I do not like what you say, but I will defend to the death your right to say it

Anyone listening to Radio 4’s “Today” programme this morning will have felt some pity for the Director of Education at the LSE who reiterated the apology to the students who wore t-shirts depicting Mohammed and Jesus at the SU Freshers’ Fair in October and were threatened with removal. Following receipt of legal advice, the students issued a formal complaint against their treatment. LSE responded by acknowledging that, with hindsight, the wearing of the t-shirts did not amount to harassment or breach LSE regulations or policies. I assume the legal advice provided to the students was that the LSE’s original response was an unjustified interference with their right to freedom of expression.
My rush of pity was for university staff without a legal background seeking to navigate the Scylla and Charybdis of freedom of expression, on the one hand, and duties of care, protection from harassment and the general equality duty to foster good relations between people who share a protected characteristic and those who don’t, on the other. 
For a lawyer, the basic principles are relatively straightforward, though it must be accepted that applying the principles to concrete situations and balancing competing rights can sometimes be challenging. It is important nevertheless to understand those principles, as follows:
Universities must act in a manner compatible with the rights guaranteed to under the European Convention on Human Rights (ECHR).
All legislation (including domestic laws and policies) must be read and given effect in a way which is compatible with the ECHR rights.
All ECHR rights are important, but freedom of expression enjoys a special position under the ECHR. It is viewed as securing the right of the citizen to participate in the democratic process and is a pre-requisite for enjoying many of the other ECHR rights. Consequently, it should be interfered with only as a last resort, if there are clear and justifiable reasons for doing so (e.g. to prevent disorder or crime or incitement to hatred or violence and hence to protect the rights of others).
The right to freedom of expression applies not only to information or ideas that are well received or regarded as inoffensive, but the courts have concluded that it also applies to those ideas or information that shock, offend or disturb. Those are the demands of a pluralistic, tolerant and broadminded society, without which there is no democracy (Handyside v UK (1979-80) 1 EHRR 737).
 
Other judgments have indicated that the right of freedom of expression:
  • establishes a market place of ideas which promotes the search for truth;
  • promotes and ensures individual development and self-fulfilment;
  • derives from the right to human dignity and to equality.
Universities are environments that seek to achieve the very outcomes envisaged by the right to freedom of expression. It would be a shame if they were diverted from those noble aims by a misunderstanding of the law.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E:
geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com      

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