Does Denmark need the Chicago principles? In the US, their success is still an open question

Bonfires, barricades and rocks thrown at police. This was the scene at the University of California Berkeley when a conservative students group in 2017 invited the controversial right-wing debater Milo Yiannopoulos to speak.

The day had started peacefully with 1,500 people protesting against his presence with signs that proclaimed ‘No safe spaces for racists’ and ‘This is war’. But suddenly, about 150 masked protesters appeared, dressed in black, and intent on showing their dissatisfaction through means that were more radical: The rioters smashed windows, threw smoke bombs into buildings, and started fires with Molotov cocktails.

The university, which in the days leading up to the event had held up to the pressure, now felt compelled to cancel the event. And the sitting US president Donald J. Trump, later tweeted a threat to remove the university’s public funding.

The case is extreme, but the theme of the conflict – the opportunities for controversial viewpoints to be expressed on campus – is neither new nor unique. From as early as 2013, when students from Brown University shouted down a speech from the New York police commissioner as a protest against police racism, freedom of speech has been a hot topic at US universities.

It was scenes like these that had the University of Chicago set up a committee for freedom of speech at the university in 2014. The committee was tasked with codifying freedom of expression – a number of principles that have subsequently been adopted by more than 80 other universities, including Stanford and Columbia.

And now the discussion has reached Denmark. In October 2021, the Liberal Alliance Party proposed that the principles should be incorporated into the Danish University Act. Minister for Higher Education and Science Jesper Petersen rejected the proposal, and urged universities to formulate their own principles instead. But the discussion about freedom of speech lives on.

This May, the Danish parliament’s Committee on Education and Research had an open consultation on the Chicago principles. Chairman of the committee, the Social Democrat Kasper Sand Kjær, said on this occasion that »even though we did not agree with (the Liberal Alliance Party proposal, ed.), we agreed that we can take inspiration from it«.

The question is, what lessons can be taken from the United States, where the Chicago principles have existed for nearly seven years. And why do some people think that the principles, which should ensure that more voices are present in public debate, actually lead to the opposite? And do they actually have an effect in the real world, or are they just words on paper? The University Post looked for answers from three key figures in the US debate.

Be cautious about universal rules

You would think that the author of the Chicago Principles would be an advocate of disseminating them further by having them included in Danish legislation. But Geoffrey R. Stone is reticent about this idea, when the University Post got hold of him via a network connection.

»You should really consider this carefully,« he warns.

As professor of law at the University of Chicago, he led the work in formulating the principles at the time. But his enthusiasm for directly copying them into a Danish context is limited. The fact that universities in Denmark are public institutions means that this is more legitimate than if it happened with the US private universities, he says. But by introducing the principles via legislation, you may, paradoxically, help undermine that academic freedom that the principles are trying to protect.

»Part of academic freedom is that you choose how to run a university. So I would say that governments should be cautious about passing universally binding rules related to academic culture.«

Geoffrey R. Stone is, however, quick to stress that there are exceptions. When governments legislate, for example, against discrimination on the basis of race, this is acceptable because the government interest in preventing racism is so large that it trumps the institutions’ independence, he believes.

»But in this case, I can understand people protesting and insisting that each university should have the independence to decide for themselves.«

Professor at the University of Pennsylvania Sigal Ben-Porath agrees with this assessment. She specializes in freedom of speech at universities and has often placed herself in opposition to Geoffrey R. Stone and the Chicago principles. But while they disagree on most things, they agree that Denmark should be cautious about introducing the principles into law. Sigal Ben-Porath points out that freedom of speech is already guaranteed in our Danish constitution. In addition to this, universities in Denmark and in other democracies are currently finding their own approaches to the challenges. And this includes the realization that freedom of expression is already a fundamental value of the university as an institution.

»So what is the point of laying down principles from the top?« she asks.

Sigal Ben-Porath herself has one suggestion: To limit universities’ autonomy.

»It is stated, in other words, that the power to determine the limits of what is to be said, resides in government. The power does not reside in the auditorium, with the student paper, with the student communities, or with universities in general.«

Part of academic freedom is that you choose how to run a university yourself. So I would say that governments should be cautious about passing universally binding rules related to academic culture.

Geoffrey R. Stone, the author of the Chicago Principles

 

She takes a break and finds something on her screen. Some of the Chicago principles that she is critical of, she would like to read aloud. Because she believes that there is something within the principles themselves that is inherently against the idea of adopting them into legislation.

»It is up to the individual members of the university community, not the university as an institution, to make these judgments [to approve of an idea or a person, ed.]« it states towards the end of the principles.

»The individual members,« she repeats.

»And when it is not even the university that should decide, then you should of course not take it up one level and say that it is up to government to decide what you can say at university.«

Freedom of speech preventing speech

It was actually a bit coincidental that Sigal Ben-Porath got involved in the debate. As part of her administrative duties, she was asked in 2015 to chair the University of Pennsylvania’s freedom of speech committee – a body where students, researchers and the administration decide what the university line is on the issue.

»My research has been about democratic theory, so it seemed like an interesting assignment. But I had never anticipated that what was a minor committee assignment would become a full-time job.«

At the same time as she took on the task, the discussions blew up about were about whether extremist speakers should be welcome at the universities. Also at her own university, where the election of Donald J. Trump – a university alumnus – as US president, the year after, also set the debate on fire. Was he even welcome at his own university?

If you disagree, you should ask critical questions and formulate arguments against them instead of excluding people.

Geoffrey R. Stone

 

In the debate, two sides are often represented. On the one hand, there are those who want to prevent universities from providing a platform for anything they consider to be extreme and harmful points of view. On the other hand, there are those who believe that the university as an institution should be able to accommodate a variety of ideas – including those that are deemed offensive – in order to fulfil its task of producing and disseminating knowledge. Geoffrey R. Stone belongs to the last group.

»If you disagree, you should ask critical questions and formulate arguments against them instead of excluding people,« he says. He points out that the alternative is a bubble that just makes it more difficult to understand the world outside.

Sigal Ben-Porath, who has now written two books about the subject, on the other hand sees herself as somewhere between the two competing viewpoints. She believes in principle that there needs to be a wide scope for freedom of speech, because it is a part of university life that students and staff discuss different perspectives.

»But I also believe that if you just let everything be completely free – for example by allowing teaching staff to make derogatory comments about immigrants – then it will be counterproductive to the idea of the exchange of a multiplicity of opinions.«

The derogatory speech that would be given space under the Chicago principles would have minorities withdraw from the debate, and the result would be a debate in which certain perspectives are excluded.

»In this way, the principles of letting everyone speak can paradoxically prevent people from having their voices heard – and that is not the purpose of it,« she argues.

Her concern is a real one, acknowledges Geoffrey R. Stone, but for him the solution is not to restrict speech. We should educate instead those who withdraw from expressing themselves – something that he believes is already under way.

»When I talk to the black students I taught 30 years ago and ask them what they think about the fact that I used certain derogatory words or discussed specific topics, they explain that it did actually offend them. But they never said it, because they feared being considered to be idiots if they talked about it out loud. Today I can see that students are much more willing to express this perspective.«

Sigal Ben-Porath acknowledges that her reluctance to allow everything within the framework of the law, will make a discussion of where you should instead place the cut more complex.

»There is no clear answer. This is something that I believe should be discussed on an ongoing basis at universities. And in the few cases where it becomes necessary, you can have a committee of students, researchers and management that definitively decides what is specifically to be permitted.«

Has not stopped all controversies

It’s one thing to discuss the principles – the words on the paper. But an even bigger discussion is whether they have an effect on society. Do they solve the problem they were set up to solve?

Mary Griffin is one of the people who believes that the principles have made a difference. She is Senior Program Officer in the NGO Foundation for Individual Rights in Education (FIRE), which has been set up to fight for the freedom of speech at US universities. FIRE led the campaign which had the Chicago principles being applied beyond its local context in Chicago to being accepted across the country’s universities. And it has definitely had an effect, according to Mary Griffin.

»Say you have a controversial speaker who comes to the university, and people are demanding that they should not be allowed to speak. Then it is much easier for senior management to point out that it was decided a few years ago that they are obliged to apply these principles, and this is something that they want to uphold. In this way, it helps avoid controversies, because you do not have to take a position in each individual situation.«

In the past I would without hesitation have used certain derogatory words in the context of, for example, teaching that the US Constitution means that you cannot be penalised for using a particular word.

Geoffrey R. Stone

But this is precisely the downside of the principles, Sigal Ben-Porath argues.

»Then you get voices being heard at the university, which in turn negatively affect people’s willingness to participate in the debate. And when you then want to discuss whether the limits should not be placed somewhere other than absolute freedom within the law, then you can simply point to the Chicago principles and the discussion is shut down.«

Even though both sides are in agreement, however, that the Chicago principles have had an effect, their prevalence has not stopped all controversies. On their website, FIRE lists all the speakers who have had their invitations rescinded, or who have been drowned out by protesters. It has happened in 13 cases so far this year. But this does accurately indicate the full extent of the problem, emphasises Geoffrey R. Stone.

»Because of the atmosphere, there are many people who are not invited in the first place. And then there are all the limitations you see in daily life,« he says.

»In the past I would have, without hesitation, used certain derogatory words in the context of, for example, teaching that the US Constitution means that you cannot be penalised for using a particular word. But this renewed sensitivity that has come about over the past seven years, has meant that people will not accept these words, regardless of context.«

A limitation that he not only sees in the use of words, but also in the expression of certain points of view. He points, as an example, to the question of affirmative action – policies that favour groups who have traditionally been discriminated against.

»One of the counter-arguments against affirmative action is, that the students who enter universities because of it, are less qualified and therefore tend to cope less well than others. But if someone says this in a classroom today, it would be considered completely inappropriate. And this clearly prevents us from discussing important issues in a straightforward and honest manner.«

A universal debate

The question remains how to apply the US experience to Denmark. Both Aarhus University, Copenhagen Business School and the University of Southern Denmark have either published statements confirming freedom of speech that have a lot in common with the Chicago principles, or set up committees to work on the matter. But the University of Copenhagen management has been more reticent.

Prorector for Research David Dreyer Lassen explained in the hearing at the Danish parliament that he does not believe that it makes sense to draw up rules or legislation.

»As a university, we need to communicate and to cultivate an academic culture and ethics, where you can agree to disagree. We can, I think, get better at this,« he concluded.

When Geoffrey R. Stone looks back, he is surprised that his work with the principles has had such a large effect, that they are also discussed in a Danish context. When they wrote them, it was not the idea at all that they should be adopted at other universities – never mind in other countries’ legislation.

»In this way, it is surprising. But on the other hand, it makes sense, because it is in many ways a universal debate,« he says.