In April 2010, in the dying days of his premiership, Gordon Brown passed the Equality Act, which he had promised to implement in Labour’s 2005 election manifesto. Brown’s bill consolidated a number of previous pieces of legislation - from the 1970 Equal Pay Act to the 2006 Equality Act - into a single statute. The new law promised to comprehensively protect Britons again discrimination on the grounds of race, sex, sexual orientation, disability, age and religious or non-religious conviction, all within a single, coherent framework.

Supporters of the act would say that it has delivered on that promise, and in an era when legal protections from discrimination are still - and perhaps ever more - needed. And there is no doubt that the act was honourable in its intentions. It can be seen as the legal expression of a long-awaited and overwhelmingly positive shift in British values from the 60s to today. It can also be seen as the most recent expression of a long and noble British tradition of political and legal egalitarianism, one of the traditions that has helped make Britain (not to mention its Commonwealth offshoots) a beacon of fairness and democracy.

The problem

The main problem is that the act has also proven to be a serious and ongoing threat to time-honoured freedoms, especially the freedom of speech. In recent years, think-tanker Maya Forstater and doctor David Mackereth were both dismissed from their jobs for their gender-critical views - views which employment tribunals initially found were not protected by the Equality Act as it is currently formulated.

The act is also over-zealous. Under it, employers can be liable for discrimination even in the absence of any intention to discriminate. Public sector organisations are required to actively ‘advance equality of opportunity’ under the ‘public sector equality duty.’ And even private sector employers are required to carry out costly and time-consuming reporting of any differences in pay between male and female employees.

This brings us to the burdens that the act imposes on businesses, the engine of the any economy. According to a report published this year by Policy Exchange, the UK has 60% more workers in HR than the US. Some amount of this is almost certainly a consequence - whether intended or not - of the Equality Act.

Reform, or reform?

In mid-February this year, at the unveiling of Reform’s frontbench team, Suella Braverman announced that a Reform government would repeal the Equality Act. At the same event, Robert Jenrick echoed her comments, calling aspects of the act ‘not sensible.’

But both of these senior Reformers also wanted to keep some of the protections in the act. Braverman apparently made clear that ‘she did not want to get rid of all employment protections’, while Jenrick reassured a journalist that ‘we want to see’ important workplace rights ‘protected and handed on to future generations.’

Doing away with the Equality Act and all of its constituent parts completely would constitute a watershed moment for British society. As the Trades Union Congress pointed out soon after Braverman’s announcement, it would effectively make it legal for an employer not to hire you solely because of your sex. Or for a university to turn you away because of your sexual orientation. Or for a pub to refuse you service because of your ethnicity.

In many ways, the series of statutes and regulations that were consolidated in the 2010 Equality Act was Britain’s gradualist answer to the US’s 1964 Civil Rights Act, which incorporated most of the changes that had been demanded by the civil rights movement into one enormous bill.

Do we really want to go back to the pre-civil rights era in Britain?

There is a libertarian argument, of course, that businesses should be able to hire, fire, and serve whoever they want, and for whatever reason. And those who want to repeal the Equality Act completely probably suspect that there wouldn’t be many retailers in today’s Britain (in contrast to 1950s Britain) who would be looking to turn away paying customers because of their skin colour or sexuality.

Most critics of the act, though, aren’t motivated by a burning desire to restore to shopkeepers a right to be racist. What they tend to complain about, rather, is the act’s occasional over-zealousness. This includes Suella Braverman, who is keen to get rid of the ‘pernicious, divisive notion of protected characteristics,’ and Robert Jenrick, whose main complaint about the act seems to be the ‘public sector equality duty’ that it imposes.

Repealing the act completely and replacing it with something different, then, might itself not be very sensible. Easier, and probably better, would be simply to amend the existing act in ways that do away with its more over-zealous aspects while leaving the core anti-discrimination law in force.

Braverman and Jenrick’s complaints

In response to Braverman’s complaints about the ‘notion of protected characteristics,’ my understanding is that the characteristics listed in the 2010 Equality Act are ‘protected’ only by the act itself, not in any more general or metaphysical sense. They are ‘protected’ only in the sense that it’s illegal to discriminate against anyone on the basis of these characteristics (race, sex, etc.)

Strictly, it’s citizens that are being protected from discrimination on the basis of these characteristics. It’s not the characteristics themselves that need protecting. If this is confusing, it might be worth replacing the term, perhaps with more neutral references to ‘the listed’ or ‘enumerated’ characteristics.’

When Robert Jenrick criticizes the public sector equality duty imposed in Section 149, he tends to tell a story about recent internships at GCHQ and the Bank of England that were only open to ethnic minorities, thus excluding working-class white youths in his constituency.

As critics of Jenrick have pointed out, the 2010 Equality Act itself includes a provision barring ‘positive discrimination,’ or preferring a candidate for a job solely because of their race or sex (or any other of the characteristics enumerated in the act). The only exception is in a genuine tie between two candidates, when an employer can use a candidate’s race or sex (vel sim.) as a tie-breaker - if and only if they can also prove that the candidates were equal in every other way and that the relevant characteristic is under-represented in their workforce.

Jenrick is right, though, that the 2010 Equality Act also includes provisions that not only allow, but require public organizations to take measures that stop just short of the boundaries of positive discrimination - and that sometimes arguably stray beyond them.

The public sector equality duty

If you haven’t yet had a look at Section 149 of the Equality Act (and I will forgive you if you haven’t), it’s worth just skimming it to get a sense of quite how far it goes. This part of the act doesn’t just bar public bodies from discriminating against people; it imposes a whole series of duties on them. Are these duties at least well-grounded, proportionate, and reasonably easy to fulfil?

No they are not. Public organizations, under this section of the act, have to have ‘due regard to the need’ to ‘eliminate discrimination, harassment, victimisation and any other conduct’ that the act prohibits; to ‘foster good relations between persons who share a relevant protected characteristic and persons who do not share it’ and to ‘advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.’

Having ‘due regard’ to that last ‘need’ also imposes further obligations on organizations to ‘remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic,’ to ‘take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it’; and ‘to encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.’

It’s that last clause that can push organizations to the brink of ‘positive discrimination.’ Together, that is, with Section 158, which seems designed to reassure organizations that, though they cannot engage in ‘positive discrimination,’ there is nothing wrong with ‘enabling or encouraging’ people with perceived disadvantage to overcome that disadvantage or to 'participate’ more.

That might seem innocuous, but the government’s explanatory notes to the act and subsequent legal judgments have established that ‘enabling or encouraging’ more ‘participation’ for groups thought to be under-represented is consistent with training programmes that target particular groups - and that exclude other groups. And that apparently includes internships. Which brings us back to Jenrick’s white working class youths who were excluded from an internship programme - lawfully, it would seem, thanks, as he says, to the Equality Act.

Even besides the way it seems tailor-made to bring public bodies to the brink of ‘affirmative action,’ as well as the fillip it has doubtless given to HR departments, the public sector equality duty simply goes too far.

Public bodies are busy places - and when they are not, they should be. They are supposed to be using a minimum amount of taxpayers’ money to deliver quality healthcare, or safer neighbourhoods, or secure borders. Why should we be giving them the additional burden of ‘fostering good relations’ among staff of different ethnicities?

Of course, staff of different ethnicities (or sexes, or sexualities) need to get on to the point that they can do their work effectively. (We will leave aside here the apparent assumption that people of different ethnicities won’t be able to get on to that extent in 21st century London.) Beyond that, though, why should we care how well everyone is getting on? These are supposed to be workplaces, not dinner parties. In any case, it is one thing to ban fights in the pub, another thing entirely to give publicans an obligation to make sure everyone is getting on swimmingly.

There is a kind of grim, fixed-grin, Are We Having Fun Yet? totalitarianism here. As often with totalitarianism, it goes hand in hand with a vague, adolescent utopianism. Public organizations, in case you missed this, have an obligation to have at least ‘due regard’ to the ‘need’ to eliminate all forms of oppression (‘discrimination, harassment, victimisation’ etc.) in their midst.

To eliminate something (just to be clear) means to annihilate it, to reduce it to zero. Mere decimation won’t do. This presumably means that even one not particular significant episode of discrimination must be taken as a cue for more reflection, more effort, and more compulsory workshops - all at the taxpayer’s expense.

There are plenty of things in the Equality Act that we will want to preserve. There are also surgical changes to particular sections that will need to be made (more on some of those below). But it is very hard to see how the meddlesome, burdensome, and staggeringly impractical obligations imposed by the public sector equality duty can possibly be saved. It needs to be repealed in toto.

Unworthy of respect?

In September 2018, Maya Forstater, a tax expert, made a series of posts on Twitter expressing her view that biological sex is immutable. By December of 2018, the Center for Global Development, a think tank, had decided not to renew Forstater’s contract. When Forstater challenged her dismissal at an employment tribunal on the grounds that her (non-religious) beliefs about sex were protected under the Equality Act, the judge (one James Tayler) found against her, upholding her dismissal.

In June 2018, David Mackereth, an experienced doctor, lost his position as a disability claims assessor for the Department of Work and Pensions after refusing to use trans patients’ preferred pronouns. When he challenged the decision at an employment tribunal on the grounds that his (partly religious, partly scientific) beliefs about sex were protected under the Equality Act, the judge found against him too, upholding his dismissal.

Admittedly, the decision in Forstater’s case was eventually overturned by the Employment Appeal Tribunal (EAT) in June 2021, and she was eventually awarded £106,400 in compensation. And the EAT did eventually overturn the finding that David Mackereth’s views were not protected by the Equality Act, although it also upheld his dismissal on the grounds that while he had a right to hold gender-critical beliefs, he did not have the right to manifest them in the precise context that he did. (The distinction between holding and manifesting a view comes entirely from the European Convention on Human Rights, whose effect on free speech law in the UK deserves a whole separate post on its own.)

All the same, both Forstater and Mackereth lost their positions for expressing their views. And both were told, by the tribunals that considered their initial challenges to their dismissals, that their views were ‘incompatible with human dignity’ and ‘unworthy of respect in a democratic society.’ Views which are held by the majority of Britons.

How did we get here?

We got here because of the vague way that the 2010 Equality Act defines ‘belief’ - and because of the way the European Convention on Human Rights (ECHR) was brought in to help make the definition tighter.

In fact, Section 10 of the Equality Act doesn’t so much define ‘belief’ vaguely as decline to define it at all. ‘Belief,’ it states, unhelpfully, ‘means any religious or philosophical belief.’ But that seems impracticably broad.

It was a specific case - Grainger plc v Nicholson - that was decided the same year as the Equality Act was passed (2010) that tightened the definition. In his judgment, Mr. Justice Burton introduced five criteria (‘the Grainger criteria’) for a belief to be protected:

1. The belief must be genuinely held.

2. It must be a belief, not [simply] an opinion or viewpoint based on the present state of information available.

3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.

4. It must attain a certain level of cogency, seriousness, cohesion, and importance.

5. It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

It was that fifth criterion which was used to deny Forstater and Mackereth’s gender-critical views of the protection of the Equality Act in the initial employment tribunal rulings.

Protecting free speech

Happily for free speech, Mr. Justice Choudhury at the EAT eventually found (in his decision on the Forstater case) that beliefs should be protected unless they amount to ‘totalitarianism,’ including Nazism, or to ‘espousing violence and hatred in its gravest forms.’ He stated clearly that free speech protections must apply even to views that may be ‘offensive, shocking or even disturbing to others.’ And he later reiterated that beliefs which ‘may well be profoundly offensive and even distressing to many others…must be tolerated in a pluralist society.’

For some, the precedent set by Choudhury in his ruling will be enough to protect controversial views in the future. The language of the Equality Act, though, is still so vague that employers are likely to carry on dismissing employees whose views they dislike. Workers who have been discarded for their views may well be able challenge such decisions in the courts, but legal challenges can take their toll in terms of time and money.

Rather than relying on the Forstater precedent, it would therefore be better (as has previously been suggested) to insert clearer protections for free speech in the Equality Act. This would also be desirable in that the act as it stands includes very little mention of free speech. As ancient Greek terms like isegoria remind us, though, free speech is also equal speech. My right to speak my mind whatever more powerful individuals may think is an expression of my equality as a citizen as much as it is an expression of my freedom.

The best way to emend this deficiency in the act would be to insert a new section which would explicitly bar employers from dismissing workers on the basis of lawful expression. This ‘expression’ could be defined to encompass all ‘manifestations’ of beliefs in both speech and action that stop short either of direct incitement to violence or of harassment. The new section could also bar employees from restricting workers’ lawful expression outside of working hours in employment contracts or codes of conduct.

Should equal labour equal equal pay?

One of the ‘important pieces of legislation’ that Robert Jenrick has described as protecting workplace rights (rights that he wants to ensure are ‘handed on to future generations’) is the 1970 Equal Pay Act, now of course part of the omnibus Equality Act.

The 1970 Equal Pay Act can’t be blamed for everything that’s in the Equality Act. A lot of that was forced on the UK in 1982 by another EU body, the European Court of Justice. But I think it’s arguable that the equal pay legislation as it stands is one of the more misconceived and burdensome parts of the act - one that will have to be substantially restricted if not wholly excised.

The problem with ‘equal pay’ legislation of this sort is that it revives an old Marxist theory that economist and social scientists have largely left behind. This theory, the ‘Labour theory of value,’ holds that work is or should be priced according to the time and effort that people put into it.

This sounds nice, and we might well want to reward the time and effort of people we know in non-monetary ways (by praising them, for example, or giving them a present). But it isn’t the way that prices work. Prices reflect supply and demand.

Of course, there have been many points in history when people have decided that they don’t like the prices assigned by the markets, and want to set their own prices. This has usually had negative, if not disastrous, results. This is partly because it’s more difficult than you might think to force people to pay prices they don’t want to pay, and partly because even setting the ‘right’ price usually involves establishing some committee drawn from a self-proclaimed moral and technical elite to tell everyone what the prices should be.

This brings us back to the 2010 Equality Act, which speaks explicitly of work ‘of equal value.’ That idea can actually be traced back to the founding charter of the European Economic Community, the 1957 Treaty of Rome, which demanded ‘equal pay for equal work’ - a demand which led the European Court of Justice to intervene in UK equality law in 1982.

Obviously (as a Nobel-winning economist pointed out long ago) if work is genuinely of equal value - that is, if everyone, not just technocrats, value it as such - then it should command an equal price, and no intervention is necessary. If work of equal value somehow remains significantly less remunerated - as women’s work is often said to be - than you’d expect companies to want to hire a workforce consisting exclusively of women. Because, of course, the same output at less expense is a pretty unbeatable business proposition.

That the current equal pay legislation depends on a labour theory of value seems to be confirmed by how it is currently implemented. This involves costly and time-consuming job evaluation schemes, which tend to look at things like the skills required by a position, the responsibility it involves, and also the effort it requires.

Many of these sound like a reasonable way to evaluate a job, but people aren’t perfect when it comes to guessing how much others will value work of particular sorts - and by ‘others’ I mean both potential customers and potential employees.

In 2024, for example, a tribunal decided that the high street clothing chain Next had underpaid its mostly female retail workers compared to its mostly male warehouse workers. That’s despite the fact that the company had offered retail staff a chance to transfer into warehouse roles with very little take-up. One woman even admitted that she wasn’t willing to do a dustier, more physical, and less ‘people-facing’ warehouse job without higher pay. All of which suggests that the warehouse workers’ work was better remunerated for a reason - because fewer people were willing to do it.

As this example reminds us, one of the more bizarre features of the current pay equity regime is that it often involves comparisons having to be made between very different jobs. This was not so much a feature of the 1970 Equal Pay Act, which focused on ‘like’ positions - the same, or very similar, jobs.

Section 65 of the Equality Act preserves some of the ‘like’ language (in clause 2), and perhaps that can stay. The ‘equal value’ elements in Section 65 (which encourage comparisons between unlike jobs) should be repealed, though. So should Section 78, which requires employers to carry out costly and time-consuming reporting of any differences in pay between male and female employees.

Reform, not repeal

There are a few other things that may need changing. Section 13, for example, currently makes organizations liable to discrimination even when they don’t have any intention to discriminate. This erodes a key principle of natural justice, that we shouldn’t punish individuals without some evidence of mens rea - the ‘guilty mind’ constituted by an intention to do wrong. As Paul Yowell has argued, Section 13.1 could be supplemented with sub-clauses that make clear that A discriminates against B because of a protected characteristic only if A consciously intends to do so.

Others might want to suggest other changes in the comments. But this essay is probably more than long enough already.

Since I have been quite critical of certain section of the 2010 Equality Act, I should reiterate in closing that there are plenty of good things in it - things we will want to keep in order to lessen the risk of reverting to a pre-civil rights era of unrestrained prejudice. The liberal core of the legislation should stay in force, including the list of characteristics that should not be used to discriminate (Section 4); the ban on not serving people because of any of these characteristics (Section 29); and the protection against discrimination in hiring and employment (Section 39).

I should also reiterate that there is nothing intrinsically wrong with equality legislation, or with this equality legislation. On the contrary: equality is one of the fundamental values of both democracy and liberalism, and one of the grand traditions and motivating ideals in British and broader Anglosphere politics.

That much was already clear in the great series of equality acts that has helped make our societies more equal and more free for everyone since the 1950s. It made perfect sense for Gordon Brown to want to consolidate these acts into a single piece of legislation, and it was fitting that Brown, who embodies much that is admirable in the British egalitarian tradition, was the one to do it.

But the act as it currently exists goes too far. It has done damage to another of the fundamental values of our liberal democracies: freedom (and especially the freedom of speech). It oversteps the bounds of appropriate regulation, requiring organisations to attempt to bring into being a vague and utopian vision. And it imposes a severe and continuing burden on public organizations and private businesses alike.

It therefore does need to be reformed. And I think the changes I’ve suggested here (as well as similar changes suggested by others) should be enough to keep a reform-minded (if not necessarily a Reform-led) government productively busy.

Over the past few years, a cartoon has been doing the rounds on social media. It depicts the philosopher Karl Popper laying out his ‘paradox of tolerance.’ The cartoon is based on a long endnote in Popper’s great work The Open Society and its Enemies (which was written in New Zealand), and on this paragraph in particular:

Less well known is the paradox of tolerance: unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be most unwise. But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant. We should claim that any movement preaching intolerance places itself outside the law, and we should consider incitement to intolerance and persecution as criminal, in the same way as we should consider incitement to murder, or to kidnapping, or to the revival of the slave trade, as criminal (OS I, 265).

For the most part the text of the cartoon simply paraphrases sections of this paragraph (Popper’s ‘we should claim that any movement preaching intolerance places itself outside the law’ becomes ‘any movement that preaches intolerance and persecution must be outside the law,’ for example). But it also leaves out two sentences (running from ‘In this formulation’ to ‘fists or pistols’), which suggest that the intolerant should be suppressed only when they resort to violence rather than argument. Though this has been widely pointed out, Popper continues to be cited (including in this country) in support of the view that we should clamp down on intolerance even when it stops short of violence.

Popper’s cartoon has taken on something of a life of its own on the internet, with counter-cartoons replacing Nazis with Islamists, anti-capitalists, or even Chinese communists. But the many blog posts and think-pieces that purport to show what Popper really thought about tolerance and intolerance rarely look beyond the paragraph we’ve quoted above, and almost never venture beyond the first volume of The Open Society and its Enemies.

In this piece, we draw on a wider range of Popper’s writings, including personal letters, to shed more light on what the philosopher’s views on toleration actually were. As we shall see, Popper’s views on this topic hardly constitute a fully thought-out theory. Where exactly we should set the limits of toleration in speech and action is still very much a question that citizens of contemporary societies will have to answer for themselves. At the same time, Popper’s thinking about tolerance does offer some guidance about where we should draw the lines around toleration.

What did Popper actually say about tolerance?

Much of what Popper had to say about tolerance was written simply in support of toleration in general, as a feature of the ‘open societies’ he wished to promote. On the most general level, Popper saw tolerance as a necessary condition for the kind of pluralism that any liberal society would have to accommodate. As he put it in a 1945 letter to the Australian neurophysiologist John Eccles, ‘We must build a world in which different creeds, different religious and different moral creeds, must be able to live together in peace’; to this end, ‘a common denominator’ was needed ‘such as tolerance of everybody who is prepared to tolerate’. ‘Democracy will tolerate everyone except the intolerant,’ the University of Canterbury student magazine CANTA reported ‘Dr. Popper’ as saying, as ‘the right to be different is of fundamental importance.’ By the same token, open societies should ‘avoid imposing any particular social philosophy on people’ and ‘give people a chance to choose’ between different values.

Popper sometimes saw tolerance as something that flowed naturally from a recognition of our fallibility as human beings. Popper was fond of quoting the first line of Voltaire’s entry on tolerance in his Philosophical Dictionary (1764), which runs (to use Popper’s own translation), ‘What is tolerance? It is a necessary consequence of our humanity. We are all fallible, and prone to error. Let us then pardon each other’s follies’ (CR, 8; ATOS, 314).

Unsurprisingly, Popper often linked this general human quality of fallibility with his more specific theory of fallibilism, which emphasized the uncertainty of even our best knowledge and the importance of being open to different views – while also leaving all views open to criticism. Rationalism, he writes in the second volume of The Open Society, ‘is bound up with the idea that everybody is liable to make mistakes’ and therefore ‘with the idea that the other fellow has a right to be heard’; it thus implies ‘the recognition of the claim to tolerance, at least of all those who are not intolerant themselves’ (OS II, 238). A more concise formulation of this view can be found in a 1973 letter: ‘This fallibilism’ (that is, scientific or rational fallibilism) ‘has important moral consequences; tolerance is one of them’.

If toleration, for Popper, goes hand in hand with a scientific mindset, it is also an enemy to (and perhaps an antidote for) any notion that one’s ideas are specially favoured, either by the ‘historical inevitability’ of a particular worldview; or, indeed, by divine sanction. Popper warned against simply dismissing certain views as ‘outdated,’ a term that, as he told the humanist Paul Kurtz in a 1973 letter, he viewed as itself outdated. And in a 1981 letter to a Professor Stubbins he condemned Luther’s 1525 On the Bondage of the Will as ‘essentially directed against toleration, against non-violence and peace, and for the implied thesis that he is God’s instrument – that his words are The Word of God.’

This kind of millenarian certainty aside, Popper saw religious views as entitled to a certain level of toleration. ‘We must be tolerant,’ as he put it in a 1971 letter to the French biochemist Jacques Monod, ‘even towards what we regard as a basically dangerous lie.’ ‘And we should be seriously tolerant,’ he added in a 1980 letter to Kurtz, ‘of anyone who honestly expresses religious views.’ Indeed, he had written to Kurtz in his earlier letter, ‘we should not only declare but show our own tolerance towards tolerant religion and tolerant ideologies.’

Popper stressed that critical rationalists in particular should try to practice this kind of religious tolerance. He agreed with Paul Kurtz and Edwin H. Wilson’s second Humanist Manifesto (1973), he wrote them, that ‘we must not become dogmatic and churchlike ourselves.’ In a 1946 essay he wrote that, ‘a tolerant society must tolerate…irrationalism, as long as it is not an aggressively intolerant brand of irrationalism’ (ATOS, 136). And in another essay written two years later, Popper reasoned that while a ‘strongly emotional intolerance’ seemed to be ‘characteristic of all traditionalism,’ what critical rationalists should seek to do was to ‘replace the intolerance of the traditionalists with a new tradition – the tradition of tolerance’ (CR, 132).

Can democracy tolerate the intolerant?

What did Popper mean by ‘democracy will tolerate everyone except the intolerant’ and other variations on the ‘paradox of tolerance’? One clue is provided in a sentence we’ve just quoted, where Popper states that we should tolerate all irrationalism that isn’t ‘aggressively intolerant’ (our emphasis). In a 1963 lecture on ‘The Open Society and the Democratic State,’ Popper spoke about people ‘who preach intolerance and who, at the same time, accuse the tolerant of hypocrisy, because they’ – the tolerant – ‘are not prepared to tolerate every aggressive form of intolerance’ (ATOS, 240). Note the importance of aggression, something that Popper underlined in his 1973 letter to Kurtz: ‘we must not behave aggressively towards views and towards people who have other views than we have,’ he wrote, ‘provided that they are not aggressive.’

It’s not completely clear what Popper means by ‘aggression’ here – does the ‘they’ in that last phrase refer to people or to views? – but the fact Popper says that we must not behave aggressively makes it likely that what he had in mind wasn’t simply an aggressive argument or tone of voice, but aggressive actions – that is, something close to, or even identical with, coercion or violence.

Other evidence points towards the conclusion that Popper’s main worry was coercive violence. Popper often said something to the effect that we should recognize ‘the claim to tolerance, at least of all those who are not intolerant themselves’. There’s an appeal to reciprocity here, an appeal that Popper occasionally made more explicit. ‘Voltaire saw very clearly,’ Popper wrote in his 1981 essay ‘On Toleration,’ that ‘toleration must be mutual: that it is based on reciprocity’ (ATOS, 314). In his 1963 lecture ‘The Open Society and the Democratic State,’ Popper reiterated that ‘there can be no obligation upon the tolerant to tolerate the intolerant,’ and added that he had in mind ‘those who do not reciprocate’ (ATOS, 239).

But what did not reciprocating tolerance look like exactly? In ‘On Toleration,’ Popper spoke of minorities ‘who are unwilling to reciprocate the tolerance offered to them by the majority: minorities who accept a principle of intolerance; who accept a theory of the necessity of violence and who may even act violently.’ Later in the same essay he wrote that ‘toleration can only exist on a basis of mutuality,’ and that ‘our duty to tolerate such a minority ends when the minority begins to act violently’ (ATOS, 315). In ‘The Open Society and the Democratic State,’ he argued that ‘though we should guarantee freedom of opinion to all those who are prepared to reciprocate, we must not include in this guarantee those who seriously propagate intolerance or violence’ – and here ‘or violence’ seems less to present an alternative than to explain what he means by ‘intolerance.’ Something similar seems to be going on in ‘On Toleration’ when he speaks of ‘intolerant ideologies: ideologies that entail the principle that all who dissent from them must be suppressed by force’ (ATOS, 313).

In ‘On Toleration’ Popper does also write that ‘our exaggerated fear that we who are for toleration might ourselves become intolerant has led to the mistaken and dangerous attitude that we must tolerate everything, perhaps even acts of violence; but certainly anything that falls short of an act of violence’ (ATOS, 314). Does this imply some skepticism about the idea that everything short of violence should be tolerated?

In our view, Popper probably means that movements that make very credible threats of violence might also be criminalized, even if they have not yet committed ‘an act of violence’ (and here we might recall of his mention, in ‘On Toleration,’ of minorities ‘who may even act violently,’ and his warning that our duty to tolerance ends ‘when the minority begins to actviolently’ – our emphasis; ATOS, 315). Later on in ‘On Toleration,’ Popper says that ‘we need not tolerate even the threat of intolerance; and we must not tolerate it if the threat is getting serious’ (ATOS, 315) – by which he seems to mean intolerance that has become violent, or clearly threatens to.

This focus on violence as the key criterion for reciprocal intolerance on the part of the state is something that Popper reiterates on a number of occasions, especially in his paper on the open society and the democratic state. He reiterates the point with some lively examples, starting with a story about tigers. ‘I once read a touching story of a community which lived in the Indian jungle, and which disappeared because of its belief in the holiness of life, including that of tigers,’ he told the essay’s original audience in Delhi. ‘Unfortunately the tigers did not reciprocate.’

Popper’s other example in this lecture was a more serious one: ‘the German republic before 1933 – the so-called Weimar Republic – tolerated Hitler; but Hitler did not reciprocate’ (ATOS, 239). If the cartoon we began this piece with gets one thing right, it was that Popper’s thinking about intolerance was profoundly marked by his experience as someone of Jewish origin (although raised as Lutheran) who escaped the looming shadow of Hitler in 1937.

At the same time, Popper’s Open Society would be an excoriation of – and a warning against – both the great totalitarianisms of the twentieth century: Fascism and Communism. In a crucial passage in ‘On Toleration,’ Popper described the impact of both these movements on his thinking from his brief period as a young socialist on:

I shall never forget how often I heard it asserted, especially in 1918 and 1919, that ‘capitalism’ claims more victims of its violence on every single day than the whole social revolution will ever claim. And I shall never forget that I actually believed this myth for a number or weeks before I was 17 years old, and before I had seen some of the victims of the social revolution. This was an experience which made me for ever highly critical of all such claims, and of all excuses for using violence, from whatever side. I changed my mind somewhat when Goering, after the Nazis had come to power by a majority vote, declared that he would personally back any stormtrooper who was using violence against anybody even if he made a little mistake and got the wrong person. Then came the famous ‘Night of the Long Knives’ — which is what the Nazis called it in advance. This was the night when they used their long knives and their pistols and their rifles…After these events in Germany, I gave up my absolute commitment to non-violence: I realized that there was a limit to toleration (ATOS, 316).

Violence matters

Note again the focus on violence, with the Nazis’ ‘long knives and pistols and rifles’ here expanding on the ‘fists or pistols’ of the endnote in The Open Society. It is violence that finally made the young Popper recognize that there are limits to tolerance: not hurtful speech, not the rabid antisemitism of 1930s Vienna, and not even the overthrow of German (and Austrian) democracy.

And in fact, even when Popper’s focus was primarily on democracy, it is still arguably violence that is, in the final analysis, his real concern. Earlier in the same essay, Popper talked about ‘a party that conspires – perhaps partly openly, or quite secretly – to abolish democracy’; ‘to such a party,’ he says, ‘we must not submit, even if it has gained a majority.’ As in the passage above, the reference is to the German elections of July 1932, in which the National Socialists had won a simple majority; but here Popper makes clear that his over-riding fear is that ‘the abolition of democracy will lead…to arbitrary action, and to violence’ (ATOS, 315).

Such fears accord with Popper’s theory of democracy, according to which democracy is simply the type of government ‘of which we can get rid without bloodshed’ (OS II, 124). The main point of democracy, in other words, is simply to enable us to change our government without violence. Similarly, the main point of toleration for Popper seems to have been to allow individuals to pursue their own interests and live their own lives without coercive interference.

But if practising toleration is a reciprocal affair (we should tolerate others who are willing to tolerate us in turn), so is policing its boundaries. This is why Popper, in the crucial autobiographical passage quoted above, tells us, in the same breath, that the Nazis’ violence led him both to give up his ‘absolute commitment to non-violence’ and to realize that there was ‘a limit to toleration.’ To spell out the implications of this in full, what Popper is saying is that a liberal democratic state is justified in using coercion against those who threaten it, or its citizens, with violence.

In a 2019 piece in The Dominion Post, journalist Will Harvie revisited the crucial footnote in The Open Society that we began with to argue that Popper wasn’t, in fact, concerned solely with violence – with those that resorted to ‘fists or pistols’ in response to arguments. Harvie emphasized the endnote’s final sentence, in which Popper says that ‘we should consider incitement to intolerance and persecution as criminal, in the same way as we should consider incitement to murder, or to kidnapping, or to the revival of the slave trade, as criminal.’ Harvie concludes that ‘it’s not just violence’ that Popper would have banned; ‘it’s incitement.’

Harvie is clearly correct that Popper advocates criminalizing incitement to violence. But we should note that the three types of violence Popper mentions in this connection – murder, kidnapping, and slavery – are rather egregious ones. And we should also notice, once again, what Popper stops short of recommending. He doesn’t recommend a ban on speech that is grossly offensive, ‘harmful,’ or even that might constitute ‘group libel’ (the New Zealand legal philosopher Jeremy Waldron’s conception of ‘hate speech’).

In fact, everything we know suggests Popper would have been strongly against this narrower view of the limits of toleration. He himself, remember, privately conceded to more zealous rationalists that religion might well be ‘a dangerous lie,’ and yet he repeatedly argued not only that we should tolerate religious views, but even that we should accord them a certain measure of respect. This makes it extremely unlikely that he would have endorsed the idea that certain opinions should be censored or ‘de-platformed’ for causing ‘hurt,’ ‘dismay’ or ‘harm’ (to use some terms that have been in frequent use in recent debates about free speech in this country).

In fact, Popper wrote in a 1980 letter to Kurtz that even ‘those aspects of religions and other institutions, which openly subscribe to intolerance, are, perhaps, best fought by a respect for and tolerance of those aspects, which are not intolerant, even though we may not agree with their views or sympathise with their practices’. In other words, whenever possible, we should try to counter even clearly intolerant views by tolerance and reason. Popper tried to make this clear in the endnote on the ‘paradox of tolerance’ that we began with, when he cautioned that ‘in this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be most unwise.’ In ‘On Toleration,’ Popper reiterated the point, writing that as long as intolerant groups ‘discuss and publish their theories as rational proposals, we should let them do so freely,’ and that, when it comes to people who ‘try to justify the use of violence’ we should simply ‘refute’ their theories (ATOS, 315).

Besides setting a high bar for what counts as ‘intolerance,’ (essentially violence or direct incitement to violence), Popper also stressed that we should resort to coercive suppression of intolerant movements only as last resort. ‘We should claim the right to suppress them if necessary even by force’ (Popper’s emphasis) he says in the endnote on tolerance, ‘for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols.’ This is what takes us to the famous declaration that ‘we should therefore claim, in the name of tolerance, the right not to tolerate the intolerant.’

Reasoned deliberation when possible

In a 1978 letter to the Routledge editor Rosalind Hall, who was requesting permission to re-print some of the paragraph we began with, Popper insisted that he would ‘permit this quotation only if the whole paragraph is quoted, including the words: “Less well known is the paradox of tolerance.”’ The reason, Popper said, was that ‘I want it to be clear that this is proposed by me only incidentally and not as my main statement about tolerance.’

The best candidate for Popper’s ‘main statement’ on tolerance is undoubtedly his 1981 essay ‘On Toleration’; but though we have quoted liberally from it here, the essay soon strays from its purported topic. (A lecture on ‘Toleration and Intellectual Responsibility,’ first given in the same year, covers very similar ground: ISBW, 188-203). It is perhaps not surprising that his single, suggestive note on ‘the paradox of tolerance’ in The Open Society has attracted so much attention, debate, and attempts at co-optation. By surveying a broader range of Popper’s writings, we hope to have shed more light both on that all-important endnote and on Popper’s views about toleration more generally.

Popper thought the limits of tolerance lay where arguments give way to violence (that is, to ‘fists or pistols’). In cases where violence was offered, directly incited, or promised, Popper saw coercion by the liberal democratic state as a justified sort of reciprocity. State coercion, though, was something that should be considered only as a last resort, when violence was obvious or imminent; in all other cases, even when an ideology might strike us as intolerant, we should try to counter it with rational criticism and discussion.

Reasoned deliberation is, in the final analysis, the antithesis of violence. As Popper put it in the second volume of The Open Society, ‘one does not kill a man when one adopts the attitude of first listening to his arguments’ (OS II, 238). This makes toleration key in the maintenance of modern, pluralistic societies, which will inevitably contain a variety of different beliefs and perspectives, some of them fervently opposed to each other. Toleration follows, besides, from a recognition that we are all fallible: our own chosen beliefs and enthusiasms may, after all, turn out to be wrong, so it would be wrong to try to impose them on others.

Popper would not have countenanced limiting the expression of different viewpoints on the ground of offence or even of ‘harm.’ He would almost certainly have argued strongly against the recent proposals by Jacinda Ardern’s Labour government to outlaw ‘incitement of hatred and discrimination’ against a series of different groups (including groups defined by religious beliefs, ethical beliefs, and political views).

But Popper’s basic position – that we should tolerate all views and movements that stop short of violence or direct incitement to violence – is not itself a party-political one. The idea that we should not tolerate violence applies equally to any movement that exchanges words for blows. By the same token, Popper’s recommendation that we should tolerate all ideas and life-choices that fall short of violence challenges us to be tolerant of movements across the whole broad spectrum of modern political discourse – if they eschew violence.

In the final analysis, Popper’s proposal that we should tolerate each other up to the point of violence doesn’t constitute an exhaustive account of where we might have to set limits on speech or expression. As the Victoria University legal scholar Eddie Clarke has noted, in a few situations our current laws do enforce some penalties against speech even in the absence of violence (in cases of perjury, say).

Nevertheless, Popper’s writings on toleration, including his famous ‘paradox of toleration,’ remind us that coercion is as good a place as any to set a hard limit for toleration. Setting the bar as high as coercion leaves citizens space to develop their own ideas and life-paths freely. We should therefore approach any limits to expression below this high bar with some scepticism.

This emphasis on violence as the line we must not cross puts Popper firmly in the main stream of liberal political thought running through Max Weber (with his emphasis on the state as the possessor of a monopoly on force) as well as John Stuart Mill (who similarly insisted that citizens should be free to develop their ideas uncoerced by others). This tradition of thinking about tolerance is one that has played a large part in the success and development of liberal democracy as a governmental system and a way of life; and it is one that we in today’s New Zealand might take more account of as we continue to debate the nature and limits of toleration.

ATOS = J. Shearmur and P.N. Turner (eds.), After the Open Society: Selected Social and Political Writings (London: Routledge, 2008)

CR = K.R. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge (London: Routledge, 1963)

ISBW = K.R. Popper, In Search of a Better World: Lectures and Essays from Thirty Years (London: Routledge, 1984)

OS = K.R. Popper, The Open Society and its Enemies (2 vols., London: Routledge, 1945)

Unpublished material derives almost entirely from the Karl Popper Archive at the University of Klagenfurt, Austria. It is used with the full permission of the University of Klagenfurt/the Karl Popper Archives. The letter to Eccles comes from the Eccles archive in the Institut für Geschichte, Theorie und Ethik der Medizin, Heinrich-Heine-Universität, Düsseldorf. All rights reserved.

‘The University will not take a position on public matters and issues that do not pertain to the mission and purpose of the University.’ So states Victoria University of Wellington’s Academic Freedom and Freedom of Expression Policy, which was adopted earlier this year.

With these words, Victoria belatedly joined a number of respected US institutions – most notably Harvard – which publicly recommitted themselves to institutional neutrality last year.

Institutional neutrality is the principle that universities as institutions (though not individual academics) should be politically neutral. It makes even more sense for taxpayer-funded institutions, like all of New Zealand’s universities, than it does for private colleges like Harvard.

So why have Victoria academics asked their university to take up a position that would contradict not only this widely recognised principle, but also their own clearly stated policy?

VUW’s Academic Board recently voted to endorse ‘boycott, divestment and other non-violent’ measures against Israel, according to a press release by Student Justice for Palestine (Pōneke), who tabled the motion.

The motion passed ‘with 55 votes in favour and one abstention,’ the press release also noted, and ‘directs the University to sever ties and not build future ones with’ Israeli institutions.

Strictly speaking, institutional neutrality has not yet been violated. The decision about whether to do so – by adopting boycotting and divestment as an official university position – now rests in the hands of VUW’s Te Hiwa (formerly the Senior Leadership Team).

Whatever they do, though, the vote shows that there are clearly a good number of academics at VUW who want their university to contravene a principle it publicly committed to only a few months ago.

It also shows that the institutional neutrality statements that have recently been adopted by other New Zealand universities (Otago, for instance) are going to be severely tested in the years ahead.

This is important, as the current government is placing a great deal of faith in universities committing to institutional neutrality on paper. Its package of amendments to the Education and Training Act, which is currently going through Parliament, would simply require universities to include a commitment not to ‘take positions on matters that do not directly concern their role or function’ in their freedom of expression statements.

What if the universities renege on their commitments, though, or uphold the letter of their commitments but not their spirit? What happens then? The legislation, at least in its current form, has no answers.

Of course, there is nothing wrong with academics criticising or peacefully protesting the actions of the state of Israel. That is rightly protected by academic freedom.

A line would be crossed, though, if a university adopted a corporate position on a controversial political issue, as VUW’s Academic Board has apparently just urged it to do.

As the University of Chicago’s 1967 Kalven report put it, ‘the university is the home and sponsor of critics; it is not itself the critic.’ Taking up an institutional position risks chilling the speech of students and academics, who are, after all, the university’s employees.

It also raises questions among the public about what exactly their tax money is being used for. Is it funding politically neutral educational institutions that follow the evidence where it leads, hire on the basis of merit, and foster students of all political and religious persuasions? Or is their money instead being ploughed into political causes that happen to be favoured by the professoriate?

You might have hoped – and we did hope – that academics at VUW and other institutions would see the writing on the wall, and voluntarily dedicate themselves to upholding institutional neutrality and other principles that were once central to academic life.

You might also have hoped that when a group of student activists tabled a motion at Academic Board, VUW academics would have recognised this as a ‘teachable moment.’ They might have explained to the students why it is so important for universities as institutions to remain politically neutral. And why asking the university to take on a position on a political issue – any position on any political issue – would therefore be inappropriate.

That none of them did so is concerning. So is the fact that the motion to ask the university to violate institutional neutrality passed 55-0, with only one abstention.

None of this bodes well for the future of our universities. University leadership will have to hold firm and make sure their taxpayer-supported institutions remain the politically neutral entities we pay them to be. And the government will have to make sure its new bill incentivises them to do so.

Sometime in the first half of 2019, Ji Ruan, a senior lecturer in computer science at Auckland University of Technology, organised an event to commemorate the twentieth anniversary of the Tiananmen Square massacre.

He no doubt assumed that, in a free country like New Zealand, this would be no problem. And that, if any problems arose, he would have the full support of managers at his institution.

As it turned out, events proved him wrong on both counts. Not only did AUT cancel the event, but it did so at the behest of senior managers, including then Vice-Chancellor Derek McCormack. McCormack stepped in after an official at the Chinese consulate raised concerns about the event.

Ji’s experience was by no means unique. As we showed in our report, Unpopular Opinions: Academic Freedom in New Zealand, released last year, managers at our universities are frequently implicated in violations of academic freedom at our institutions.

Sometimes they even drive the violations themselves, as Massey University VC Jan Thomas did when she went out of her way to cancel a talk by Don Brash in August 2019.

In view of all this, you might have thought that the government would be making extra sure that university managers can’t get around its new academic freedom legislation. If you did think this, though, you’d be wrong.

That the government is introducing legislation on this topic at all (as part of their amendments to the Education and Training Act) is greatly to its credit.

But the new legislation won’t be worth the paper it’s written on if it’s not enforceable in crucial areas. In its current form, it’s not.

One key area where the legislation isn’t enforceable is the new complaints process that universities would have to establish.

In its current form, the legislation would require universities to set up ‘a complaints procedure relating to academic freedom and freedom of expression.’ It would also require universities to include details of any complaints in their annual reports.

That’s it.

So let’s imagine you’re a student at a New Zealand university. Let’s say you help organise a conference on gender-critical feminism, and it’s cancelled after a campaign by a few radical student activists.

Under the government’s new academic freedom legislation, you could now make a complaint to university managers.

How confident could you be that they would do the right thing and uphold their legal obligations to academic freedom?

We can get some idea of how likely that is by looking at what happened in November 2019, when a student at Massey University helped organise a conference called ‘Feminism 2020’ in collaboration with Speak Up for Women, a feminist organisation.

As with AUT’s cancellation of the Tiananmen Square event, Massey University managers didn’t just fail to uphold the speech rights of a member of their community on this occasion. They were actively involved in undermining them, with the event being cancelled after a group of student activists met with acting VC Giselle Byrnes.

It’s hard to say exactly what chance a complaint by the student who helped organise the event would have had with those same managers, but it probably wouldn’t have been too much higher than a snowball’s chance in Hell.

In our New Zealand Initiative submission to the select committee that scrutinised the legislation, we suggested setting up an independent review committee that people who were not satisfied with the internal complaints process could appeal to. We also suggested allowing complainants to apply to the High Court for judicial review of the decision.

Overkill? We didn’t think so, and still don’t.

The members of the select committee were under no obligation to adopt our recommendations, and from the commentary on the legislation they released last week, it looks like they haven’t.

Fair enough. But if an internal process is the only recourse for students and academics whose academic freedom has been violated, they will be forced to submit complaints to the very same set of people who violated their rights in the first place.

That makes very little sense, and leaves university managers to police themselves, a privilege they have abused in the past and will, in all probability, abuse again.

The new legislation has a lot of good ideas in it. Universities will be required to adopt freedom of expression statements. They will have to commit to not cancelling talks by visiting speakers on account of their ‘ideas or opinions.’

But bringing in legislation that lacks any real enforcement mechanisms won’t do much good.

Unfortunately, that is what the National-led government has apparently decided to do.

A while back now, we opened Oko, the staff newsletter at the university where both of us still have adjunct positions. One of the featured articles that week was ‘The Thing about Words’ by Bryony James, who (the article reminded us) was ‘Te Herenga Waka’s Provost, and member of Te Hiwa.’ (The latter, if you haven’t been keeping up, is the name that the university’s Senior Management Team adopted a couple of years ago.) 

As Provost, Prof. James holds one of the university’s most senior positions. That made it all the more troubling to see how weak a grasp she has on the concept of free speech, something universities are required to uphold in the Education and Training Act. 

Prof. James’ piece is a series of reflections on Victoria’s panel discussion on free speech, which was held last year. ‘This event,’ she correctly says, ‘stirred strong feelings.’ But she then goes on to describe the event and the response to it in terms that can generously be described as misleading. 

Prof. James summarizes the response to Victoria’ free speech event as follows (to use her punctuation): 

What surfaced, from one direction, was genuine anxiety about amplifying views that might cause harm.  What this provoked from the other direction was, at best, a mischievous and provocative misinterpretation of the word “postponed” (swapping it for that most charged of words; “cancelled”).  At worst it was vitriolic petulance, best summed up in the quote, by one of the parties; “Good news, kids. It’s OK; words aren’t violence.” 

How Prof. James knows how genuine the anxiety about certain people’s views was is not clear. It is worth noticing, though, that many of the claims that student activists made about how worried people were about speech strained credulity.  

A few students, for example, were described as ‘freaking out’ over ‘right-wing voices,’ those voices apparently belonging to Free Speech Union director Jonathan Ayling and one of us (Michael), neither of whom are especially right-wing. VUWSA President Marcail Parkinson, for her part, said she was concerned that students would not have been able to ‘avoid that area’ – that is, the Kelburn campus’ central ‘Hub’ – ‘if they didn’t feel comfortable being around the debate.’  

But it seems hard to believe that anyone would be seriously discomfited by Ayling or Michael’s speech. Ayling spent three years at Vic, and Michael spent a decade there, both fairly recently. In neither case have there been reports of serious trauma being caused by their speech.  

Prof. James asserts that this ‘genuine anxiety’ provoked ‘at best, a mischievous and provocative misinterpretation of the word “postponed” (swapping it for that most charged of words; “cancelled”).’  

‘Postponed,’ of course, usually implies that the event is question has remained basically the same, but has simply been shifted to a different date. That is obviously not what happened in the case of Victoria University’s ‘free speech’ event. The original event was going to feature four speakers and be held in the Hub, a public area at the heart of Victoria’s Kelburn campus. The event that actually took place featured eight speakers and was held in a lecture theatre. It also had a changed format that ensured there was no exchange of arguments among the panellists. Most reasonable people would agree that saying that the original event was ‘cancelled’ would be perfectly fair.  

It is also not true to describe the response to the cancellation of the first event as ‘at best…mischievous and provocative.’ Sean Plunket invited VUWSA President Marcail Parkinson onto The Platform to discuss the cancellation. Jonathan Ayling was able to remind VUW leadership via the The Post that universities have an obligation to ‘allow for ideas to be thoroughly tested and for robust debate to occur.’ And Michael was able to make a number of important points about Victoria University, free speech and diversity, both in The Post and in an episode of our Free Kiwis! podcast.

Finally, Prof. James describes a social media post by the Free Speech Union stating that ‘words aren’t violence’ as ‘vitriolic petulance.’ If the Provost of Victoria University views a simple statement of fact as ‘vitriolic petulance,’ what does that suggest about the climate for free speech there? At the very least, Prof. James’ reaction should remind us that what New Zealand academics describe as ‘harmful’ or ‘violent’ speech is often simply speech that they disagree with.

Prof. James goes on in her piece to reflect on the way ‘the internet has provided incredible ease of connection, and simultaneously created communication cul-de-sacs, that trap people in isolated cliques and sycophantic claques.’ She notes that free speech is protected in the UN Declaration of Human Rights alongside freedom of thought, and interestingly takes from this an ‘encouragement to pause before we express our opinions.’ And she reflects on how her ‘privilege is being in the white majority’ and in ‘revelling in robust argument,’ something she somewhat unexpectedly characterizes as ‘my approach to debate.’ 

Prof. James ends her article with ‘a last word on words’ that deserves to be quoted in full: 

when I was walking to work a few mornings ago a pile of leaves was swirling down the curb and my mind said, “there is the wind”. The wind, though, was all around, strong and invisible and shaping the way I leaned into is as I walked.  We choose to notice some words, the lively, swirling ones; or the ones that blow stinging dust into our eyes.  We need to remember to notice all the other words; that have shaped our environment, our thoughts, and twisted some of us into beautiful, windswept oddities. 

This kind of lyricism (somewhat reminiscent of the stoner in American Beauty) is obviously something that recipients of Oko are free to spend some portion of their mornings on if they feel so inclined. But there are at least two things about James’ ‘thing about words’ that we found quite disturbing. 

The first is that this is an article sent to all academic staff by a very senior administrator (i.e. boss) at one of our leading universities. It is on the freedom of speech, the keystone principle of both liberalism and democracy, and a topic on which there is (understandably) an enormous literature in fields such as political theory, the philosophy of law, and intellectual history. Obviously, a full panoply of footnotes and scholarly references wouldn’t have been appropriate in an op-ed in a staff newsletter. But some indication that James wasn’t thinking about this most important of topics for the first time might have been reassuring. 

This is especially the case in view of the fact that we have been having a debate about free speech and academic freedom across the English-speaking world for at least a decade now (though admittedly this debate has tended to be more lively outside the academy than inside it, for obvious reasons).  

We have tried to contribute to this debate ourselves, most substantively in the report we released with the New Zealand Initiative last year. In it, we presented a number of surveys of academics and students, a selection of anonymous testimonies from academics, and a catalogue of incidents involving academic freedom that have taken place on our campuses over the past decade.  

Prof. James doesn’t have to cite our work. But the fact that she seems to feel no need to even mention any of the now overwhelming evidence that we have a problem with free speech at New Zealand universities is interesting, to say the least. ‘Can the modern University be the place where robust, relevant debate can happen?’ she asks, before immediately answering her own question, astonishingly blithely, ‘We already are!’  

It is of course true that a lot of ‘robust, relevant’ debate does take place at our universities. But it is also true (as several different surveys have now shown) that substantial numbers of academics and students feel uncomfortable discussing a few crucial topics, including the Treaty of Waitangi and the nature of sex and gender.  

Prof. James’ column appeared at just the right time, as the government was preparing its revisions to the Education and Training Act, revisions that will include enhanced protections for academic freedom. Draft legislation has now been released.  

What Prof. James’ column shows, yet again, is that New Zealand universities cannot be trusted to uphold their statutory or ethical obligations to academic freedom and the freedom of speech. Senior administrators either do not understand free speech, actively dislike it, or are not willing to openly defend it, and the same can be said for a good proportion of New Zealand’s academics. As Prof. James’ piece reminds us, they are often not even willing to educate themselves on the issue or to engage with the now plentiful evidence that academic freedom in under threat in an honest way. 

So make no mistake: senior administrators at our universities have neither the wit nor the wherewithal to restore genuine academic freedom themselves. It is vital not only the academic freedom legislation that is currently before the house passes, but also that it has teeth, and doesn’t naively trust our largely anti-free speech university managers to police themselves.