University Free Speech: This Law is a Euphemism

News Editor Asher Gibson argues that the proposed UK “free speech” law is part of a trajectory to undermine universities’ state independence.

The UK Government recently proposed new legislation to make universities legally liable for “free speech infringements”, allowing academics, visiting speakers and students to sue for compensation when they feel they have been unjustly de-platformed. As part of this, they also seek to appoint a “free speech champion” to “investigate potential infringements of free speech in higher education and recommend redress”, according to the Guardian.

At first sight, legislative free speech protections look like an indisputably good thing. Freedom of expression forms part of the core foundation for a free society and should be upheld as far as possible. Upon closer inspection, however, this legislation forms part of an extended pattern of state intervention into education that risks the very thing it proposes to protect.

The reasons why might be unclear if you haven’t been following developments in policy to this end, but this has been a topic I have covered quite diligently throughout the year.

The Background:

To give a short summary, in September 2020 the government sought to ban the teaching of “anti-capitalist” texts in further education. In October, Women and Equalities minister Kemi Badenoch claimed that teaching about the existence of white privilege as an “incontestable fact” in efforts to decolonise the UK curriculum is illegal, despite their own internal report, “Black People, Racism, and Human Rights” by the Joint Committee on Human Rights (JCHR), deeming this to be overwhelmingly true.

Worse still, prior to A-Level results day when it was expected that COVID-19 would reduce the number of students taking up university places, the government set conditions for debt bailouts to coerce them into changing the content they taught. Non-compliance would have meant risking bankruptcy and the livelihoods of every staff member, lecturer, or researcher employed at those institutions.

In the very same brief where plans or these supposed free speech protections are outlined, they have criticised the free discussion of Britain’s colonial history and decision-making around whether to idolise key benefactors with statues.

According to the Telegraph, culture secretary Oliver Dowden claimed that the universities and heritage sites exploring this history were trying to “run from or airbrush the history upon which they are founded” and “constantly trying to do Britain down” rather than expanding the scope of the history being taught and democratising the way we commemorate our national history.

When added to this genealogy, the hypocrisy becomes quite sickening. As is evident from its history, the government is inclined to be partisan in the speech they seek to protect. The “free speech champion” will presumably be elected by the government, so we can suspect that they will go to good use in fighting for speech that aids them politically while turning a blind eye to infringements that don’t.

The Report:

You might accept this, but argue that it is merely a series of oversights by the government, and reformed legislation to these ends are still necessary. The central report to this debate: “Freedom of Speech”, again by the JCHR, shows that this is not the case.

This report says explicitly that the UK press’ claims of widespread free speech suppression are “clearly out of kilter with reality”, making clear in its introduction that “universities have their own codes of conduct for free speech and often also regulate other matters on university or student union premises.”

Nevertheless, it continues to entertain the idea by shifting an impossible burden onto universities to prove a negative: that events which do not happen are not evidence of censorship. It quotes then-Minister for Universities’ as saying “just as important is …the large number of events which do not happen at all, either because organisers are worried about obstruction or because the overzealous enforcement of rules makes them seem more trouble than they are worth…some of this is quite difficult to gather evidence for.”

The positive examples given are overwhelmingly protests against platforming people who have made transphobic statements in the past, such as an NUS officer’s refusal to share a platform with Peter Tatchell at Canterbury Christ Church University in 2016, and Germaine Greer’s appearance at the University of Cardiff in 2015.

However, the report also makes clear that “in both these cases the speaker’s freedom of speech was not curtailed as they were not stopped from giving their talks” and quote the Vice-Chancellor of the University of Cardiff, Professor Colin Riordan, as saying the Greer incident should be held “up as an example of us valuing these things and protecting academic freedom.”

“These are actually examples, where students manifested their right to freedom of expression through peaceful protest or refusing to share a platform with someone”, the passage finishes.

The only genuine example of unjust de-platforming the report cited was a proposal by some students at Oxford’s Balliol College to deny the Christian Union a space at a Fresher’s Fayre. Even here, though, it is unclear whether the proposal was successful and, generally speaking, Student’s Unions’ free speech policies should be well placed to tackle such problems.

The Public vs Private Sphere

When left-wing students had their key cards deactivated from Bush House during the Royal Family visit two years ago during an investigation about whether they had broken the university’s guidelines in a previous protest, “several staff members repeated the line that there was ‘no legal right to protest on private property’ in the context of King’s students protesting on King’s property.”

Though, this was reportedly “…clearly in contradiction to the understanding held by the executive level management…” it begs an interesting question. I would like to know whether these staff members are just as committed to asserting King’s status as a private entity, now that it is a right-wing government rather than left-wing students challenging it.

The reason this is important is because private institutions have a greater right to freedom of association than public ones. It is a bread-and-butter component of liberal philosophy that seeks to maintain civic equality with freedom of expression. It is also what Professor Riordan implicitly referred to when calling the Greer incident an example of “protecting academic freedom.”

In private institutions and relationships, people do not automatically owe others their time, energy, or platforms. A free market of ideas implies the capacity to be allowed not to listen.

Universities sit at a complex intersection between the public and private sphere, partially funded by the state for tuition and research, but less so than ten years ago when the tuition fee cap rose to £9250/year. Because of this shift, we can see that the government are trying to claim more power over universities while disavowing the responsibilities that come with it.

With greater state control should come more funding – at the very least the partial refunds students are demanding for COVID-19 losses, and ideally a return to free tuition overall. That is the only way the government could possibly justify such significant interventions into university life. Even then, it isn’t clear whether that would be enough to buy our collective right to free, independent association.