The complex web of freedom of speech guidance

Freedom (to speak) and freedom (from harm) – universities and their students’ unions have always been a site of tension over what simplistically appear to be absolute, unarguable human rights.

But rights frequently come into conflict. So where should universities and their students’ unions draw the line – and how?

The Equality and Human Rights Commission (EHRC) and the Department for Education (DfE) think they have the answers, releasing new guidance for universities and unions on freedom of speech on campus. And in many ways, it’s quite extraordinary.

A little history

Before we dig into it, it’s worth looking at a bit of history and context. Back in the early part of the decade, the sector spent some time reeling from a string of cases that apparently suggested that universities were hotbeds of Islamic extremism. Perhaps the most high profile of these happened on Christmas Day 2009, when a former UCL student and Islamic Society President was apprehended attempting to blow up a flight from Amsterdam to Detroit.

In the aftermath that followed, a particularly ugly series of press stories ensued, as muck-raking journalists did their level best to try to find additional examples of radicalisation taking place in prayer rooms and Islamic societies. Much of the coverage was plain old Islamophobia, but there had already been some evidence floating around that international pan-Islamist political organisation Hizb-ut-tahrir had been using unwitting students’ unions to set up student societies.

Despite Hizb-ut-tahrir not being proscribed and the views only teetering on the edge of hate speech, there was significant pressure from government to ban these largely lawful societies and their events. But given some of the events held by those societies featured speakers that had anti-semitic, homophobic and sexist views – albeit religiously justified – there was pressure from students too. So rather than depending on blunt “no platform” policies (or being told what to do by government), students’ unions and NUS along with UUK started to develop risk-based policies that could better assess the range of legal and moral responsibilities in play.

That guidance, produced by Universities UK and NUS respectively, has largely been in use ever since. “No platform” often catches the headlines, but the reality is that the guidance produced at the time has almost completely avoided outright bans of speakers. Because it stresses a balanced and risk-based approach, universities and their students’ unions have actually facilitated much much more controversy than they’ve restricted. That facilitation is often difficult – in the run up to a controversial event, passionate voices argue either for no restrictions or an outright ban – but sensible risk mitigation steps are almost always deployed.

Time for a crackdown

But in a political and media context that is rarely concerned with nuance and trade offs, a new narrative meant a “tough new crackdown”, initially promised by universities and science minister Jo Johnson. In late 2017, the parliamentary Joint Committee on Human Rights (JCHR) had obviously read some of the coverage, and resolved to hold its own inquiry into free speech on campus. It heard a handful of anecdotes from Spiked! journalists, and then in January heard the President at Sussex Students’ Union eloquently argue that charity law meant that students’ unions and their societies sometimes had to restrict freedom of speech – which in a subsequent session resulted in an uncomfortable exchange between the committee and a couple of officials from the Charity Commission, which directly regulates SUs.

As the press coverage about “student snowflakes” rumbled on, Johnson’s successor Sam Gyimah was suspicious that “murky” and “disjointed” sector guidance, along with what the JCHR found were highly bureaucratic processes in HEIs, were apparently allowing savvy student activists to stifle freedom of speech – what Gyimah called a “web of complexity”. He promised that his guidance would provide clarity on the rules for both students and universities, the “first government intervention of its kind” since the free speech duty on universities was introduced in 1986 (despite the reality that it had been government that had funded the UUK and NUS work referenced earlier). EHRC kindly offered to take a lead on developing the work, and it has been working up a draft ever since, although the Charity Commission put its own revised guidance out in November.

The new guidance

So after a ministerial handover it’s finally here – but the question is, how does it differ what what we’ve seen before?

Well, take the difference in the introductions. Nicola Dandridge, now CEO at the Office for Students, put it well back 2013 in her introduction to UUK’s guidance on freedom of speech:

Although most speakers are uncontroversial, some will express contentious, even inflammatory or offensive, views. In some cases, their presence on campus may be divisive. Universities have to balance their obligation to secure free speech with their duties to ensure that the law is observed, which includes promoting good campus relations and maintaining the safety and security of staff, students and visitors. In practice, achieving this balance is not always easy”

Compare that with the op-ed introducing his new guidance on freedom of speech within universities from David Isaac, Chair of the Equality and Human Rights Commission:

But let us be clear: freedom of speech comes with responsibilities. It is not a right to say whatever you like, whenever you like. The right can be legally restricted in a small number of specific circumstances, including where it amounts to hate crime, unlawful harassment or is a risk to public safety. These circumstances are set out clearly in the law – it is not the place of individuals or groups of people to decide what is or is not acceptable”

On first reading you might not spot the difference. But there’s something important going on in the EHRC version. The careful balance is gone, replaced with the idea that it’s only parliamentarians that can decide what is and isn’t acceptable when it comes to behaviour. Really?

The detail

In the guidance itself the opening paragraphs are innocuous enough, setting out the context and principles for the work. “The right to express views and ideas freely, without fear of interference or persecution, is an essential part of democracy”, it says. “Respectful debate and conversation helps us challenge discrimination, get rid of intolerance and harmful attitudes, and build strong, positive communities”.

It’s also notable that while OfS and the Charity Commission were consulted, their logos aren’t on the front. In pursuit of reduced complexity, it argues that readers should separately consult guidance from the two actual regulators in this space.

Next, we get a very odd section. “Freedom of expression is relevant to, but should not be confused with, the important principle of academic freedom”. Fair enough, but protesters often argue that harassment and bigotry often hides behind academic freedom. The result is that it’s clear that the rest of the guidance is only really about extra-curricular activity – in fact earlier drafts said explicitly that it “did not cover the legal obligations of HEIs to protect freedom of expression in their role as education providers”. You can see what they were getting at, but a neat line drawn between the two types of activity is laughable on many campuses – and of course students’ unions are educational charities.

There then follows the usual sort of thing you get in guidance like this – a neat run down of relevant legislation that applies to the policy area. All the greatest hits are in there – the Education Acts of 1986 and 1994, the Human Rights Act 1998, the Equality Act 2010, the Counter-Terrorism and Security Act 2015 (with the associated Prevent duty bit), and of course charity law.

The problem is how the discussion around all of these often confusing bits of legislation and regulation is framed. Unlike the UUK, NUS and Charity Commission work, running right through the document is a thread of priority where freedom of expression is framed as being more important (much much more important) than freedom from harm. The standard of “harm” is framed legalistically as harassment or discrimination as defined in the law. But “freedom of expression” is framed much more generally.

In this guidance, it can only be limited can be limited “by law” and “where necessary” –  to prevent crime, in the interests of national security, or public order. And in the EHRC’s world, the definition of “speech” in the Education Act 1986 would be interpreted to “include written material, both printed and electronic (such as social media, email and other digital communications, slogans, posters and pamphlets)”. Good luck rewriting your codes of practice in that light.

When discussing the Public Sector Equality Duty, the guidance argues that an HEI must take into account the “likely impact […] on students who may feel vilified or marginalised” by views expressed in a debate, and consider “steps they should take to ensure those students feel safe and welcome within the HEI environment”. The debate going ahead is framed as the default position.

The case studies

The case studies are fun. In one of them, a students’ union (not, remember, a public authority) considers inviting a writer to debate gender equality. It has a policy of not inviting speakers that use what it terms as “hate speech”. During planning for the debate, it emerges that the writer has spoken on social media of their belief that “women with a Gender Recognition Certificate are still men”, but because the writer has not yet been invited to speak there is no infringement of the writer’s freedom of speech. Makes sense. But then it says that the students’ union could not prevent its own societies, or even other students, from inviting the same speaker to talk to them because this would engage the HEI’s s.43 duty to protect free speech.

In the majority of cases societies are legally part of the SU – if they don’t follow the union’s rules, did an invite ever happen? And more practically, the idea that any student on campus can issue an invite anyone – and then get the HEI to wade in to help – is a preposterous recipe for chaos. Is the EHRC really trying to suggest that any group of students can invite any speaker, artist or performer without going through proper procedures (or having any consideration to budget, or safety), and then enlist the help of their HEI if the SU says no?

In another, an event is organised by an atheist SU-affiliated society to debate whether God exists which attracts protesters. The guidance reminds readers that providers must take all “reasonably practicable” steps to enable the event to go ahead, which may include increasing security measures. But a glance at events in the US – where alt-right celebrities (with no lack of opportunity for expression) revel in being invited to campus and attracting protest – suggests that those steps can include astronomical security costs. The guidance dodges whether it’s “reasonable” for student fee income to be spent on alt-right celebrity security rather than, say, teaching and learning.

In another bizarre case study, a group calling itself “Laddism Reborn” applies to the students’ union to be affiliated and thereby to get funding and use of SU facilities for its activities. The group aims to promote what it calls “lad culture” and talks about women in an openly derogatory way on its promotional material (printed leaflets and social media platforms). The union refuses affiliation expressing its view that the group is misogynistic and citing its policy of creating “safe spaces” for all students.

Despite the group stating that its right to freedom of expression is being infringed, the guidance then rightly points out that the SU is entitled to have a policy on safe spaces to protect others from harassment, including on the grounds of sex. It also notes that given that the distribution of leaflets and use of notice boards would be in a public place, this could constitute harassment under the Equality Act 2010. But then it says “the students could continue to meet as Laddism Reborn on private premises”. It’s not clear whether the EHRC would champion their right to post openly derogatory messages in a WhatsApp group, but the recent coverage of the case at Warwick suggests most students and HEIs might take a different view to EHRC’s.

The heart of the problem

All of which goes to the heart of the problem with the guidance issued.

First, it’s the assumption of disingenuousness – the idea expressed here, by the media and by ministers that student campaigners are somehow cheating or lying when they argue that some types of behaviour or speech make them feel unsafe. This deep mistrust of what is being said by those who face discrimination on campus and want to do something about it resembles the wider problem in the culture wars – nobody trusts each other. And that’s a problem.

Second, it’s the idea that the grown-ups in parliament know best, whose laws on hate speech and discrimination are somehow the last word on what should and shouldn’t be acceptable on campus. It flies in the face of history when it comes to progress on discrimination. If the student body wants to set standards of behaviour within their own organisation, as long as they do so properly and democratically, who are we to stop them?

Then there’s the assumption – which is extraordinarily patronising – that students’ unions and their HEIs would somehow benefit from this work. There might well be the odd policy that needs a plain English rewrite, but it’s clear that they already do an excellent job at balancing complex and competing demands with skill, courage and pragmatism.

But above all, it’s the contrast with the early 00s context that’s most sinister. Back when the supposed threat was radical Islamic ideas, the government was wink wink nudge nudging universities and unions into banning speakers, despite there being no legal basis to do so. Thankfully, the sector basically ignored it and found better ways to manage campus tensions. Now when the threat is those with extreme, far-right, discriminatory views, the government is suggesting that universities and unions must always let them speak. The sector should ignore them this time too.