The free-speech debate as it stands
Just over a year ago, Universities Minister Sam Gyimah expressed the need to protect free speech in universities against “over-zealous” regulations. In February, the government released a guide for students and universities in which a key takeaway was: “everyone has the right to express and receive views and opinions including those that may ‘offend, shock or disturb others’”.
Freedom of speech in universities has been a hotly-debated topic in recent years, particularly so with the controversy surrounding no-platforming—the official decision not to invite particular individuals or members of certain groups to speak at events.
Most prominent cases include a decision by the National Union of Students to no-platform Germaine Greer in 2015 on the grounds that her feminist views were transphobic, and Nick Lowles in 2016, who was banned from speaking at a university anti-racism conference following an accusation that he was Islamophobic.
Free speech is often defined as a basic human right—but a report by the Joint Select Committee on Human Rights (JCHR) has limited the definition of free speech by declaring that it’s not an absolute right. It states that free speech should be restricted so that it is exercised in a way that does not cause harm to others.
In light of this, where should Higher Education (HE) providers and universities draw the line on free speech, while still encouraging an environment of tolerance and discussion?
Where does the controversy surrounding free speech stem from?
A 2015 American study found that US millennials are 40% more likely to support censoring of offensive statements about minorities compared to older generations. Perhaps this discrepancy between generations is due to the prevalence of social media and the sheer volume of content and opinions users are subject to, sensitising students to controversial opinions.
Minouche Shafik, the director of the London School of Economics (LSE) and former deputy governor of the Bank of England, explores this position, asserting that extreme views provide “clickbait” fuelled by the algorithms running social media platforms, with “anonymity reduc[ing] accountability and social media giv[ing] platforms to all”.
Unlike social media platforms, universities do not run according to predetermined algorithms and are not subject to the same filtering process. UK universities are free to determine their own free-speech policies in line with the law, yet this can be very difficult and complicated.
In April this year, sociologist Noah Carl had his fellowship at St Edmund’s College, Cambridge, terminated following the circulation of an open letter signed by more than 1,400 academics and students. The reason for discontent among his colleagues was his association with extremist and far-right outlets. His academic papers mostly consisted of research on political attitudes related to immigration and Brexit.
In response to the college’s decision to withdraw his fellowship, Carl has launched a legal challenge to “impose costs on an institution” that he feels “has buckled under activist pressure”. This decision to rescind his appointment leads to the question of whether or not academics should be penalised for their research topics—and to the bigger question of freedom of speech.
How do we define free speech?
Most people have an idea of what free speech means to them—we all understand the general premise, but its intricacies and limitations differ from individual to individual. “Freedom of speech in higher education should be upheld at every opportunity and should only be limited where there are genuine safety concerns, or it constitutes unlawful behaviour,” says David Isaac, an Equality and Human Rights Commission (EHRC) chair. Similarly, Candice James, the president of the #MeToo Support Society at Goldsmiths University, said: “Everyone should be entitled to their own opinion, whether we agree with it or not, as long as appropriate measures are taken to prevent this freedom of speech from becoming something violent or possibly harmful to some.” More often than not, a definition of free speech will include “but, “as long as”, or “however”, suggesting just how complicated and subjective it can be.
The status of universities as providers of higher-order evidence
Much of the controversy surrounding free speech at university arises from the idea that inviting a controversial speaker to such an institution will suggest their opinion is credible and deserving of respect and consideration. As a result, this supposedly higher-order evidence is extremely difficult to rebut.
For instance, part of the reason for banning Germaine Greer from guest lecturing at Cardiff University was due to the expected association between her supposedly transphobic views and the university institution. Had the university decided to go ahead with the event, the university may have been held accountable for lending credibility and substance to her views. Should a university institution, then, be able to enforce what it constitutes as controversial and distressing?
“It is more important than ever that universities and colleges put in place codes of practice to ensure freedom of speech thrives,'' said Diana Beech, director of the Higher Education Policy Institute, in a report. But this places a huge amount of responsibility on the university. Allowing individual universities to choose exactly how they wish to instigate freedom of speech runs the risk for this basic human right to become too restrictive.
An attempt to coordinate the universities’ pursuit of free speech
In February 2019, the Equality and Human Rights Commission published a guide on freedom of speech for higher education (HE) providers and student unions in England and Wales. The guide touches upon the relevant legislation and seeks to help HE providers and students’ unions reach a general consensus on freedom of speech. One piece of legislation included in the guide is Article 10 of the European Convention of Human Rights, which outlines what constitutes a restriction to freedom of speech. Restrictions include speech causing fear or provocation of violence, acts intended or likely to stir up hatred on grounds of race, religion or sexual orientation, speech amounting to a terrorism-related offence and causing person harassment, alarm or distress.
In addition to legislation, HE providers are also bound by legal duties that interact with freedom of expression. In compliance with the Prevent duty as part of the government's counter-terrorism strategy, CONTEST, a HE provider is required to set up initiatives to prevent people from being drawn to terrorism. This again leaves room for ambiguity, especially with regard to the definition of extremism. HE Providers must also comply with Public Spaces Protection Order that allows local authorities to penalise individuals if their conduct has had “a detrimental effect on the quality of life of those in the locality”.
An alternative to no-platforming?
Although universities are subject to a range of rules regarding freedom of speech, there is still plenty of room for manoeuvre. These institutions are able to interpret the legislation to fit their ethos and values.
A few universities have taken a firm stance against the creation and use of no-platforming policies. Peter Baran, the general manager of the Student Union of the School of Oriental and African Studies (SOAS) comments: “The SU does not have a no-platform policy and we do not think it is the best way of dealing with these issues. Individual students and societies sometimes have a different opinion on this topic, but we have not banned or censored any meetings in the past 20 years.”
As an alternative to no-platforming, some universities have created safe spaces to mitigate any damaging effects of freedom of speech. Baran defines safe spaces as a way for groups to create a “space that suits them for the purpose of their activities. This will include setting mutually-agreed ground rules before a meeting [so that they] are not triggering”.
Safe spaces have been heralded as important for mental health, where people can feel confident that if they air their ideas they will not go further. It could be assumed that safe-space policies refrain from banning free speech altogether, but rather move the conversation to somewhere more suited and offer appropriate guidelines on how discussions should progress.
The JCHR has criticised the concept of safe spaces for being too broad or vague, arguing that university is an environment where a range of opinions should be heard and explored openly and where minority views should not be barred from student-union premises.
Kenneth Lasson, a professor of law at the University of Baltimore, has explored this further in his book The Decline of Free Speech on the Postmodern Campus. He describes safe spaces as campus speech codes that limit first amendment rights. He includes in this category terms such as “trigger warnings” and “cultural appropriation”.
Many universities in the UK, such as Goldsmiths and SOAS, continue to promote safe spaces as a compromise to no-platforming controversial speakers.
The disparity between a Higher Education provider and a student union
It is commonly assumed that a HE provider is politically unbiased—that it is purely created to further human knowledge. On the contrary, a student union is likely to exhibit certain political biases.
This is where another complication arises in terms of free speech. The students’ union is subject to charity law, which is regulated by the Charity Commission. Under charity law, students’ unions may express political positions and launch campaigns on political issues, as long as these activities are legitimate and a reasonable means of furthering the charitable purposes. Overall, the students’ unions are only able to take a political stance in matters that affect “students as students”.
The ‘UCL, Cut the Rent’ campaign launched by the Student’s Union illustrates this point. Although the issue of raising rent prices is highly political and could potentially apply at a nationwide level, the UCL Student Union has made sure to focus the campaign explicitly on its campus and on its students.
In 2017, SOAS academics Simon Perfect and Alison Scott-Baumann argued in a report that the Charity Commission has a restricting effect on free speech, as it notifies students’ unions that they must be apolitical while discouraging them from hosting controversial external speakers. JCHR takes a similar stance, claiming that the Charity Commission’s approach to regulating free speech is problematic. The charity law in question is not easy to use—in places it is unduly restrictive and could deter speech that is not unlawful and does not take adequate account of the importance of debate in a university setting.
It would seem beneficial for HE providers and students’ unions to be subject to the same legislation and rules regarding freedom of speech in order to maintain consistency across the university. An agreed-upon consensus on freedom of speech across the university may help to reduce its ambiguity and encourage harmonisation of policies.
This discrepancy in free speech policies between HE providers and students’ unions is highlighted in the Free Speech University Rankings (FSUR) by Spiked magazine. Their findings were gathered from Freedom of Information requests and publicly-published minutes, policy documents and reports. In 2018, the report revealed that students’ unions were more likely to be ranked “red”, meaning they actively censor speech by banning certain views from being expressed on campus and/or ban specific texts, speakers and groups from campus on the basis of their content/views. 47% of Students’ Unions were assigned red, compared with 35% of HE providers.
At SOAS, for example, the university was ranked “green”—only its IT policy was flagged amber, indicating it “has chilled free speech through intervention”. However, the students’ union was ranked red, with an equality and diversity policy, a union dignity policy and their academic boycott of Israel being raised as a cause for concern. When asked to comment on these findings, Baran was quick to criticise the credibility of Spiked, claiming the magazine was fuelling “spurious and worthless clickbait” and creates content “purely for alt-right political purposes”.
Even if the FSUR’s report is prefabricated, their findings highlight a crucial point in achieving freedom of speech in universities—the need to create a harmonious approach to this basic right at all levels of the university. If history has taught us anything, is that there is no way of knowing which ideas will be pivotal for the further development of human comprehension and progress. Most famously, Malcolm X was banned from speaking at Queens College and the University of California and Arthur Miller was barred from speaking at the University of South Carolina.
Perhaps, it is worth closing off with a quote from Minouche Shafik, director of the London School of Economics (LSE): “Bubbles where the like-minded reinforce their prejudice are dangerous for open societies, which depend upon the clash of ideas. We need to provide a forum in which those clashes occur productively to advance human knowledge.”