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Our tolerance for expression that we value often exceeds our tolerance for expression we find distasteful. Nonetheless, if there’s a place in society where the high ground on free expression should be consistently held, .

While universities are expected to foster robust debate on a range of contentious and controversial issues, finding the right balance between free expression and protection from harm is no easy task.

University campuses across Canada and consumed by , and there have been . Prime Minister Justin Trudeau says anti-semitic and Islamophobic incidents have left Canadians

In Ontario and in Alberta, university decision-making will be an important test of recent .

Conservative campaign promises

When majority Conservative governments came , they to compel post-secondary institutions to create or update their free expression policies.

These policy shifts arose in response to the perception of over the past decade.

They also followed high-profile expressive controversies on campus — like and in 2016 and 2017 respectively. Provincial policies were intended to address what some conservatives believe is an inhospitable environment for them on campus.

Alberta touted its comparatively collaborative approach, and Ontario .

Ontario reported , and Alberta reported every institution obliged with for religious reasons.

‘Chicago Principles’ and free expression

Alberta instructed post-secondary institutions “,” a policy template with , and Ontario told .

Key pillars of the Chicago Principles are:

1. It’s up to the university community — not the administration — to make judgments about the merits of campus expression.
2. The proper response to problematic expression is argument rather than censorship. In the words of the report that spawned these principles: “The university’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth .”
3. Universities ought not “shield individuals from ideas and opinions they find unwelcome, disagreeable or even deeply offensive.”

Widest possible latitude for expression

While the Chicago Principles emphasize civility and collegiality, they also argue the absence of these values ought not be invoked as a justification for expressive restrictions, even in the context of “offensive or disagreeable” expression.

The principles envision the widest latitude possible for campus expression, subject only to narrow time, place and manner restrictions (to ensure the proper functioning of the university) and any applicable legal prohibitions (that is, ).

The Chicago Principles are relatively uncontroversial for an academic environment, even if they reflect .

But applying them to a Canadian context is easier said than done. Although institutional policies now reflect them in some form, there is still some variability between them. Furthermore, most expression that sparks campus controversy exists in a grey area between the controversial and the potentially discriminatory.

Challenges responding at universities

Following Hamas’s attack , university administrations have issued statements expression and intimidation.

In response, some faculty and students have questioned administrations and are accusing them of bias and silencing dissent.

At York University, in response to an open letter that it says has been widely interpreted as a “.”

As a result of such controversies, the reasonable limits for expression are being redefined in real time.

Disagreement on expressive harms

Within academic communities, there is about which forms of expressive harms ought to result in expressive restrictions.

To complicate matters further, universities have significant discretion in their decision-making in the context of expressive restrictions. It’s subject to a deferential standard of “reasonableness” in administrative law, and Canada’s strongest protection for free expression — — scarcely applies at all.

Legal remedies, questions of university mission

Universities are faced with the dilemma of what to do about expression that may not be discriminatory as a point of law.

Universities can exercise their additional discretion and restrict expression if they believe it compromises their mission (facilitating an inhospitable environment) or rely solely upon the reasonable limits established by Canadian jurisprudence.

Each option has costs and benefits. In the context of polarizing issues, university decision-making will rarely satisfy everyone.

Given redoubled efforts to protect expression in Ontario and Alberta, universities arguably bear the burden of showing that any expression they restrict at least appears to cross a legal threshold.

Conservatives embracing restrictions?

However, the dilemma for some conservative politicians, parties and pundits who have insisted before now that free expression is imperiled on campus is more daunting.

Ontario Premier Doug Ford’s government recently took the in response to her criticisms of Israel.

In response to campus reactions to the conflict in the Middle East, the National Post recently said “,” including “reprimanding the most egregious professors.”

Will calls for censorship grow?

With no sign of campus unrest relenting, calls for censorship may grow.

In theory, compelling universities to conform means they bear a greater obligation to protect expression that is within the bounds of law.

But given the backlash and legitimate concern about discrimination and hate, how universities will navigate this fraught time is far from certain.

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, Peacock Postdoctoral Fellow in Pedagogy, Department of Political Studies,

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