Included in Discovery: Atlantic Education & the Law – Issue 10

Richard Jordan & Jennifer Taylor 

As the COVID-19 pandemic surges on, so does the flow of misinformation online. Academia has not been immune, with professors around the world spreading misinformation about the virus — and raising questions about how far their academic freedom goes.

Dolores Cahill was a professor at University College (“UCD”) in Dublin, Ireland, and an expert in proteomics, the study of proteins and their functions. After the COVID-19 pandemic began in March 2020, Dr. Cahill made “a number of staggeringly erroneous claims” about COVID-19, which she and others spread on social media. Before Irish media reported in September 2021 that Dr. Cahill’s position had been terminated, the President of UCD had cited academic freedom as one reason why the institution had not done more.

Dr. Cahill is far from the only academic who has made headlines for promoting misinformation about COVID-19 on social media (and in mainstream media).

In the United States, Professor Scott Atlas took a leave of absence from his position at Stanford University to work as a “coronavirus adviser” to former President Donald Trump. Within three months of his appointment, the Stanford University Faculty Senate passed a resolution with 85% approval accusing Atlas of spreading disinformation that not only contradicted the science on protective measures like masks, but also damaged Stanford’s “reputation and academic standing.” Dr. Atlas resigned from his position two weeks later.

Dr. Michael Levitt, another professor at Stanford and a former Nobel Prize winner, has been challenged for the “dangerous” and “clueless” views about the pandemic that he had posted on social media.

Here in Canada, a faculty member at the University of Saskatchewan, who also works for the Saskatchewan Health Authority, posted a video describing COVID-19 vaccines as an “experimental injection.” And Professor Donald Welsh, a professor of vascular biology at the University of Western Ontario, posted tweets in April 2021 that compared the COVID-19 advice given to Ontario by its scientific advisers to something out of the Holocaust, calling those experts “public health extremists.” One of his colleagues accused him of “hiding behind the protections of academic freedom to spread misinformation”, while the University told CBC News that academic freedom prevented them from taking action.

So what options does a university have to respond to a faculty member who is spreading false or misleading information about COVID-19 on social media? Do faculty members have academic freedom to post whatever they want on social media without any recourse, or are there circumstances in which faculty members could — and maybe should — be disciplined for such conduct?

What is academic freedom and how is it protected?

Academic freedom can be a nebulous concept, but a useful definition comes from the Canadian Association of University Teachers (“CAUT”). CAUT describes academic freedom as including “the freedom of teachers, without restriction by prescribed doctrine and free from institutional censorship, to carry out research and publish the results thereof, to teach and discuss, and to criticize the university.”[1]

Collective agreements should be consulted for more specific applications of this general principle. A recent report, prepared by the Honourable Michel Bastarache for the University of Ottawa, found that academic freedom is referenced in 85% of collective agreements between faculty unions and universities in Canada.[2]

One Atlantic Canadian example is the current Collective Agreement between the Board of Governors of Dalhousie University and the Dalhousie Faculty Association. Article 3 recognizes the essential nature of academic freedom “in the search for knowledge and the communication of knowledge to students, colleagues and the society at large.”

Notably, the parties also acknowledge “that academic freedom carries with it a corresponding responsibility on the part of Members to use their freedom responsibly, with due concern for the rights of others, for the duties appropriate to the Member’s university appointment, and for the welfare of society.”

The reference to “duties appropriate to the Member’s university appointment” in a definition of academic freedom indicates that the concept may be confined to the subject areas of the educator’s teaching and research.

Does academic freedom extend to social media?

Depending on the terms of the applicable collective agreement, whether academic freedom extends to social media will have to be determined on a case-by-case basis.^[3]

In 2019, CAUT published a policy statement on Academic Freedom, Electronic Communications and Social Media, insisting that “the rights of academic staff to exercise their academic freedom do not vary according to the medium in which they are exercised.”

With regard to ‘extramural’ expression, CAUT suggests that this falls within the scope of academic freedom: that in “expressing in electronic fora and social media their views on topics of public interest, whether or not those topics fall within their area of professional expertise, academic staff have the same rights of academic freedom as when they engage in any other form of public discourse.”

In contrast, nothing in Universities Canada’s policy statement on academic freedom suggests that the right of a professor to make extramural comments lies within the scope of academic freedom.

Take the hypothetical example of an astrophysics professor who posts on social media that COVID-19 is a hoax. That statement is not only demonstrably false, but pronouncements about infectious diseases are also outside the astrophysicist’s area of expertise.

The more challenging case is where there is a connection between the faculty member’s academic work and COVID-19. For example, statements made about COVID-19 vaccines by a professor associated with a faculty of medicine at a Canadian university may be more likely to be protected by academic freedom (even if wrong or misleading). But what about a historian who studies pandemics, or a literature professor who teaches about Shakespeare and the plague — are they protected by academic freedom, and therefore protected from disciplinary action, when talking about COVID-19? The line is blurry.

Interestingly, some professors have written on their Facebook or Twitter accounts that their “opinions are my own” and do not include the name of their employer. On the one hand, if the faculty member expressly states that their social media posts only represent their personal views, then those posts should not be protected by academic freedom. On the other hand, simply writing a disclaimer that “these opinions are my own” on social media platforms should not be enough to shield a faculty member from disciplinary consequences from the university. Many social media users would be aware of, or could easily figure out, a prominent academic’s university affiliation, notwithstanding their use of a disclaimer.

What options do universities have in response to faculty members who disseminate COVID-19 misinformation on social media?

Faculty members who are disseminating COVID-19 misinformation online may end up falling on their own swords, by harming their reputations, losing research credibility among their peers, dissuading students from signing up for their classes, and depriving themselves of opportunities in their field. But that doesn’t justify inaction by their university employers.

Universities have several tools to deal with the dissemination of false and misleading information on social media about COVID-19. These include:

• proactively designing social media policies, and incorporating the principles into new collective agreements to make it clearer where the university intends to draw the line between protected and unprotected expression on social media;
• disciplining faculty members who have spread harmful comments on social media, in accordance with the applicable collective agreement (although we are not aware of any US or Canadian cases where a university has disciplined a faculty member for spreading COVID-19 misinformation on social media);[4] and / or
• issuing statements and social media posts of their own, to counter misinformation coming from faculty members. This seems to be the most common action that universities have taken in tackling COVID-19 misinformation.

Other stakeholders may act, too. Faculty members within or outside the university will often speak out against or publish open letters to refute the false and misleading information, and to dissociate themselves – and their institution – from their colleague. Students may write open letters of their own, and refuse to register in classes offered by the faculty member.

Conclusion

Many universities have been hesitant to act against faculty members who peddle COVID-19 myths, on the mistaken assumption that academic freedom ties their hands. While academic freedom is of paramount importance for any university, it is not unlimited. Especially in the context of an ongoing pandemic, universities can consider taking disciplinary action against faculty who promote harmful disinformation, where that would be a proportionate response and consistent with the governing collective agreement.

[1]     CAUT Policy Statement on Academic Freedom, as summarized by the Honourable Michel Bastarache, CC, QC in Report of the Committee on Academic Freedom for the University of Ottawa (2021) at 13.
[2]     Report of the Committee on Academic Freedom at 15.
[3]     It is an open question whether the Canadian Charter of Rights and Freedoms would apply where a university purports to limit a faculty member’s online expression. For more on the issue of Charter application in the university context, see Jennifer Taylor, “Freedom of expression on campus: A new development from Alberta” in Discovery, Issue 6 (Spring 2020).
[4]     See, for example, Article 28 of the Dalhousie Collective Agreement discussed above.

This update is intended for general information only. If you have questions about the above, please contact a member of our Education group.

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