Free speech on campus: moving the conversation forward

The idea that free speech is under threat on university campuses is remarkably persistent (see this latest example from The Independent), regardless of the paucity of actual evidence, as confirmed by this thorough BBC fact check.

Whether there is a problem or not, the challenge for the sector is that this is the first time there has been a combination of (a) a highly diverse campus body, set against the backdrop of a highly divided country, giving rise to many potential high profile areas of dispute and controversy; and (b) a vehicle, through the Higher Education and Research Act, the OfS and the Regulatory Framework, for the state to seek to intervene in and influence the exercise of free speech.

Unless, therefore, the sector is able to dispel the complaints about restrictions on free speech, it faces the risk of ever-increasing and intrusive government intervention. In the US, we have seen suggestions that funding should be linked to a demonstrable commitment to free speech (as the Trump administration defines it), and in Canada that there should be a state-imposed universal code of practice on free speech.

So what could universities do to try to avoid these unappealing prospects?

The area is one where leadership and proactivity rather than just firefighting may reap rewards. That means being visible and vocal about the institution’s expectations around free speech and the values that underpin the exercise of the right: respect; evidence-based enquiry; and the fundamental value of diversity of thought, experience and insight.

Universities may benefit from helping to shape the debate about what free speech on campus should be for, and to find ways to encourage civil and informed discourse as opposed to the endless, unproductive and pointless provocations that are now seen by some as the apogee of a commitment to free speech.

The third is to encourage students to learn that with rights come responsibilities, and the right to free speech is no different. The dial seems to be moving from “freedom of speech includes the right to offend” to “freedom of speech means the right to cause great offence without consequence”. Recognising the impact of words, actions and behaviours on others, and therefore presenting ideas accordingly, could be seen as a necessary part of being the responsible and engaged global citizens universities want to produce.

How might these steps be undertaken in a way that is compatible with ensuring that the institution complies with the complex legal duties around free speech? These legal duties comprise requirements to ensure free speech and freedom of expression on the one hand, and a range of countervailing duties and requirements, such as the duty not to harass or victimise groups with protected characteristics and the general equality duty on the other.

Universities may benefit from ensuring that the caveats embedded within the law relating to free speech are better and more widely understood.

The duty is to ensure free speech so far as is reasonably practicable, not however and whenever you want. What is reasonably practicable will be assessed against the background of the diverse, pluralist campuses of organisations whose objects are (broadly) to advance teaching and learning for the public benefit. A university is not a “shock jock” radio channel where the more controversial the comments the better the ratings, irrespective of accuracy or substance. And not, whatever the Minister may think, “in loco parentis”, a glorified school with the duty of protecting minors from shocking or offensive material.

Codes of Practice set out what universities consider it reasonably practicable to do in ensuring free speech - the need for advance approval, notice and risk assessments for example - but could universities use them to do more to shape expectations about the considerations those hosting events should give to the kind of events they organise? What is the purpose of the event and what format best delivers the purpose? Is it merely a platform for a speaker to propagandise or is it proper enquiry into a subject, with countervailing evidence being considered? Certainly universities could do more to spread awareness of the existence of the Codes of Practice. In our experience, the duty in the Education Act 1994 to circulate the Code annually to all students is more honoured in the breach than the observance.

The second caveat is that the free speech must be within the law. Some things are obviously within or outside the law, but there are often grey areas. Universities therefore need to be able to explain what the law is and why they consider something to fall outside it. What the law is likely to consider permissible will reflect both the nature of the campus as a place of free enquiry and the nature of the event. “Platformed propagandising” is more likely to risk falling foul of public order or hate speech laws or to risk amounting to harassment on the grounds of protected characteristics than a discussion presenting a rounded view of a subject.

The third caveat is that the duty is to ensure freedom of speech for all: students, staff, speakers, other visitors. Too often the focus is on the free speech rights of the speaker. But the duty means allowing peaceful protests, dissent and challenge of speakers and participants too. Universities are full of people able to hold the intellectually dishonest or feeble to account for distasteful opinions and views, and no-one can insist on speaking only if they get an easy ride. But the key is the rigour of challenge, which requires skill, insight and expertise, and this may not be something that can necessarily just be left to the audience or the organisers.

With a combination of these approaches, it is to be hoped that the sector may yet regain some control of the narrative around free speech.

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