Where does free speech become harassment over Israel/Palestine?

Tomorrow’s Times compiles many of them. Under the headline “Student societies defy warnings and condone Hamas attacks”, it first reports that a (part-time) student officer at Sussex gave a speech in Brighton in which it says she endorsed the attacks by Hamas, calling them “a victory”.

The “defy warnings” angle is derived from a letter from home secretary Suella Braverman to Chief Constables in England and Wales, in which she asks them “protect communities from provocations”.

In it she reminds the police (and, through the media, the public) that Hamas is a proscribed terrorist organisation in the UK in its entirety, and that it is therefore a criminal offence for a person in the UK to:

• belong to Hamas
• invite support for Hamas
• express support for Hamas whilst being reckless as to whether the expression will encourage support of it
• arrange a meeting in support of Hamas
• wear clothing or carry articles in public which arouse reasonable suspicion that an individual is a member or supporter of Hamas or
• publish an image of an article such as a flag or logo in the same circumstances

As we got from Gillian Keegan a few weeks ago over Just Stop Oil, we’d have to assume that a version of the letter is on its way to vice chancellors.

The more difficult thing is that in the Times piece, it’s not clear that the other examples it has quoted would be actionable – either by the police or by universities in their disciplinary policies.

And in fact, it’s potentially more likely that the examples quoted would enjoy enhanced protection under the government’s free speech regime.

Public order

In the Braverman letter, as well as setting out the explicit rules around proscribed organisations, the home secretary sets out some wider behaviours that she expects the Police to take account of.

Of course, it is not just explicit pro-Hamas symbols and chants that are cause for concern. I would encourage police to consider whether chants such as “From the river to the sea, Palestine will be free” should be understood as an expression of a violent desire to see Israel erased from the world, and whether its use in certain contexts may amount to a racially aggravated section 5 public order offence.

There’s no doubt that the example Braverman gives there would be highly offensive. Whether it would amount to a “racially aggravated section 5 public order offence” would, I suspect, be much more open to legal debate.

Similarly, where Braverman asks that “context” is taken into account, things get very complicated. There wouldn’t be much argument about those that “drive through Jewish neighbourhoods, or single out Jewish members of the public, to aggressively chant or wave pro-Palestinian symbols at.” But this line feels especially difficult to judge in practice:

Context is crucial. Behaviours that are legitimate in some circumstances, for example the waving of a Palestinian flag, may not be legitimate such as when intended to glorify acts of terrorism.

And when she calls on chief officers to ensure that any protests which could exacerbate community tensions by way of offensive placards, chants, or behaviours that could be construed as incitement or harassment, “have a strong police presence to ensure perpetrators are appropriately dealt with, and that communities feel protected” a read across into HE could also be exceptionally difficult for universities (and their autonomous SUs) to judge.

The Times piece highlights a statement from UEA Students’ Union that it says “deplores” state-sanctioned violence, bombing and shelling against Palestinians:

Those who exercise their internationally recognised right to resist such crimes are being met with force by the Israeli occupation forces.

It says it added:

Several Israeli civilians have also lost their lives or sustained injuries due to rocket fire from the Gaza Strip. We offer our deepest condolences to Jewish and Israeli students in their grief.

The problem is that the statement they’re referring to is from 2020, issued in response to a completely different episode in the conflict. The statement actually published by the SU in response to the current events says:

It is worth remembering that Jewish people are not responsible for the Israeli government and Palestinian people are not responsible for the actions of Hamas. No one in our UEA community is accountable for these actions, and they should not be held responsible.

The piece also quotes the SOAS PalSoc as saying:

The Palestinian people have the right to resist occupation by any means necessary… After 75 years of violence, apartheid, settler colonialism, racism, occupation and many other unspeakable injustices, Palestinians are resisting. United we stand with the Palestinians all over Gaza, the West Bank and the diaspora, and we extend our support to all the victims.

There are many people that will find that view deeply offensive – but whether it would amount to harassment is a very different question. Ditto many of the other examples in the piece.

The Times also expresses concern about the “welfare” focused statements issued by many universities and SUs – on the basis that they don’t tend to “pick a side”:

Several British universities also released statements that focused on supporting students and staff rather than directly criticising any regime or their actions.

Free speech within the law

On Monday, the Office for Students’ new director for academic freedom and freedom of speech gave a speech in which he said that he would:

…protect the lawful speech rights of speakers at universities – students, staff, visiting speakers – independently of the viewpoint that they are expressing… You can speak or write as a Marxist, a post-colonial theorist, a gender-critical feminist, or anything else – if you do it within the law.

Presumably, as long as we’re not talking about direct support for Hamas, we’d have to assume that that list extends to PalSocs, those that are pro-Palestinian in the ongoing conflict and even those that might explicitly condemn Israel or seek to justify the attacks on it in response to the weekend’s events.

I certainly heard plenty of opinions of that ilk on Ofcom-regulated LBC last night.

Of course, in the rarified imagination of the university-as-debating chamber, the assumption is often that controversial views should be heard on the basis that they can be politely debated. But surely even the most hardened free-speech zealot can see that this conflict – especially this week – is unlikely to be approached in that way. That doesn’t take away the protection:

What matters to us, within the confines of the law, is not what side you take – what matters is that you get to choose what side you take. A great historian once wrote that it is a rare and happy time in which you may think what you like and say what you think. It is a rare and happy place too. We think higher education should be such a place.

And despite the routine mockery of those who say they feel “emotional harm” from others’ views, on “both sides” of this conflict many real students really will feel the pain of protest from others’ expression – and argue that it’s harmful.

It’s perhaps unfortunate that the speech was delivered this week, but the “clarification” over the Equality Act that was in Ahmed’s speech also suggests that universities ought to tread very carefully before instigating disciplinary action or even investigations:

I have then heard it argued that the need, for instance, to advance good relations, between persons who share a relevant protected characteristic, and those who do not share it, would justify a rule of conduct that prohibited speech on the grounds that it is offensive to someone’s religion, or that it in some way undermines some other aspect of their identity that is connected with a protected characteristic. This in turn might easily chill lawful speech: it might, for instance, encourage a university to ban speakers, or sanction students or lecturers, whose stated views on religion or reproductive or animal rights might be especially offensive to those who shared a relevant protected characteristic.

Similarly, when Ahmed says that…

…it is the powerless and the marginalized who benefit the most from freedom of speech…

…he’ll surely understand that students in PalSocs and activists that condemn Israel genuinely feel that they are backing a marginalised people/group.

As we’ve been over several times before here, this is of course what happens when two heavy sandbags are placed on both ends of the culture wars see-saw – pressure to prevent harassment, and pressure to deliver free speech.

Where the angle of that see-saw should be over this iteration of the Israel-Palestine conflict, with examples and legal advice to back it up, really ought to be the subject of an emergency bit of guidance from Ahmed – but I suspect we won’t hear a thing.

It’s not as if the legislation that gave him the job was designed to protect any of the actions in that Times piece – and that’s why neither Prevent nor this bit of legislation will ever be reasonably seen as “neutral”.