The government should impose a duty of support for free speech in universities

INTRODUCTION

In May 2021, the government introduced the Higher Education (Freedom of Speech) Bill. The bill strengthens the legal duties on higher education providers in England to protect and promote freedom of speech and academic freedom [Ref: Department for Education]. The impetus for such measures is the belief that ‘cancel culture’ is undermining free speech within universities [Ref: inews]. The education secretary, Gavin Williamson, said it is a basic human right ‘to be able to express ourselves freely and take part in rigorous debate’ [Ref: Rt Hon Gavin Williamson MP].

Universities and students’ unions will face strengthened legal duties to ‘take reasonably practicable steps’ to secure and to promote freedom of speech ‘within the law’ and academic freedom. A new ‘free speech champion’, Professor Arif Ahmed [Ref: BBC News], will actively ensure universities comply with their duties and investigate alleged breaches, with institutions liable to face fines of up to £500,000. Academics, visiting speakers and students will gain a legal right to seek financial compensation [Ref: Varsity].

But critics insist that threats to free speech are exaggerated and there is ‘no evidence of a freedom-of-expression crisis on campus’ [Ref: BBC News]. Others argue that the most serious threats to free speech actually come from the government and university managers [Ref: BBC News] and that the new measures in fact themselves represent a threat to academic freedom and free speech [Ref: Guardian]. Even those sympathetic to the claim that universities face a free speech crisis say censorship is a deep-seated cultural trend that cannot be defeated with more bureaucracy [Ref: UnHerd].

In essence, this debate is about the extent to which free speech is under threat in universities and, above all, whether it is the role of government to intervene in universities to promote it.

IN CONTEXT

Free speech matters 

There are many different views about what free speech means and why it is important [Ref: Free Speech Champions]. Historically, important gains – from religious freedoms and civil rights to scientific advances and artistic innovations – have often been associated with the ability to air different ideas and debate them openly [Ref: Speakers’ Corner Trust]. In a speech in December 2022, Professor Susanne Baer, a justice of the German Federal Constitutional Court, argued that ‘science and enlightenment in the truest sense of the word – encouraging critical reflection, debate, and a tolerance for differences’. [Ref: Freie Universität Berlin] Consequently, free speech is often seen as an important ideal and even the lifeblood of thriving democracies.

However, many people today argue that free speech is often abused and amounts to providing a platform for hate speech or silencing minorities. Free speech, they say, is not a license to speak with impunity. They also argue that claims about censorship have been exaggerated. [Ref: Guardian]. Recent proposals advocate extending protections for minority groups based by race, religion, sexual orientation, disability and transgender identity [Ref: Law Commission] while the government looks to ‘protect’ especially young people via new safety measures to control harmful online content [Ref: BBC News]. 

But defenders of free speech worry that constraints on what can be said or read curb the spirit of free inquiry, meaning young people are denied the chance to develop intellectual independence and maturity through unregulated argument and debate [Ref: Telegraph].

Free speech in universities 

In higher education, such conflicts are amplified. The ‘ideal’ of the university remains intellectual exploration through experimentation with ideas and critical debate [Ref: University Affairs]. But for some time, universities and students’ unions have sought to protect students from so-called dangerous or offensive views through ‘no platforming’ certain speakers [Ref: inews]. But in recent years, many students’ unions have adopted ‘safe space’ policies that go much further, setting out how participants should behave in meetings and restricting views or words lest attendees feel ‘unsafe’. Speakers, for example, expressing a conservative outlook, pro-life views or feminist ideas, that would previously be judged uncontroversial – or at least worthy of debating – have been banned, as have some comedians and even pop songs. [Ref: Guardian]. 

Advocates for safe spaces say they help students take risks and engage in intellectual discussions about topics that may feel uncomfortable debating [Ref: Healthline] and that they help students grow and learn because they feel their voice is heard [Ref: UCL]. Opponents say students simply want the ‘right to be comfortable’ and that ‘no platform’ policies restrict those whose views don’t fit with the prevailing ‘groupthink’ [Ref: Spectator]. According to such critics, restricting about ideas or suppressing certain viewpoints subverts the very foundations on which a tolerant and liberal university is constituted [Ref: spiked].

However, the nature and number of restrictions and their impact is disputed [Ref: House of Commons Library]. The 2020 University Free Speech Rankings found 86 per cent of universities to be either ‘restrictive’ or ‘moderately restrictive’ [Ref: Civitas]. But a study of 136 universities, encompassing more than two million UK students, uncovered just a small number of incidents [Ref: BBC Reality Check], while the Joint Committee on Human Rights found a widespread view that free speech was ‘not overly inhibited’ [Ref: Independent]. 

Some welcome the new legislation as the means to persuade institutions, student bodies and academic staff that ‘open-minded discussion, moral curiosity and airing of diverse political viewpoints are crucially important to academic life’ [Ref: Mail Online]. After all, can universities be places to test ideas, through open inquiry and critical debate, if initiatives such as ‘decolonising the curriculum’ dictate research and course content [Ref: Telegraph] or when university authorities ban seminars on trans rights or the Holocaust? [Ref: The Times]. 

The Free Speech Bill

Not surprisingly in the circumstances, the motives, efficacy and impact of the proposed new legislation are all contested. For supporters, tougher new duties and an active free speech champion are a significant advance over existing protections which are either ignored or deemed less important than protecting students from ‘offensive’ views [Ref: Telegraph]. They say proactive regulations and the power to levy fines will incentivise universities and students’ unions to uphold free speech and help resist academics, students, activists, or twitter mobs who want to stifle debate [Ref: The Times]. One organisation, which in the past year has supported over 100 people affected by campus restrictions, believes that in almost every case the individuals affected would have been in a stronger position if the new law was already in place [Ref: Free Speech Union].

But sceptics warn of a ‘legal minefield’ and say ‘nobody has really thought through how it will be enforced’ [Ref: THE]. The Russell Group of 24 major universities say freedoms for teaching and research staff are already protected through clear contractual arrangements, and new legislation merely adds an unnecessary layer of bureaucracy [Ref: Guardian].   

One issue is whether free speech and academic freedom can simply be legislated into existence [Ref: THE] or requires winning wider cultural [Ref: Index on Censorship] or political arguments [Ref: The Critic]. Some say the main problem is not sporadic examples of ‘cancellations’ or ‘no platforming’, but pervasive cultural pressure to conform to fashionable orthodoxies. For example, fewer than four out of 10 Brexit-supporting students say they would be comfortable defending that view around their peers [Ref: The Times] while 59 per cent of Conservative-supporting students say they are reluctant to express their conservative beliefs at their university [Ref: King’s College]. Academics also report feeling unable to openly express views, such as disagreement with Critical Race Theory, and half of conservative academics self-censor in research, teaching and discussion. One study concluded that self-censorship ‘appears to make a mockery of any pretence by universities of being paragons of free speech’ [Ref: Quillette] although others say conservatives are less upset about free speech and more about being challenged over their views [ref: Guardian].

However, some warn that overregulation risks undermining the autonomy of academic institutions and the freedom to criticise government policy, which is vital to sustain a culture of academic freedom [Ref: Conservative Home]. What’s more, one academic highlights the encroachment of powerful political, economic and administrative forces which undermine academic autonomy and say the government is engaged in a right-wing defence of ‘academic freedom’ that masks a ‘McCarthyite agenda’ [Ref: Guardian]. For the University and College Union (UCU), the main concern is with ‘the current government’s wish to police what can and cannot be taught at university’ [Ref: Guardian].

Where are the boundaries of ‘protected free speech’?

A tricky question is what sort of speech and expression should be protected and the lengths universities should go to uphold protected speech. For the government, ‘it is important to distinguish between lawful, if offensive, views on the one hand and unacceptable acts of abuse, intimidation, and violence on the other’ [Ref: Department of Education]. On a range of contentious issues, the public – including 18- to 24-year-olds and across political boundaries – support allowing controversial speakers on campus, even if they don’t agree with their views. But this ‘does not signal approval of a libertarian free for all’ [Ref: FE News]. 

Take the issue of antisemitism, where education secretary Gavin Williamson is pressuring universities to adopt the International Holocaust Remembrance Alliance (IHRA)’s definition of antisemitism. Universities that have refused to adopt the IHRA definition object that it would interfere with the principle of academic autonomy and conflict with their legal requirements to uphold freedom of speech [ref: Guardian]. And how should universities treat the issue of Holocaust denial? [Ref: Mirror]. Some worry a duty of free speech gives denial a green light [Ref: Joe]. Others say the duty for universities is to uphold free speech ‘within the law’. Given that Holocaust denial is not illegal in the UK, then it should not be censored or ‘no platformed’, not least because, some argue, free speech is actually the means to defeat hate [Ref: Areo].

Another thorny area is whether universities should uphold the right for gender-critical feminists to criticise ideas around gender identity, especially given that gender identity is not a protected characteristic [Ref: Spectator]. 

Government policies and laws also seem to contradictory when it comes to the Prevent counter-extremism strategy, under which universities have legal obligations to stop people being ‘drawn into terrorism’. Evidence suggests Prevent is one of the biggest reasons why students are targeted and events are cancelled, and it also limits texts and topics students can access [Ref: Independent]. Is the government really committed to the freedom to say, hear and read what we choose when some say Prevent is the biggest threat to free speech on campus? [Ref: Guardian]

This debate encompasses a wide variety of issues: from the existence of a ‘free speech crisis’ at universities to the effectiveness of government legislation, from the duties Universities have to promote debate to the worry that free speech can be an excuse for hatred, and the difference between free speech and academic freedom. But it boils down to a simple question: do we need to protect free speech on campus and, if so, is using the law a good way of doing so?

ESSENTIAL READING

It is crucial for debaters to have read the articles in this section, which provide essential information and arguments for and against the debate motion. Students will be expected to have additional evidence and examples derived from independent research, but they can expect to be criticised if they lack a basic familiarity with the issues raised in the essential reading.

FOR

Why we support university ‘free speech’ bill
Toby Young Politics.co.uk 14 June 2021

Universities to comply with free speech duties or face sanctions
Gavin Williamson UK Government 12 May 2021

The Freedom of Speech Bill is a huge step towards saving the soul of university education
Eric Kaufmann Telegraph 12 May 2021

Free Speech – Union Higher Education (Freedom of Speech) Bill
Various Authors Free Speech Union 12 May 2021

Our right to free expression is in crisis – can we call ourselves a democracy if we don’t encourage open debate?
Frank Furedi Telegraph 30 December 2019

AGAINST

The Government is in a mess with its free speech bill – it has already sabotaged its own legal definition
Ian Dunt inews 21 May 2021

Free speechers are missing the point
Ella Whelan The Critic 13 May 2021

Campus free speech law in England ‘likely to have opposite effect’
Richard Adams Guardian 12 May 2021

To bolster free speech in universities, we need laws taken off the statute book, rather than added to it
Emily Carver Conservative Home 5 May 2021

Why is the Government talking about uni free speech when students can’t pay their rent?
Danny Shaw The Tab 16 February 2021

IN DEPTH

Students Must Stand Up for Their Professors’ Free Speech
Rob Lownie Areo 24 May 2021

What is freedom of speech?
Free Speech Champions

The law can’t end the culture wars
Adam King UnHerd 13 May 2021

This so called culture war is a phoney one
Jack Harvey WonkHE 7 August 2020

It’s 1986 all over again as free speech on campus gets a bill of its own
Jim Dickinson WonkHE 12 May 2021

The free speech crisis is not a right-wing myth
Frank Furedi spiked 12 March 2021

The myth of the free speech crisis
Nesrine Malik Guardian 3 September 2019

The free speech panic: how the right concocted a crisis
William Davies Guardian 26 July 2018

The Coddling of the American Mind
Greg Lukianoff and Jonathan Haidt Atlantic 1 September 2015

Free speech is so last century. Today’s students want the ‘right to be comfortable’
Brendan O’Neil Spectator 22 November 2014