Free speech principles and standards in academia: The case of racism

• Courts inevitably face scientific and moral questions when addressing racism-related cases in academia. • Courts have traditionally shown deference to science, yet they tackle moral dilemmas through the language of law. • The European balancing act is very close to the test US judges apply when they consider whether racist speech constitutes a clear and present danger of an ‘imminent lawless action’. • Both regulatory models have developed legal principles and standards that can be applied to academic speech and research. • When interpreted properly, these principles and standards could help avert the two perils that threaten academic freedom: the limitless dissemination of racist ideas in the name of ‘absolute freedom’, and censorship. Hostile and untruthful expressions are notably prevalent across the world. This phenomenon also affects academia. Our legally centred article asks whether academic speech and research are protected even if a professor’s statement, research outcome or research agenda could potentially offend people or even cause moral distress to members of socially disadvantaged groups. The focus of the article is on two regions that have long been widely regarded as offering robust free speech protections: the United States and Europe. The article demonstrates that under both regulatory models, courts inevitably face scientific and moral questions when addressing racism-related legal cases in academia. Courts have traditionally shown deference to science, recognising that addressing scientific matters falls outside the judicial purview and instead belongs to the realm of academia. However, in both models, judges tackle moral dilemmas through the language of law. Notwithstanding their differences, both regulatory models have developed legal principles and standards (the ‘clear and present danger’ standard on the one hand, and the balancing of competing constitutional values on the other) that, when interpreted properly, could help avert the two perils that threaten academic freedom: the limitless dissemination of racist ideas in the name of ‘absolute freedom’ and censorship.