The government has proposed forcing universities to do more to protect free speech. The proposals have big limitations, argues Simon Perfect.

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It’s become a common–place that freedom of speech is under threat at universities. Usually this is said to be due to student activities like ‘no platforming’[1] and ‘safe space policies’.[2] Spiked, an online magazine, uses an index to measure the issue and claims that 63.% out of 115 British universities are now hostile to freedom of speech. The media is obsessed with this narrative, and not just because it sells. Freedom of speech has become the sacred principle of our times, and universities are seen as important symbols of the values of liberal democracy. Our worry that they are becoming less free taps into fears that we are rapidly losing something of ourselves.

The government has decided the situation is serious enough to require intervention. In October Universities Minister Jo Johnson proposed that the new regulatory body for Higher Education, the Office for Students, should have new powers to hold universities to account to ensure that freedom of speech within the law is upheld by students, staff and student societies. Writing in The Telegraph, he said that student activities like “no platforming”, “safe spaces” and “the drawing up of ever more extensive lists of “trigger” words” are restricting the freedom of speech of some people on campus. Too many groups “have sought to stifle those who do not agree with them”. Shielding young people from “controversial opinions” that challenge their beliefs or make them “uncomfortable” is a “slippery slope” to a more dangerous, intolerant and uncreative society.

I have been conducting research on issues affecting freedom of speech on campus, so am interested in these proposals.[3] I agree with Johnson’s strong defence of freedom of speech. Students must have the right to protest against speakers whose ideas they find abhorrent – but they should do so in a way that still allows those ideas to be expressed, as long as they are within the law. Protesting outside an event rather than inside may be less effective at silencing your opponent, but by permitting your opponent to speak you protect the principle which allows you to protest in the first place.

But Johnson’s concerns are not just about the etiquette of student protests. He is concerned about a general culture of students restricting speech they find disagreeable; and he thinks there needs to be an external body regulating how ‘free’ or ‘unrestrained’ a university is in terms of open debate. This worries me, for three reasons:

1) the proposals seem highly impracticable in the current legal context and may have serious adverse effects;

2) they are shaped by a simplistic narrative of moral crisis

3) they ignore the role of non–student factors in potentially stifling freedom of speech on campus, particularly counter–extremism policies.

The proposals are impracticable, are shaped by a simplistic narrative of moral crisis, and ignore the role of non–student factors in potentially stifling freedom of speech on campus.

What do students think about free speech?

It is worth noting at the outset that most students do feel free to express their views on campus. As Johnson acknowledged, a survey conducted last year (by the Higher Education and Policy Institute, HEPI) found that 83% of students feel free to express their views.[4] And, perhaps contrary to popular assumption, since the 1980s universities in England and Wales have been required to “take such steps as are reasonably practicable” to uphold freedom of speech within the law for students, staff and visiting speakers.[5] There’s no indication that university governing bodies don’t take this duty very seriously; after all, like Johnson, they rightly recognise that freedom of expression and academic freedom to express, explore and challenge views dissenting from society’s orthodoxies are core to the purpose of the university. Students’ unions recognise this as well. A survey of 50 major unions in March 2016 found that none had banned a speaker in the past year. Some events were postponed while checks of the speaker’s credentials were carried out, but (at least according to the unions themselves) no one was prevented from speaking.

But while 83% of students feel free to share their views openly without restriction, according to the HEPI 2016 survey 12% do not (4% “absolutely not”).[6] We don’t know who these students are, but we could make a guess: the small minority (15%) of students who voted for Brexit; those with politically or socially conservative (including conservative religious) views; those who are supporters of Israel’s policies on Palestine.

Moreover, Johnson is right to point out that students today do not hold the principle of freedom of speech as utterly sacred and paramount. The most concerning statistic in the HEPI 2016 survey was that 27% of students agreed that UKIP should be banned from speaking at events at higher education institutions.[7] And while the HEPI survey showed that there is considerable support for the principle of free speech – 60% of respondents agreed that universities should never limit freedom of speech – a large proportion of students are willing to support practical policies that may restrict it – 43% agreed to some extent that protection from discrimination and ensuring the dignity of minorities can be more important than unlimited freedom of expression.[8]

Of course, no one under the law has the right to unlimited freedom of speech. It’s also entirely unclear whether, in the balance between protecting the marginalised from harmful speech and protecting the right to freedom of speech itself, the proportion of students who lean to the former rather than the latter is significantly different from the views of the population as a whole. That a significant proportion of students would ban a major rightwing party from campus is alarming – but are we so sure that the British public generally is much more dedicated to the principle of freedom of speech?

Practical problems

There are practical reasons why the proposed regulation might be highly difficult to implement. One issue is due to the legal context, which is messy and makes it difficult for universities to prevent student attempts to disrupt speech they dislike. While university governing bodies have a legal duty to uphold freedom of speech, crucially there is no such requirement on students’ unions, which are separate legal entities from their parent universities.[9]

In fact, students’ unions are charities, and charity law deliberately restricts what charity trustees can and cannot say and do as representatives of their charity. Charity Commission guidance to students’ unions states that union officers can comment publicly on issues that affect students ‘as students’ – for example on street lighting near the campus or public transport at night. But unions should not comment publicly on issues which (in the Charity Commission’s view) “do not affect the welfare of students as students” – such as campaigns to outlaw the killing of whales, or the treatment of political prisoners in a foreign country. My research into the views of students’ union officers found that they are well aware of the limits on what they can and cannot say – but some do think the rules limit their freedom of speech, and worry about whether they can truly represent the students who elected them if they are not allowed to speak completely freely.[10]

It’s the legal distinction between universities and students’ unions which the National Union of Students (NUS) relies upon to justify no platforming policies. The NUS has received legal advice indicating that the unions aren’t acting unlawfully by preventing certain people from speaking freely.[11] Johnson’s new proposals, then, will force universities and unions into a stand–off that will be difficult to resolve in the current legal setup.

Moreover, if universities are going to be forced to take a more rigorous approach to uphold freedom of speech, there is going to be a significant cost implication which will ultimately land on the students’ heads. One commentator in The Times, backing Johnson’s intervention, noted that the University of Florida had shown “wisdom and leadership” by spending $500,000 on security for a speech by self–declared white supremacist Richard Spencer. It’s a laudable example but obviously unrealistic to expect other universities to follow it. An important, mundane reason why universities or students’ unions cancel controversial speakers invited by student societies is simply that the cost of security for hosting them is too great.

Faced with the threat of fines for not upholding freedom of speech, some cynical university managers may use this as an excuse to raise tuition fees – forcing students to pay for the privilege of hosting a speaker they would rather not hear from anyway. Whether this matters more or less than rigorously upholding the principle of freedom of speech is up for debate.

A reductionist narrative

Beyond this, and more fundamentally, there is a problem of narrative and language here. While Johnson acknowledged that most students feel they do have the freedom to express themselves, consciously or unconsciously his statement pandered to a simplistic, common–place story that students today are wet, mollycoddled, illiberally liberal “snowflakes” incapable of accepting criticism. This notion reveals itself in the lists of incidents that commentators tend to cite as evidence for it. Johnson pointed to the recent attempt by the students’ union at Balliol College, Oxford, to ban its Christian Union from having representation in a society Freshers’ Fair, alongside safe spaces, no platforming, and “trigger” warnings during events. Similarly an article in The Times said that Oxford University had put “trigger warnings” on sexually violent legal case reports, the University of East Anglia had “outlawed sombreros” and that the NUS introduced jazz hands instead of clapping due, apparently, to some students’ “clapinduced anxiety”.

Just because a policy causes you a minor inconvenience does not mean it is draconian, pathetic, restrictive of your right to free speech or unjust.

When added together, these incidents do strike you as evidence of a moral crisis. But is it really fair to lump disparate events involving different people altogether? Since when did a lecturer (or the BBC for that matter) warning that a text contained references to rape, or an event organiser asking attendees to use jazz hands, amount to a restriction on someone’s freedom of speech? As it happens, the NUS has justified its jazz hands policy on the grounds of wanting “to make our conferences an accessible space for people of all disabilities, learning difficulties and access needs”. Such a policy might seem mollycoddling and may cause minor annoyance, but the intention, and potentially the effect, is to increase marginalised groups’ access to public debate, and even their ability to exercise their own freedom of speech. Just because a policy causes you a minor inconvenience does not mean it is draconian, pathetic, restrictive of your right to free speech or unjust – it may be quite the opposite.

There are other incidents that clearly are restrictions on freedom of speech, including the actions of Balliol College students’ union; these kinds of actions should be rightly condemned and protected against. But activities like no platforming, safe space policies and trigger warnings have very different aims and effects (see notes [1] and [2]), and different implications for freedom of speech; they must be disaggregated. Media and political rhetoric that bundles them altogether is at best sloppy, and at worst politically motivated. There is major political capital to be made by painting students as snowflakes.

Protecting good speech, preventing bad speech

Finally, the proposals pin all the blame for restrictions on free speech on campus on the activities of students. They ignore external factors which may be stifling freedom of speech. I noted above that the status of students’ unions as charities already restricts what some students can say. Beyond this, Johnson’s proposals fail to recognise that universities are caught between conflicting expectations: that they must uphold lawful freedom of speech for all, whilst simultaneously they must restrict the lawful speech of some – namely those who are suspected of holding ‘extreme’ views.

British universities are legally required to “have due regard” to the need prevent people from being drawn into terrorism.[12] In 2015 the government introduced the Prevent Duty guidance – statutory guidance instructing universities on how to implement their duty. The guidance has been criticised for a range of reasons.[13] For example, it relies on the notoriously undefined concept of ‘non–violent extremism’ (itself reliant on the Prevent Strategy’s definition of extremism as “vocal or active opposition to British values”).[14] It states that universities should consider the extent of the likelihood that views expressed at an event may “risk drawing people into terrorism”, and that if the university isn’t entirely convinced that the risk can be “fully mitigated”, then it should cancel the event.[15] Unsurprisingly some critics have questioned how a university can possibly be sure in advance that there is no risk of speaker views being extreme or leading people into terrorism.[16] And some commentators have argued that the Duty has propagated a culture of self–censorship among some Muslim students, particularly religiously conservative ones, as well as leading to some Muslims being wrongly accused of extremism.[17]

The idea that Prevent chills freedom of speech and exacerbates Islamophobia has itself been hotly contested.[18] As with the narrative of moral crisis concerning students, it is a potentially problematic approach to add together isolated incidents of poor implementation of Prevent into an overall narrative of suspicion. But regardless, this is a view that does have significant traction on campus, both among students and staff. In my research, I spoke to long–term staff members working in students’ unions. A number of them argued that they had seen a clear decline in requests from student groups for external speakers with lawful but ‘controversial’ (i.e. socially conservative) views over the last few years, and also a general dampening down of political activism.[19] They attributed this both to the rise in tuition fees – an incentive to focus on work above activism – and also to the counter–extremism measures. Some staff, particularly those at universities where former students had gone on to commit acts of terror, admitted to being more likely to ‘say no than yes’ when requests came in for speakers who could be portrayed by the media as extremists. If there is indeed a significant ‘chilling effect’ on freedom of speech (and this should not be taken for granted), then it is not only from some students shutting down debate, but from some students and students’ union officers avoiding controversial debate at all, through fear of being smeared as extremists by tabloids eager for a story.

Perhaps, though, an upshot of Johnson’s proposals will be that some universities will have confidence to prioritise their duty to protect freedom of speech over caution about potentially ‘extreme’ speakers. They will take heart from a recent judgment in an important High Court case (noticeably lacking in significant media attention) on the lawfulness of the Prevent Duty guidance in universities. Justice Ouseley found that the guidance is lawful, but that universities are not obliged to follow it – they must only give it regard in a balancing act between the need to uphold free speech and the need to prevent people being drawn into terrorism. They are “entitled to say” that “the freedom of speech duties and the academic freedom duties to which they have to pay particular regard, are more important.”[20]

Ultimately, then, the proposals to regulate freedom of speech at universities are laudable but in some ways seriously limited. If the government wants to get real about protecting freedom of speech on campus, then it needs to take the concerns about self–censorship seriously and ask why they are there. It needs to stop indulging in narratives about students as ‘snowflakes’ and ask why they may prefer to lean towards protecting people from speech they deem harmful rather than upholding free speech as a principle sacred above all else. And it needs to think hard about its demand that universities restrict the speech of people with lawful views, however controversial or distasteful they may be. If we want to defend freedom of speech in society, then we have got to rethink how we deal with speech on the extremes.

Simon Perfect is a Teaching Fellow at the School of Oriental and African Studies (SOAS). At Theos, he is part of a team researching faith and belief societies on university campuses, in partnership with the Centre for Trust, Peace and Social Relations at Coventry University. | @simplymrperfect