, while corrupt and greedy government officials and businessmen continue to facilitate the corruption.

My readers have likely read about wealthy immigrants from China honking their Ferraris in their attempts to drown out Hong Kong pro-democracy protests in Toronto. Yes, attacks on Hongkongers by immigrants from China, generally believed to be supported or even initiated by the Chinese embassy and consulates, have often gone unpunished by Canadian law enforcement and university authorities. Personal anecdotes also reveal an overly tolerant and unsuspecting—even welcoming—attitude among the educated elites toward not only Chinese offenders but also their hostile government. I have heard of the principals of a top university’s graduate student hostel, which houses many students from China, monitoring the social media postings of its residents to detect any message that may offend the Chinese students, as well as meeting and dining with members of the Chinese consulate. This is utterly unthinkable and unbecoming of these so-called educators, given the far-reaching implications of their conduct. For some Canadian academics, their fear of offending Chinese students is at times so irrational that it severely impacts their teaching. I recall a political science professor who admitted to having refrained from using the Chinese “president” as an example of a dictator in his class. Instead, he used Donald Trump, the democratically elected former president of the United States who, despite his flaws, had to work within a democratic system. Hence, the two examples of a modern dictator that he used were Adolf Hitler and Trump. How can students learn in universities full of teachers who are so cowardly, intellectually dishonest, or indoctrinated?

Come 2020. The COVID-19 virus and its variants ravaging the world also emboldened the Canadian government to unleash its authoritarian impulses. Freedom of expression was further suppressed, and many in Canada were punished for speaking their minds through words or actions. Amid the public outcry against anti-Asian racism, legitimate criticisms of the Chinese government

PREFACE AND ACKNOWLEDGMENTS / xii were conflated with racism against Chinese people in an intellectually empty and overused rhetoric. Idling on the couch, I rewatched the Korean movie Train to Busan (2016). The scenes where human characters flee from an encroaching army of zombies to avoid being attacked and becoming zombies themselves—so surreal and yet so familiar—distracted me from the outside world that had gone mad.

If I had been born in Canada, I likely would have grown up to be happier and less cynical, and may have become an accepted, even popular, member of the “woke” crowds. The lessons that living through these trying times taught me, soul-crushing in the short term, have enabled me to better myself and to transcend them in many respects. In addition, being born in British Hong Kong might have been a blessing in disguise. Witnessing the rise and decline of my birth city, and the painful process of finding the root causes of its demise, transformed me into a more courageous and much wiser person than I otherwise would have been.

In Germany, academic freedom is protected by its very own constitution. No country is perfect: it has suffered problems very similar to those in Anglophone countries and many of its laws governing freedom of speech are known to be stricter than their American, British, and Canadian counterparts. At the same time, one is generally free to address topics within the bounds of the law and can even obtain substantial funding for projects that are considered “too controversial” and “politically incorrect” in Anglophone academia.

Yet many German academics, like their peers in Anglophone countries, have refused to fully acknowledge the harms of all extreme politics. Such a failure heralds a worrying development in German universities. Two incidents particularly irked me. Incident one: I was invited by another German university to give a guest lecture on the pro-democracy movement in Hong Kong. I endeavored to offer a realistic picture of Hong Kong under British governance and after its handover to China, detailing the accomplishments by the joint efforts of British and Hong Kong people and their destruction by China, the new colonizer. One course coordinator took issue with an initial draft of my talk, claiming that the course aimed to teach students the harms of colonialism. My account showing the prosperity of British Hong Kong as well as conveying the message that some forms of colonialism are less harmful than others therexiv / PREFACE AND ACKNOWLEDGMENTS fore fell outside its paradigm. I responded that I did not aim to justify colonialism. Far from that. I aimed instead to paint a real picture of British Hong Kong, where life was not perfect but where people enjoyed the rule of law and most liberties, and to argue that the British laid down a good system of governance that Hongkongers want to retain in their fight for autonomy and self-governance. The other course coordinator admitted to knowing next to nothing about the place but said my narrative could fuel racism against the Chinese. How can embracing the rule of law, which does exist in well-developed Asian countries such as Japan, be racist? Obsessed with Hitler but oblivious to the harms of other radical politics, this German professor nevertheless kept shaking her head while hearing my lived experiences: she did not even attempt to hide the fact that she found my account of a stable and prosperous British Hong Kong, which did not align with her simplistic narrative and worldview according to which all colonized subjects are slaves without any agency, dangerous. While she approved—albeit reluctantly—a new draft of the talk, in which I kept all the substantive facts and arguments, I clearly became a sore thumb and heretic—and an irredeemable one armed with lived experiences—in their eyes.

Incident two: someone forwarded an announcement about an international bestselling author's upcoming talk in Berlin in an email group. A European recipient in the group responded in anger, claiming deep offense at the author's upcoming presence in the city because his views were “deeply offensive” and doubting that the author would be invited to any university because of his offensive and dangerous views. Ironically, though, a few months before this angered response, the author returned from his visit to one of the most prestigious universities in world. Another recipient, as if to echo the anti-Enlightenment spirit in the angered response, chimed in, “Well, you should have known that the speaker's views are far removed from what the recipients would have agreed with” (Subtext: youre asking for such a response!) Again, this incident happened in Berlin, a city that earned its fame for having witnessed two dictatorships on both ends of the political spectrum. One cannot help but wonder: in what kind of world do the offended recipient and the course coordinators—and people who think and act similarly—believe humans should live? Fortunately, local students seem to be more open to different opinions. There is hope. One can only hope that those who were shot at the Berlin Wall or otherwise perished while fighting the East German regime did not suffer in vain.

I have not wavered despite these unfortunate incidents: if anything, my

PREFACE AND ACKNOWLEDGMENTS / xv convictions were strengthened. Above all, I know for a fact that Great Britain, regardless of how rotten it has become and the multiple problems that it shared with America and Canada in the twenty-first century, has been and will always be my home. My arrival at Heathrow Airport and in Cambridge and the welcoming looks and greetings on Clare Bridge years ago remain my treasured moments of homecoming.

Born British, always British.

This book was first conceived in late 2018 during a visit to my birth city. Its research and writing spanned a period from late 2018 to early 2022, interrupted multiple times due to political and social upheavals on different continents, all of which, quite sadly and ironically, testify to the erosion of our fundamental freedoms. I cannot thank enough Elizabeth Demers, the editorial director of the University of Michigan Press, as well as every member of her editorial team, for their patience, open-mindedness, and unflinching commitment to academic freedom.

My sincere gratitude also goes to my reviewers who remained anonymous until after my project had gone on to the copyediting stage. I appreciate especially one reviewer's appreciative remark that my work “does not fit neatly into a ‘left’/ ‘right’ box.” Indeed, no two persons think the same and one’s worldview may shift over time. All along, I had been aiming to avoid ideologically driven and jargon-filled dialogues and instead to present well-reasoned, fact-based arguments in plain language. Upon reading this remark—albeit a generous one—I felt like my mission was complete.

Seldom do authors thank themselves and they need to do so more frequently—my last words of gratitude are reserved for myself.

I published my first book with Cambridge University Press. I almost did not make it. One reviewer identified what he considered a major “flaw” in my manuscript, which was to apply a Western Enlightenment framework of freedom of speech to the study of Hong Kong, a non-Western jurisdiction. This view, now very common in Western academia, is inherently racist by implying that people outside the Western world do not deserve the same amount or type of freedom as those in Western societies do. Cultural relativism, if taken too far, is indeed dangerous: If freedom of expression is Eurocentric and should be rewritten, does it follow that the freedom from being raped or murdered also needs to be rewritxvi / PREFACE AND ACKNOWLEDGMENTS ten? As luck would have it, the publisher sought feedback from a third reviewer, who approved it without reservations. The book, as well as my other writing, has already earned me four prestigious awards in the U.S., Canada, and Germany.

New York artist Ron English’s parody of Vincent van Gogh's Starry Night was selected for its aesthetic appeal to grace the cover of my first book, which I dedicated to “all people out there who have integrity, who help to uphold the rule of law, and who stand up to evil and tyranny? The cover image took on a meaning the profundity of which I was not aware at the time. Coincidentally, American singer-songwriter Don McLean named his song after the painter, describing him as one who suffered for (because of) his sanity. I hereby dedicate this book, which can be deemed a sequel to my first, to people out there who speak truth to power, and who have suffered and will continue to suffer because of their sanity.

It is unclear whether it was W. B. Yeats who said, “There are no strangers here; only friends whom you haven't yet met? I wish many people who passed away at different points of my life and whom I still miss dearly could read this book. The living ones who read and appreciate it should see it as a token of friendship. For people who might feel offended by any part of it and want to attack its author, I have decided that I owe them no apology. To apologize for intellectually honest opinions and arguments made in good faith would be akin to kneeling on broken glass during the Cultural Revolution in China. Back then, those poor people—typically the well-educated—had no choice but to endure tortures and indignities. In civilized nations, those who can stand but choose to kneel will never be able to stand upright or walk straight again.

Throughout history, book-burning took place under different authoritarian regimes. Even today, books keep getting burned—both literally and metaphorically. As sparks fly, their ideas become the smoke that rises above the devouring flames and meanders toward the sky. I have always imagined Robert Schumann's “Traumerei” accompanying the rising smoke. This is what I have been practicing with the Yamaha digital piano that I bought with the royalties of my first book, and what I, an introvert, plan to play when that whole “party” collapses one day and crowds celebrate in the streets.

Deep down, I am still the little girl who sobbed hearing sad and nostalgic music; who waited with a dish of cat food or milk for a stray little kitten in her neighborhood; who frowned at injustices while her classmates smiled and nodded in contentment; who, walking out of an orientation meeting in early dusk

PREFACE AND ACKNOWLEDGMENTS / xvii and bewildered that darkness had already engulfed her new, beloved English city, panicked and struggled to find her way back to the dormitory on a wintry night.

Deep down, I am still that girl, now treading along a path often unlit by fireflies—slowly and steadily—toward the light in the distance, as countless figures and apparitions carelessly fall over or willfully succumb to the swirling abysses around them.

August 2022 Brandenburg Gate

Author’s Note

The laws and materials in this book are updated to the end of April 2023.

Introduction

Freedom of expression on university campuses has become a pressing issue in many Western democratic countries in recent years. Imagine yourself in the following scenarios—

Andrew, a young professor and new hire at a well-known law school, was brimming with excitement on his way to attend a talk hosted by a student organization. Several colleagues from other Western countries had been invited to speak on the contentious but important topic of immigration. He was especially eager to exchange with his dear friend, an award-winning researcher and teacher with whom he did not always agree but whose knowledge, courage, and congeniality he had always admired. Upon arriving at the venue, he was greeted by a group of disgruntled student protesters who had congregated with their giant “f*ck bigotry” banner: fearing that the vehement protest in anticipation of his friend’s arrival would escalate into violence, the university had the entire event canceled for “safety” reasons.

Beatrice, whose tenure review would be decided in the coming month, joined a campus rally organized by her Hong Kong students in support of the democracy movement and in solidarity with the arbitrarily jailed activists in their home city. What began as a peaceful assembly was soon disrupted by a counterprotest backed by the Chinese embassy. She, along with several Hongkongers, was beaten by some rabid nationalists from China. Still recovering from her broken leg, she was summoned to a disciplinary meeting where her boss told her: “We have zero tolerance for racism and hate—you must not support those racist troublemakers from Hong Kong who mock China and their fellow Chinese by claiming that their city was a better place when governed by the Brits!”

Calvin is teaching his popular course on world politics again this semester. A tenured professor, he is well versed in Chinese politics. After reviewing the name list, he decided to use Adolf Hitler and Donald Trump as examples of a dictator. He deliberately avoided mentioning Xi Jinping, head of the Chinese Communist Party (or China's “president”), like he did last time, as he noticed numerous Chinese students in his class, some of whom might have received their prior education exclusively in China and might take offense at the idea that Xi bears any semblance to a dictator. In fact, he has taken extreme care to not do anything that rabid Chinese nationalists, or the Chinese government, deem “racist”: he desperately needs to improve his evaluations to remain competitive for his faculty’s teaching award. The program chair and the university's president would also get upset if any “racist” remark or accusation of racism would cause a drop in student enrollment.

The foregoing episodes are by no means taken from a dystopia. Based on real incidents, they satirize the harmful politics dominating at least some Western university campuses. Few equality-loving people would deny that racism and xenophobia are social ills that need to be addressed. Society cannot find out the best ways to address evils as such without honest discussion. A healthy, functional university environment tolerates, even welcomes, opposing views on difficult but important topics. Suppressing facts, ideas, and perspectives that challenge orthodox ideas and calling people holding such ideas and perspectives “bigots,” on the contrary, allows misinformation to flourish and produces echo chambers in which unchallenged members are prone to get radicalized by their preferred ideologies, even to the extent that they seek to control other people’s thoughts, cry foul at sensible and well-reasoned opinions challenging their own, and create oppressive, authoritarian learning environments. Despite their good intentions, these crusaders are blindsided by their simplistic ideologies and fail to tackle the problems that they aim to solve. Worse still, their zealousness can become overtaken by greed—for money, material gain, and power. Like the professor in the last scenario who took the position that criticizing China’s government, not its people, is racist, these people do not only make their universities authoritarian: while obsessing over political correctness and the avoidance of emotional harm, they continue to appease a foreign authoritarian government and enable it to infiltrate Western academia.