By Kaja Marinic, 2L
On January 30th, Scott van Dyk argued in the Legal Eye that Dalhousie University was wrong to punish the notorious 13 dentistry students who were members of a Facebook group littered with misogynistic posts. Specifically, he said that:
“[T]he act of punishing these students at all violates our ideas of free expression.”
“The appropriate response by Dalhousie isn’t to punish or to ‘rehabilitate.’ It’s to let these students simply be known as the assholes that made inappropriate jokes.”
In our own little Peter A. Allard Facebook groups, disagreement and drama ensued. When challenged on the need for institutions to take sexism seriously by creating real consequences, Scott added in a comment that:
“No sanction from a public authority is needed. In today’s age, not only are vile people socially ostracized, but markets punish those individuals and their careers too […] At no point did I argue that speech shouldn’t have consequences.”
I think this viewpoint is dangerous. I want to examine why it is important for Dalhousie to take a firm stance against the kind of misogynistic speech at issue. A “firm stance” here entails taking punitive measures against the harassers, since a merely symbolic stance would be entirely toothless as a deterrent and would fail to address the concerns of the targeted women, the student community, and the public at large.
Some Facts for Context
The dentistry students have not been expelled. They are attending their classes remotely and have had their clinical privileges suspended for now, which could affect their ability to graduate if the suspensions stick. Dalhousie has announced that it has created an “independent task force” to investigate the matter further and have set up a “restorative justice” process involving the thirteen men and several women who were targeted or affected. There is ongoing controversy over the extent to which each member of the group participated in the problematic posts and whether or not they should be punished equally.
The posts at issue included a poll about “hate-fucking” particular classmates, comments denigrating women’s professional aptitudes, and multiple “jokes” specifically about raping women (after drugging them with chloroform, or after assaulting them to the point of unconsciousness, or in order to “convert” lesbians “into productive members of society”).
There are ongoing debates as to whether the punishments are too harsh or not harsh enough (as some think the suspensions will be lifted after “restoring” justice). I am not primarily interested in defending the merits of one particular punishment over another, but rather in upending the idea that there should be no (or hardly any) institutional consequences for people who make such misogynistic comments “in private” or as “jokes.”
Freedom of Expression
Scott argues that punishing people for offensive speech violates our societal commitment to “free speech.” He apparently finds it self-evident that protecting offensive speech is inherently valuable regardless of circumstances, consequences, or context. But context changes everything here.
Firstly: We know that even when one’s legal right to free speech is being considered—as a negative right against restriction by governmental actors—the right to freedom of expression is neither absolute nor always valuable. The core of the right that makes it generally valuable at all, according to the courts, is its tendency to instrumentally serve truth, self-fulfillment, and democracy. When speech does not promote those purposes, your right to express it might be justifiably infringed in the service of others’ interests in a free and democratic society. The more that speech deviates from these purposes or even actively undermines them, the easier it is to justify infringement. We have laws against hate speech and sexual harassment on this basis.
Secondly: Dalhousie is not a governmental actor but, in this case, a professional dentistry school. People are not entitled to become dentists. If students endanger the public’s trust in a profession involving a fiduciary relationship, their behaviour should be deterred. If students threaten and harass other students in their classes, the university should punish them and ensure a safe and non-discriminatory learning environment for those targeted. Thus, the university is within its rights to punish its students for offensive speech of this nature.
But, to be charitable to Scott’s stance, this argument isn’t really about legal entitlement to speech but rather the normative value of optimizing freedom of speech whenever we can. We tend to value the promotion of free speech even in institutions that are not bound by the Charter, especially in academic institutions, because we want to protect the accessibility of the “marketplace of ideas.” So while the university can punish these students if it wants to, and these students are not legally entitled to become misogynistic dentists, this does not settle the debate about whether Dalhousie should punish students for offensive speech.
Here’s why Dalhousie should punish them:
We need to eradicate sexism and sexual harassment. It hardly needs to be said that sexism and sexual harassment are incredibly unjust, harmful, and pervasive. They have been particularly difficult to eradicate in professional contexts that have for so long been exclusively or predominantly male. The normalization and internalization of sexist biases, however subconsciously held or seemingly minor, leads to women being driven out of the profession, being undervalued in their roles, losing employment and promotion prospects, enduring countless injustices, being undermined in other facets of their life and broader society, and facing chronic psychological and emotional stress. If we are to eradicate systemic barriers to gender equality in professional contexts, professional and academic institutions cannot casually tolerate threatening, discriminatory speech or sexual harassment. Concrete, impactful consequences for such speech are necessary for the institution to signal intolerance. Punishment is not for its own sake, to shame or otherwise exact revenge or harm upon these men because they said “offensive” things. Punishment is necessary and instrumental for setting a precedent of intolerance for discriminatory and harassing speech in order to allow women to participate fully and equally in society and in professional contexts in particular. In context, these comments are not anomalous or harmless; they are part of an indescribably immense interconnected system of gender inequality. This “Gentleman’s Club” Facebook group is just one component of a legacy of exclusionary men’s spaces.
Furthermore, it is relevant to note that in this case, in particular, the comments are not just vaguely discriminatory in the sense of unfairly suggesting that women are different or inferior. They are threatening. These comments are about taking pleasure or satisfaction in the thought of treating women and their bodies as non-human disposable sex toys to be abused for men’s purposes. Sexual harassment often manifests in the form of such “jokes,” which harassed persons experience as barely veiled threats. Couching harassment in “jokes” is a convenient technique for harassers seeking to dodge accountability if they are ever challenged for their aggressive statements. “Joking” about violence does not lessen the impact of that violent statement, nor should it automatically shield you from accountability for it. Not only is the “joking” not an excuse, it can be an aggravating factor. It can be additionally disturbing that someone finds these things to be funny, because it might suggest that they enjoy the thought or are unable to comprehend the harmfulness or pervasiveness of a real problem. The trivialization of assault using sedatives is particularly threatening when it is coming from future medical professionals who regularly use sedatives. Dalhousie needs to take these comments seriously in order to address the legitimate safety concerns of women students and patients.
This is a context which is wholly absent from Scott’s reasoning. He clarifies in a comment on his post that his “primary reasoning” in favour of unfettered free expression “is based on an aversion to authority dictating what [his] thoughts ought or ought not to be.”
This is an entirely decontextualized concern. This is why people care about democratic free speech rights in the complete abstract—they do not want the government to burn books or suppress dissent or curtail revolutionary sentiment or enforce any kinds of rigid standards on us, the “little guys,” who are vulnerable to state oppression. But to ride on the coattails of this kind of broad abstract vision of “free speech” is incredibly disingenuous in the present context. There is no slippery slope threat of mind control here. A university is protecting some students from other students who are dehumanizing women and trivializing sexual violence. The ability of women students to fully participate in the educational context and exercise their free expression is also at stake. It is only by pointedly refusing to acknowledge that restrictions can be justified in some contexts, and are particularly justified in this context, that we can pretend there is some grand threat to democracy in punishing this speech.
As for Scott’s idea that only offensive speech needs protection, this is a misleading formulation of the issue. Some speech is “offensive” because it is so harmful that it is not worth protecting; in such cases, claiming the speech “needs protection” because it is in heightened danger of being banned completely misses the point, which is that perhaps such speech should be banned. This is the case with hate speech. There is no freestanding moral value in protecting offensive speech regardless of context, and non-offensive speech is certainly not “dull” or unimportant speech. Furthermore, it is fallacious to claim that treating different speech in different contexts differently leads to “banning all speech that is offensive to someone” or “privileging some people over others” in an “irrational” way.
To suggest that we should leave punishment to the market forces and social norms of the times misunderstands the purpose of punishment, which is ensuring a standard of intolerance to promote equality. It is crucial for an institution to clearly and actively signal that discrimination is unacceptable. To lazily “assure” women that social forces will somehow organically ostracize these men is to do absolutely nothing to ensure that things change.
Leaving consequences up to social shaming betrays ignorance as to the actual prevalence and acceptance of discriminatory and harassing speech even today. There is still an unacceptably large number of people who don’t think discrimination is wrong, or know it’s wrong but don’t care about it, or just refuse to speak out about it, or refuse to acknowledge that it really happens, or just don’t realize that they or others are doing it. Furthermore, the majority of people do not actually have to engage in harassment in order for harassment to be prevalent because of repeat offenders. Many people thus still experience sexual harassment and discrimination in their working lives.
Leaving consequences to social shaming also ignores the fact that institutional changes can, over time, create a top-down shift in social norms and perceived acceptability. The increasing societal rejection of sexism has not happened magically on its own. Policies that specifically punished sexist teachers, removed sexist language from textbooks, created harassment complaint mechanisms, etc. have helped to create a culture where sexism is less normalized and thus less tolerated.
Leaving consequences to market forces also betrays an indifference as to whether those consequences actually accrue. Even if it IS profitable to discriminate—and it may still often seem profitable to discriminate—discrimination is wrong.
I won’t claim that Dalhousie is handling the situation with perfect procedural fairness or even with perfect motives—they would likely handle things quietly if they could, and the punishment is likely partly motivated by reputational and PR concerns.
But I do think that, now that we know what these students have said, it is important for them to face consequences. There is little to no value, but substantial harm, in allowing such speech to be totally free.