What is Freedom of Expression?

17 Oct 2016
Author: Robert Precht

This is a ​provocative blog post in which NYU law professor Roderick Hills argues "that freedom of speech at NYU-Shanghai might be greater than at NYU-Washington Square or other schools on American soil.''

Query: if Chinese students risk imprisonment for trying to implement any of the liberal ideas they discuss in the classroom with their professor, is that true freedom of expression or is it a form of play-acting? Or worse -- self delusion? 

Academic Freedom in NYU-Shanghai versus NYU-NYC

Last week, the GAO issued a report on academic freedom at campuses operated by American universities in China. The report has special interest for me, because I spend my Fall terms teaching undergraduate students at one such university (New York University-Shanghai), and I had been interviewed for the GAO report.

The GAO’s conclusions are consistent with my own experience teaching here at NYU-SH: NYU’s campus here in China fosters freedom of speech and thought just as effectively as the campus in Washington Square. My class on constitutional law provides a typical illustration. The course studies the U.S. Constitution with the goal of assessing whether and to what extent its text, precedents, and basic concepts (freedom of speech, separation of powers and judicial review, federalism) are relevant to China. Toward that end, the class is divided into two teams – the “Left Party” (左派)and the “Western Liberal Party” (西自由派) who are charged with trying to persuade or dissuade the chair of Central Political and Legal Affairs Commission of the Communist Party of China (Zhongyang Zhengfawei, 中央政法委) to adopt an American constitutional practice. The two teams debated last week whether Article 105 of the Chinese Criminal Code prohibiting “subversion of state power” should be construed narrowly to exclude prosecutions of Chinese human rights lawyers. Thanks to NYU-Shanghai’s outstanding VPN, they had the same access to newspaper accounts of these arrests, detentions, and coerced confessions. The ensuing debate was no-holds-barred, with impassioned denunciations of censorship and prosecution vying with Leninist calls for protection of stability against “western outsiders.”

Of course, one could argue that these outward manifestations of freedom merely hide the reality that Chinese students are cowed by the Party, whose spies deter them from saying what they really think. After the jump, I will explain why I think that it is unlikely that NYU-Shanghai students’ speech – and, by extension, students at other American universities in China – is chilled by fear of the Chinese Communist Party. Indeed, I will suggest that, if anything, freedom of speech at NYU-Shanghai might be greater than at NYU-Washington Square or other schools on American soil. My reason for this suspicion is that the major culprit suppressing freedom of speech on campuses is less the government than other students, and the diversity of nationalities at NYU-Shanghai breaks up the usual cartels of opinion that make so many American campuses oppressive hothouses of ideological uniformity. I will also suggest why well-meaning demands from people like Marty Flaherty that American law schools operating in China denounce the Chinese government for their sins against freedom actually undermine the sense of ideological openness that our students enjoy.


1.  First, why do I think that campus life might actually be freer in Shanghai than New York City? Americans have been arguing with each other about law and politics for a long time. Our American classroom quarrels, therefore, tend to have the parochial and repetitive quality of a grumpy siblings’ rehearsal of decades-old family grievances over one more Thanksgiving dinner. I vividly recall the students in my constitutional law class at Yale hissing at a student who dared to question freedom to obtain an abortion by asking whether the reasons for getting an abortion should matter. (To deflect the class’s ire, he felt the need to use Judith Jarvis Thompson’s article as political cover). During my office hours, Yalies would come by just to see what a real-life Republican looked and sounded like. Yale admittedly is a special case where orthodoxy on politico-religious values has, since the days of Federalist Timothy Dwight, always been treasured. But even at the more easy-going NYU, professors and students tread with exquisite care whenever sensitive topics arise, for fear of tripping over a half-hidden live wire of political resentment. I have had colleagues caution me that I should not ask the students an exam question about the Prison Rape Elimination Act, because rape was too controversial a topic to broach in a high-pressure context like a final exam. (I asked the question anyway, and the students did fine). As one NYU-Shanghai student has noted, “at NYU New York, between the university’s decision to actively investigate undesirable speech and the palpable social pressures to step in line politically, campus speech is more than chilled; it is frozen” while “[a]t NYU Shanghai students felt comfortable discussing taboo topics and defending free speech.” 

Why the difference? My personal hypothesis that national diversity drives out ideological orthodoxy. The students at NYU-Shanghai, coming from dozens of countries, are simply too unfamiliar with each other’s mores and peeves to know whether and when to be offended. There are no longstanding family quarrels that we all know we must avoid to maintain a chilly peace. What is the consensus position on, say, the legality and morality of a ban on porn or a Muslim woman’s entitlement to religious exemptions from a public school’s uniform requirements when the discussants are a Dutch atheist, a Pakistani Muslim, and a Chinese Communist Youth League kid? What is the orthodoxy on which the majority is supposed to latch? What anxieties must be anticipated by a trigger warning? It helps to disrupt expectations about who speaks for privilege and power that there is a division of power between Americans (who make up the majority of the faculty) and Chinese (who make up a majority of the students and have ultimate power to shut down the school). What is “left” or “right” at such an institution, where “New Left” look back to the halcyon days of Chairman Mao’s Cultural Revolution but also denounce the Chinese government’s arrest of 新左leafleters who attacked the government's profiting from land ground leases?

The fact that authoritarianism is on the table as a real option makes much more vivid classroom discussions of democracy and freedom of speech. You have not really discussed Robert Filmer’s attack on popular sovereignty until you have discussed it in a city where party-run newspapers regularly denounce multi-party elections. The usual lines from Mill or Oliver Wendell Holmes’ dissents about freedom of speech do not inspire drowsy nods of agreement but rather pushback from the Communist Youth League kids. 

2.  Should American legal academics in China denounce the Chinese government for its human rights abuses? Marty Flaherty has argued that we sell our birthright for a mess of tuition dollars if we hold our tongues. His thoughtful essay urges American universities in China to denounce human rights abuses when they can do so, as “carefully and prudently as possible.”

I myself do not, however, do much denouncing. To my mind, my job is to create a safe space, not to take sides. Rather than urge American liberal or libertarian values, I provide a forum in which they have a chance to defend themselves against people who do not share them. My credibility in performing this role, however, depends on my assiduous neutrality when the CYL student is attacking western intermeddling. There are plenty of “angry, young Chinese” (so-called 愤青) who feel patronized by Americans’ attacks on their government – even attacks that an American regards as morally unassailable defenses of universal human rights. It is not my job to make that defense: It is my students’ job. Since every student must debate on both the 西自由派 and 左派teams, that CYL patriot will eventually have to make a plug for freedom of speech and limits on arbitrary detention, just as the western liberal will have to argue in favor of the Party-State’s limitless discretion. (The requirement that everyone debate every side also has the advantage of giving everyone political cover of mandated insincerity, just in case the Party is keeping tabs).

Martin Flaherty implies that such neutrality is a form of moral cowardice, but I regard it as liberalism in action. The Chinese get horse doctor’s doses of political preaching. If NYU-Shanghai can provide something unique to Chinese students, it is a place where the professor does not preach and where everyone has to listen to everything and make up their own minds. I do not want any student at NYU-Shanghai, whether western liberal or 愤青CYL patriot, feel that they must hold their tongue because their faculty and classmates are preaching some orthodoxy that it is hazardous to question. There is enough of that sort of thing in America already.

Posted by Rick Hills on October 5, 2016 at 06:34 PM | Permalink