On Saturday, punk-rap duo Bob Vylan took to the West Holts Stage, which was being broadcast live by the BBC.

Lead singer Bobby Vylan began led the crowd in political chants including “Free, free Palestine”, escalating to the more provocative “Death, death to the IDF” (Israel Defense Forces).

The BBC, caught off-guard by the live broadcast, quickly added an on-screen warning about “very strong and discriminatory language” but continued streaming the performance.

Within hours, the controversy had reached the Prime Minister, who condemned the performance, stating:

There is no excuse for this kind of appalling hate speech.

Culture Secretary Lisa Nandy demanded an urgent explanation from the BBC about what vetting had been done before the performance.

On the Today programme this morning, Nick Robinson raised an interesting question – what counts as free speech, even if it’s offensive to many? And what would amount to an offence, therefore putting it outside of “freedom of speech within the law”?

Intent and context

Jonathan Hall KC (who is the Independent Reviewer of Terrorism Legislation) explained that prosecuting speech offences depends heavily on proving intent – prosecutors would need to demonstrate that the performers either intended for violence to occur as a result of their words, or believed it might happen.

He noted that this is particularly challenging in creative contexts like festival performances, where many rap artists have historically used violent rhetoric without facing prosecution. The key legal test would be whether the performers knew Jewish people were in the audience and intended to harass them through their statements.

Drawing distinctions between different contexts, Hall suggested that the same chant delivered directly at Jewish individuals in a public area would be far more likely to result in prosecution than words spoken during a stage performance.

He acknowledged the seriousness of calling for the death of any group, particularly given that Israeli citizens are conscripted into the IDF, making such statements potentially equivalent to calling for civilian deaths.

But Hall expressed scepticism that the case would meet the evidential threshold for prosecution. He characterised it as a “relatively short episode during a band performance” and suggested the matter was likely more for the performers’ consciences than for criminal courts.

Back on campus

So what might we learn for campus contexts? Let’s imagine that a student society wants to stage a performance by a Bob Vylan. The society is a part of the SU, and the university has to take reasonably practicable steps to secure compliance from the SU with its freedom of speech code of practice.

We first need to work out if Bob Vylan would count as a visiting speaker. If the society extends the invite specifically because of their political views – particularly those expressed during recent performances – then the duo would likely be classed as “visiting speakers” under the OfS definition.

While the format of the event may be a musical performance, what matters under the guidance is not the medium but the purpose of the invitation. The definition captures any individual invited to speak – or in this case, to perform – or the purpose of expressing their views.

Given that Bob Vylan’s lyrics and live shows are overtly political, and if the society is booking them as an act of political solidarity or to amplify a specific cause, the event crosses into the domain of regulated expressive activity.

This appears to mean the SU (as the university’s proxy) would be under a duty to apply the free speech code of practice – conducting a risk assessment, keeping appropriate records, and ensuring any decisions taken are compatible with the three-step legal test set out in the guidance.

Let’s imagine that Bob Vylan were successfully prosecuted – for example, under the Public Order Act 1986 for incitement or stirring up hatred – and the specific chants or lyrics used at Glastonbury were judicially determined to be unlawful.

If Bob Vylan gives clear and credible assurances that they will not repeat the material that was found unlawful – no repetition of the Glastonbury chants, and no other material that would breach the relevant legislation – then the new performance proposal has to be treated as distinct.

Speech is presumed lawful unless the content planned for the new event is itself unlawful. The conviction attaches to past speech, not to the performers themselves. So if the performance is lawfully restructured, OfS Step 1 “is the speech within the law?” is satisfied.

Are there reasonably practicable steps to secure the speech? The SU can require Bob Vylan to submit a set list or agree to conditions excluding specific content, include a contractual clause prohibiting repetition of the unlawful chants, put in place a monitoring plan during the performance, and include pre-event messaging to explain the context and limits.

The guidance explicitly states that institutions must not deny lawful speech just because of a person’s past, provided future speech is lawful.

An outright ban on Bob Vylan performing would almost certainly be disproportionate if they have made a binding commitment to stay within the law. Denying them access to a platform on the basis of past unlawful speech alone – without a clear and present risk of repetition – would likely breach the provider’s legal duties under the Act.

But – as seems much more likely – now let’s assume that the police investigation is quietly dropped.

For OfS Step 1, while controversial and offensive to some, if their performance did not cross the threshold into unlawful speech (incitement to violence or racial hatred under the Public Order Act 1986, Terrorism Acts, or harassment legislation), mere offensiveness, reputational risk, or public controversy is not a lawful ground to restrict speech. So unless specific lyrics or planned content cross a legal line, Step 1 is satisfied.

For Step 2, the SU or university could take steps such as holding the event in a ticketed venue, ensuring appropriate stewarding or security, agreeing terms with the artist that prevent unlawful or explicitly inciting content, or offering context and support to students likely to be affected.

OfS explicitly states that reputational risk, internal objections, or a controversial viewpoint are not valid reasons to deny a speaker. And any response should focus on the time, place, and manner of the event – not the views expressed. Provided standard mitigations are in place and the event can be safely managed, the duty is to proceed. Canceling the event without exhausting these options would likely breach the duty.

If there were credible threats to physical safety – for example, targeted threats of violence at the venue – the provider could consider restrictions, but only if proportionate and clearly lawful. Even where physical safety is cited, alternatives (e.g. enhanced security, livestreaming, limiting attendance) must be considered before denying the event altogether.

A read of the guidance suggests that universities or SUs should engage with affected students (e.g. Jewish societies or chaplaincies) to listen and respond seriously to their concerns, offer support and safeguarding (including alternative spaces, welfare briefings, or optional attendance), and could adjust the time, place, and manner of the event (e.g. controlled entry, code of conduct, trigger warnings, opportunities for counter-speech), but none of those are cancellation.

The guidance anticipates situations where one group’s self-censorship or distress may result from another group’s speech (see examples about protests or heated dialogue). It encourages mitigating the chilling effect – but not by cancelling events. That would amount to prioritising subjective discomfort over legally protected expression.

The guidance also suggests that the presence of Jewish students on campus who feel unsafe should trigger pastoral and procedural support, but not a restriction on the event, unless the content or context rises to the level of unlawful harassment. Step 2 remains satisfied, with appropriate safeguards.

The problem is that alternative interpretations are available.

Convention compliance

If a students’ union or university were to apply the Strasbourg test, as discussed on the site here, rather than the linear framework set out by OfS, it could very well reach a different and more Convention-compliant decision on whether to permit a performance by Bob Vylan – particularly if Jewish students raised credible concerns about safety, dignity, or discrimination.

OfS’s guidance treats speech as lawful so long as it doesn’t breach UK criminal or civil law – placing the entire burden of balancing rights and assessing proportionality at the very end of the process, and only if no “reasonably practicable steps” can be taken to enable the speech.

Strasbourg jurisprudence insists that the meaning of “freedom of speech within the law” cannot be determined solely by the domestic statute book. Article 10(2) of the European Convention on Human Rights requires that from the outset, speech rights be balanced against other rights – like Article 8 (privacy and dignity) and Article 14 (non-discrimination) – with careful attention to necessity and proportionality.

Under that broader framework, speech that causes serious distress, marginalises groups, or creates discriminatory environments – without necessarily breaching criminal law – can nonetheless lose the protection of Article 10 altogether or be legitimately restricted.

That’s particularly important where the event in question is not academic in nature. Unlike academic speech, which enjoys elevated protection under the Convention due to its democratic importance, artistic or political expression in a student society context – like a Bob Vylan gig – may be more easily outweighed by competing rights, especially when those rights involve protecting the dignity and equal participation of minority students.

If Jewish students come forward to say they feel unsafe or harassed, that cannot be dismissed as mere pastoral concern. In Strasbourg terms, it is a claim of rights infringement. Under the logic, universities and SUs have to weigh claims from the beginning, not as an afterthought. They must ask – is hosting this event necessary in a democratic society? Does it serve a legitimate aim? Is there a less intrusive way to achieve that aim? And does the harm to students’ rights outweigh the benefit of upholding the speaker’s platform?

An SU/university might therefore conclude that, even if Bob Vylan’s performance does not break UK law, it would nonetheless risk infringing students’ Article 8 and 14 rights, particularly if the content is likely to degrade or exclude those students from fully participating in campus life.

Such a conclusion could justify restricting the event from the start, based on a proportionality assessment under the Human Rights Act. But under the OfS model, doing so could trigger regulatory consequences, as the provider may be found in breach of its free speech duties for failing to take all “reasonably practicable steps” to enable the speech.

It’s worth remembering, I think, that the event that kicked off a process that saw engagement with the National Union of Students banned by government was when it invited rapper Lowkey to perform at its national conference, despite his controversial statements about Israel and Palestine.

When Jewish students raised concerns, they were told they could sit in a safe room. The government’s response was unequivocal – they cut all ties with NUS, and Universities Minister Michelle Donelan said she was:

…horrified some Jewish students might feel ostracised by a group that should be a voice for all.

Unless I’m missing something, if the incident was a campus one, under the OfS free speech guidance a students’ union would have been required by the university – itself required by the regulator – to host Lowkey once he’d been invited.

It may require a case of that sort before we get close to government and/or regulators actually admitting to the mess they’ve created.