The idea of ‘freedom of expression’ is being kicked around a lot at present, with threats that fines, reputational damage and even de-registration will be meted out by the new Office for Students (OfS) on those universities that it believes are failing to protect free speech and academic freedom sufficiently.
Such posturing is not a productive way forward. Free speech should form part of an anatomy of judgement, or in other words, an ongoing process not a static position – how we decide what we believe and how we know what we can say.
As any lawyer knows, freedom of speech is protected by law and therefore it should be protected on campus. Indeed, since 1986 universities have had a legal requirement to have ‘particular regard’ to the need to uphold freedom of speech.
Despite the hyperbole, there’s little in the OfS proposals that officially changes the duties or laws around free speech, and the Parliamentary arithmetic makes any such changes unlikely. However, what a more ‘pro-active’ sector regulator may do on this topic remains to be seen, and initial noises are not reassuring.
Prevent can prevent free speech
In 2015 the Counter-Terrorism and Security Act was passed, and the latest Prevent Duty guidance developed for ‘specified authorities’ to implement it, along with specific guidance education providers. Some universities are interpreting the Act lightly, but others seem to be implementing the requirement more forcefully than it actually mandates, with HEFCE’s accompanying monitoring framework framed in prescriptive terms.
Importantly, this all conceals three factors that should counterbalance any overzealous implementation of the Prevent Duty guidance, as Hugh Tomlinson QC and Scott-Baumann explained in 2016:
- the purely advisory nature of such guidance;
- the reference in the 2015 Counter-Terrorism and Security Act to the 1986 Education Act, which already instructs university governing bodies (but not students’ unions, which are exempt) to have ‘particular regard’ to free speech (in law, ‘particular’ is stronger than ‘due’ – with the former appearing in the 1986 Act and the latter in the 2015 Act);
- the 2010 Equality legislation that instructs public bodies such as universities to protect staff and students from discrimination, based on protected characteristics such as ethnicity and belief. Indeed one conclusion emerging from our ongoing research was that universities should conduct equality impact assessments as part of their Prevent plans.
One of the Charity Commission’s main functions is to ensure the public can trust charities. The Commission regulates charities, so they abide by their ‘charitable purposes’ and don’t act in ways that might bring the charity sector into disrepute. This has created restrictions on what student union officers can publicly say and do. Our research has indicated that some student union officers feel caught in a bind – they are elected by students to represent them on key issues, but as charity trustees, they cannot make public statements on issues that do not affect students ‘as students’.
Do we need more regulation?
These two existing policy aims – the prevention of terrorism and the protection of charities from ‘reputational damage’- are often combined to inhibit debate and visiting speakers. This diminishes free speech and academic freedom.
There are other pressures upon students, from their own intensive social media use to the naming and shaming tactics of external media outlets and think tanks, e.g. Spiked’s traffic light system for logging perceived infringements of free speech at university. Much of this data collection is methodologically unsound, being based upon a deficit model that selectively seeks episodes to ridicule. Meanwhile, it deliberately ignores the (far more frequent) successful outcomes of the daily challenges facing students’ unions and societies, as they negotiate different claims on campus life and ‘free speech’.
Free speech about what and for whom?
Free speech presumably still forms part of the cultural perception of British university life because there is such a fuss about its perceived loss. Yet little noise is coming from universities about the fact they are simultaneously being blamed for suppressing free speech and encouraging it. For many staff and students, this is not a problem as they have no interest in risking controversy.
But that means we are not undertaking an anatomy of our own judgement. How do we decide what we believe and what we can say? This general lack of a constructive, open or balanced discussion about restraints on free speech, leaves many dangerous assumptions unchallenged. There is, for example, no evidence that students become radicalised on campus to commit acts of terror, there is only hearsay and powerful rhetoric. On the contrary, as Heath-Kelly shows in her masterful survey of the decade of Prevent 2007-2017, we are all now considered to be vulnerable and at risk of being radicalised. However, the lack of hard evidence appears unimportant in a context of often false and skewed information that can seem to encourage paranoia, racism and xenophobia.
If we set aside the contested idea of free speech, what does the reality look like? The reality is bizarre: some media, think tanks and even the official government position all rely heavily upon the twin and contradictory assumptions that, on the one hand, students are sensitive snowflakes and should toughen up, and on the other, that students must be protected from radical ideas on campus.
A free speech success story
On the vast majority of occasions, universities, students’ unions and students negotiate contrary viewpoints successfully, even if it can be messy. Surely this is a precondition for a viable university education? Of course students, like everyone, occasionally make regrettable decisions, but their struggles (for example) with diversity, identity, gender, values, politics and sexuality, are not theirs alone. Such discussions are being conducted on social media by everyone, all of the time, and thus students do not deserve more censure than the rest of us.
Universities do sometimes cancel events, perhaps due to practical matters such as security costs, or perhaps because of the (non-statutory but oppressive) Prevent Duty they cannot ‘fully mitigate’ the potential risk that the views expressed at an event might be extreme. Very few external speakers are disinvited because of this. Despite the media headlines, few speakers are banned by student unions. The increasingly lampooned term ‘safe space’ is most commonly used in popular parlance by staff and students discussing the politics of risk and vulnerability on campus.
Command and control
Our research shows that the real risks to free speech come, not from the ‘snowflake generation’, but from government-originated initiatives. Specific pressure is applied to Muslim student groups and those interested in the Middle East. Our ongoing research appears to show that students and staff, Muslim and non-Muslim, are already self-censoring their discussions and activities as a result.
So, if universities are punished for suppressing free speech, they are being punished for following orders. Things look likely to get worse with a more powerful, political and interventionist OfS. So who stands to gain and who stands to lose? The greater powers to impose conformity will deliver new authority.
Such pressure introduces a powerful new element of uncertainty, to add to all the other difficulties that are currently destabilising the higher education sector, such as the ease of entry for new competitors or constant tinkering with funding.
The potential for free speech on campus
We must ensure this contradictory situation has a good outcome. The often one-sided and artificially-generated debate about free speech can prompt useful questions about limits and powers, and so can help us to initiate a proper debate about the anatomy of judgement i.e. looking carefully at how we make decisions. Free speech should not be a binary position (‘I’m right, so you’re wrong’), it should be a process of ongoing negotiation.
We can never have fully free speech. Spinoza counselled against state attempts to control citizens’ thoughts, while inviting the state to decide what is troublesome to peace. Mill elaborated on the harm principle, which attempts to balance the right to speak with the right to be protected. No-one has yet developed a satisfactory model of free speech, but we can aspire to a form of self-expression that allows an appropriate anatomy of judgement: reciprocity, the ambiguity of reality, the usefulness of evidence, the warming power of humour, the need to hear others, and the necessity of understanding one’s own preconceptions.
To make our world better, we need to have access to debating skills, experience of difficult meetings, the ability to deconstruct the rhetoric of polemical speakers and populist demagogues, and the confidence to use such powers for engaging with powerful players. As we appear to be entering a time of unprecedented regulation of the higher education sector, universities still have the power, the authority and the knowledge to provide all of these. We’ve never needed them more.
A call to action
The Joint Select Committee for Human Rights is taking evidence on free speech in universities now. The deadline for submissions is this Friday, 15 December 2017. This is a valuable opportunity for all university leaders, managers, staff and students to exert their right to free expression, before we have worse alternatives forced upon us all, again.