By Karan Singh Tyagi
December 10, 2011
A November 2011 picture of protesters making their way to the grounds of Harvard Law School for an ‘Occupy Harvard’ rally after being denied access by the administration to assemble. Photo: AP
The battle for free speech is always fought on the fringes, with people whose thoughts find scant endorsement. Protecting their rights does an essential public service, because it protects everyone's rights.
At a time when Kapil Sibal's statements on monitoring online content have raised a furore in India, his alma mater Harvard is engaged in free speech issues of its own. Two recent decisions taken by the Harvard University raise pertinent questions relating to the University's ethos of dissemination, debate, and freedom of expression.
The first concerns the decision to exclude Janata Party leader Subramanian Swamy's courses from the Harvard Summer School course catalogue. The second is the University's decision to close Harvard Yard to outsiders involved in the Occupy movement.
A NEWSPAPER OP-ED
To begin with, on December 7, Harvard University's Faculty of Arts and Sciences took the unprecedented step to remove the summer economic courses taught by Mr. Swamy, himself a PhD from Harvard. The decision was based on a controversial op-ed written by him in the newspaper Daily News and Analysis (DNA) on July 16 in response to terrorist attacks in Mumbai. In the op-ed, he had offered strongly worded ideas on how to “negate the political goals of Islamic terrorism in India.” Among his ideas were that India should “enact a national law prohibiting conversion from Hinduism to any other religion,” “remove the Masjid in Kashi Vishwanath temple and the 300 Masjid at other temple sites,” and “declare India a Hindu Rashtra in which non-Hindus can vote only if they proudly acknowledge that their ancestors were Hindus.”
Undoubtedly, the op-ed is execrable in so many ways, starting with cloaking itself with an understanding of social and religious history of India, and making suggestions that would leave a lot of people speechless with outrage just to think of them. Notwithstanding that, however, Harvard ought to stand for Mr. Swamy's freedom of speech.
Freedom of speech is probably the most sacred constitutional guarantee of all, and the true test of this sacred right is when someone uttering morally repugnant thoughts exercises it. The U.S. courts have long held that in times like these, there is a need to swallow hard and understand that, in a free society, any restriction on speech or expression must be taken under very serious consideration and pass some very stringent tests regarding public safety, and clear and present danger.
To take just one example: recently, a case was brought against Fred Phelps, a pastor, who demonstrated at the funeral of a soldier killed in Iraq, with signs that said things like “Thank God for Dead Soldiers” and “You're going to Hell” because, in his twisted mind, America's war deaths were God's punishment for the U.S. tolerating homosexuality. In the case brought by the dead soldier's father alleging an injury for the intentional infliction of emotional distress, the U.S. Supreme Court held for Fred Phelps (protecting his right of speech), and against the dead soldier's father by a vote of 8-1.
In doing so, the U.S. Supreme Court solidified the notion that underlying the constitutional protection of freedom of speech and expression are values that transcend what people like Mr. Phelps and Mr. Swamy say — values important to everyone. And when free speech rights are attacked, if one allows the least popular and morally abhorrent people to be deprived of their free speech rights, then it is not long before others are deprived too. Thus the battle for free speech is always fought on the fringes, with people whose thoughts find scant endorsement. Protecting their rights does an essential public service, because it protects everyone's rights.
Examined through the above constitutional lens, Harvard's decision to exclude Mr. Swamy's courses, and thereby effectively oust him from the teaching roster, appears harsh. Also, Harvard has in place strong commitments to free speech in its policies, and this decision violates these policies. The University's “Free Speech Guidelines,” adopted in 1990, state, for example, that “curtailment of free speech undercuts the intellectual freedom that defines our purpose. It also deprives some individuals of the right to express unpopular views and others of the right to listen to unpopular views.”
Although the subject matter could not be more different, the second decision displays the same oppositional stand of Harvard against a libertarian conception for freedom. It relates to the University's decision to close Harvard Yard to outsiders engaged in the Occupy movement that has erupted all around America.
Harvard Yard is a calm and vibrant community space where students, tourists, and community members sit and stroll. Many buildings, including dormitories, libraries, a church and lecture halls, surround it. In the month of November, tents had sprouted on Harvard Yard in solidarity with the Occupy movement. The Occupy movement at Harvard was made up of Harvard students, staff and faculty, and posed no threat to the security of Harvard affiliates.
However, on the pretext of security, the University ordered a complete lock-down of the campus, thereby depriving outside protestors the basic freedom to have an open conversation on the campus. In doing so, Harvard reinforced institutional exclusivity and elitism — features that the Occupy movements seek to change.
Many professors of Harvard shared this sentiment. Notably, Duncan Kennedy, a Law School professor, wrote an open letter to Harvard President Drew Faust expressing his dissatisfaction with the way the University administration handled the protest. Without a doubt, the decision to close the gates amounts to a violation of the freedom of assembly in the most general sense by saying that Harvard is off limits to those that seek to engage in a public-spirited discussion.
It is bewildering how a peaceful movement in protest against economic inequality would provoke the lock-down of a University that admits students because of their commitment to the democratic values of an open and just society. This, and the decision to rebuke Mr. Swamy, is precisely the sort of action that a university dedicated to intellectual freedom must seek to avoid.
It is central to Harvard's thriving as a centre of excellence that it immediately reassures that freedom of expression will be protected at Harvard. The University must honour its commitment to policies that allow diverse opinions to flourish and to be heard. And who knows in doing so, Harvard might just provide its famous Indian alumnus, who has recently been at the receiving end of a lot of flak, a much-needed free speech message.
Karan Singh Tyagi, a graduate of Harvard University, is an associate attorney with an international law firm in Paris.
Source: The Hindu, New Delhi