—Adrienne Stone, Melbourne Laureate Professor and Director of the Centre for Comparative Constitutional Studies at Melbourne Law School
[Editor’s Note: In conjunction with the 2026 ICON-S conference in Dublin, Ireland, ICONnect is featuring blog posts written by some of the participants in the 2026 conference’s Plenary sessions. This is the third post in that series.]
I have come to have an interest in academic freedom through my interest in constitutional law and specifically my interest in freedom of expression. Throughout my career, but most especially in recent years, I have often been consulted by colleagues with worries framed as problems of freedom of expression. However, I quickly came to realise that in fact a different set of principles were implicated, those that protect academic freedom.
From there began a project to understand academic freedom better and to distinguish it from freedom of speech. During 2019, I wrote a book on the subject, with my colleague Carolyn Evans, now the incoming Vice Chancellor and President of the University of Melbourne. Its publication was delayed by the pandemic, and we were rather afraid that by the time it appeared in 2021, that its time would have passed and interest in academic freedom replaced by something more pressing.
How wrong we were. It seems every year since, controversies have multiplied and deepened with the tragic conflict in Gaza being the latest and particularly intense flashpoint but at other times conflicts arising over questions of race, gender, and sexual assault, among other issues.
My interest in these questions has now deepened as well. Having come to academic freedom as a scholar of freedom of expression, I am now interested in the university as a scholar of constitutional law. My project is a more systematic exploration of what perspectives from constitutional law bring to the understanding of academic freedom and our view of universities more generally. In this post, I offer four core insights.
1. Universities as Knowledge Institutions
Framed at the most general level, the perspective of constitutional law focuses our attention on universities as institutions within a system of government. It is a standard tenet of constitutional thought that State power should be divided between the legislature, executive and judiciary. That division allows for specialisation among the branches and serves to disperse and limit power. Recent strands of scholarship have reconceptualised this division of power and argued for a ‘fourth branch’ of ‘guarantor institutions’, that oversee other branches and because of their independence and expertise can respond to some of the weaknesses of the traditional three branches.
Into this schema, thanks to the groundbreaking work of Vicki Jackson, we can now add ‘knowledge institutions’. These institutions, like fourth branch institutions are both independentand expert but, rather than providing oversight, knowledge institutions support democratic government through knowledge production. Universities are clearly such institutions, but the category is wider. Among the examples that Professor Jackson gives are government offices that collect and report statistics, scientific and economic information on which governments in turn rely for decision making.
This insight is profoundly important. The foundation for the idea that democracies rely on knowledge institutions lies in understanding that knowledge is essential for democratic governance. Knowledge is important irrespective of its connection to democracy. It gives us the capacity to control the world around us and improve our lives. It is important to all governments that want to achieve their aims and, especially given the complexity of the task of modern governance, it is not surprising that even highly authoritarian States pursue knowledge especially in the natural sciences.
But for a democracy, knowledge is important for its role in securing that form of government. It promotes accountability, and through it, legitimacy by enabling us to determine if rights are being respected and if a government is abusing its power.
The ‘knowledge institution’ account of universities provides the best case for their place in a democracy and crucially a democratic argument for academic freedom. Academic freedom ensures the conditions necessary for knowledge creation, which in turn, provides an essential ‘epistemic infrastructure’ for democracy. Jackson’s work intersects powerfully with Robert Post’s foundational work on academic freedom, which shows how academic freedom creates the citizen competence necessary for democratic participation.
2. University and Civil Society
This understanding of universities, important as it is, should not however obscure the complexity of a university. Universities have many social functions, as Clark Kerr was memorably to show in his description of the ‘multiversity’. Also important for the constitutionalist is association of universities with ‘civil society’, by whichI mean (relying on Michael Walzer) the social space in which citizens come together freely to pursue their own ends.
Can universities be considered institutions of civil society? And do they further serve democratic government through their support for citizens? On the face of it, publicly funded universities do not fit the category at all particularly well, as they are creatures of, and dependent upon, the State. But in any modern regulatory State, the independence of civil society is qualified. Any complex institution is likely to be subject to the regulatory power of the State. The sobering recent history of private universities in the United States makes this point vividly.
But even if universities do not fully meet the criteria of an institution of civil society, universities often have a close and vital connection to it, hosting and providing resources for faith-based, cultural, political and sporting associations. Among the examples Carolyn Evans and I give in Open Minds are:
An artist displaying his work in a public exhibition; a political journalist offering insights drawn from her reporting in a public lecture; a refugee advocate campaigning for legal change; a judge discussing the law ; a politician engaging in political advocacy or joining a discussion panel on the issues of the day.
Of course, not all universities are the same. With the benefits of the perspective of comparative constitutional law, I should acknowledge I have in mind institutions like my own – large, urban universities of the Global North. But these universities at least, and maybe others, host and foster and promote an associational life that engages well-beyond the university community.
So, universities (of the kind I have in mind) should be understood as part of the apparatus of civil society. Their role goes further than merely providing a public forum for politics. They enable and amplify the activities of civil society, allowing for sustained and complex forms of interaction between citizens in the form of deliberation, organised decision making and planning of complex activities over time.
This role offers a separate, but also powerful, contribution to democracy. Civil society is necessary for a healthy democracy or at least for a liberal democracy that values the autonomy of the individual’s own ends as an aspect of a free and dignified life. It provides, as well, an important check on government and for that reasons it tends to be quickly targeted by authoritarian States.
3. Academic Freedom and Freedom of Speech
With this dual understanding of the nature of universities, we are now in a better position to understand the distinction between freedom of speech and academic freedom in universities. As I hope it will be quickly evident that each of these freedoms relates to a distinct role of the university. Freedom of speech is valued within universities because they provide support for civil society which is dependent on expressive freedom. Academic freedom is valued, by contrast, because universities are knowledge institutions devoted to the advancement of knowledge through teaching and research.
Many of the controversies about freedom of speech in universities arise because of a tension between these two institutional roles. Consider the question of controversial speakers on university campuses. As an institution of civil society, the university might want to prioritise the open and robust exchange of ideas, maximising the autonomy of the citizens who gather there. Considering just its role as an institution of civil society, for a university the appropriate limits on freedom of speech would be the same as those that apply in the polity at large.
But once the university’s function as a knowledge institution is factored into the equation, the picture is different. A university will need also to consider how allowing a controversial speaker might affect its role as a knowledge institution. Most of the time, there will be no conflict at all. A lively intellectual climate that includes a place for controversial ideas is entirely consistent with, indeed conducive to, academic inquiry. But a university is entitled at least to consider whether there is harm caused to its staff and students that interferes with its knowledge seeking role, whether the speaker is using the university as a respectable cloak for ideas that have not undergone the same processes of rigorous checking that is required of academic work, and whether the speaker seeks to undermine the university itself and its commitment to academic inquiry. As Carolyn Evans and I explain in chapter 4 of our book, universities should be cautious and only rarely intervene in the ‘public square’ of the university. But the institutional analysis offered here provides a principled framework for any decision to do so.
4. Scholars as Constitutional Actors
Finally, if we take the claim that universities are ‘knowledge institutions’ with a constitutional role akin to fourth branch institutions seriously, then all scholars (and not just constitutional scholars) are constitutional actors, and their actions have immense significance for the capacity of universities to fulfill their constitutional role. As I have argued elsewhere, their central obligation is to pursue and disseminate knowledge through academic inquiry, which in turn requires that scholars pursue knowledge in accordance with, and having regard to, academic disciplines.
Constitutional law has a further lesson for us in this regard. The proper discharge of this role will require much more than institutional structures of enforcement. Protection of academic freedom will depend on many small decisions made day to day. It is neither possible nor desirable entirely to oversee academics to ensure that they act consistently with their academic role. As with any constitutional institution, the proper operation of a university depends upon constitutional actors abiding by internalised constitutional norms.
As a community of scholars, we should work individually and collectively to promote this understanding and the commitment of scholars to it. It may not be an easy task. The role morality of a scholar requires us to hold steadfast to a commitment to the pursuit of knowledge; to remain attentive to academic methods that are the best safeguards for the reliable pursuit of knowledge; and to refuse, so far as we can, to compromise our independence even when it might be in our personal self-interest to do so.
Suggested citation: Adrienne Stone, Thinking Constitutionally About the University: Academic Freedom and Freedom of Speech, Int’l J. Const. L. Blog, Jul. 2, 2026, at: http://www.iconnectblog.com/thinking-constitutionally-about-the-university-academic-freedom-and-freedom-of-speech/