Freedom of speech, lifts, and the importance of terminology

As the Higher Education (Freedom of Speech) Bill returns to Parliament today, HEPI is running two blogs on the issue.

This blog was kindly contributed by Andrew. M. Boggs, University Clerk at Kingston University and Visiting Fellow at the Oxford Centre for Higher Education Policy Studies (OxCHEPs). He writes here on behalf of London Higher, a group representing more than 40 London universities and higher education institutions. You can find Andrew on Twitter @andrewboggs.

Freedom of speech and academic freedom in a higher education context are incredibly complex concepts, constantly negotiated and re-negotiated in tension with universities’ other responsibilities, whether statutory, regulatory, ethical or moral. Universities must balance these competing forces when taking decisions about providing a privileged platform to potentially disruptive views. The Government’s proposed Higher Education (Freedom of Speech) Bill threatens to unbalance what are usually highly nuanced and considered approaches to these issues.

Context: Universities’ balancing acts with freedom of speech 

In England, existing legislation requires higher education institutions to ‘take such steps as are reasonably practicable to ensure that freedom of speech within the law’ is protected on their respective campuses (Education Act 1986 No 2 s.43). Under subsection 3 of Education Act 1986 No 2 s.43, universities are required to have a code of practice detailing how staff and students are expected to uphold free speech.

However, universities balance these statutory requirements against other legal requirements. Universities in the UK also have statutory responsibilities which sit in tension with their existing responsibilities toward freedom of speech. There are legal curbs on unrestrained freedom of speech. The Public Order Act (1986), referencing incitement to hatred on religious grounds, and the Racial and Religious Hatred Act (2006), which makes it an offence to ‘stir up hatred’ on religious grounds, place restrictions on what may be freely expressed.

Additionally, The Counter-Terrorism and Security Act (2015) requires universities to play a role in the PREVENT duty to mitigate against radicalization of students or staff. There is a duty to review on-campus speakers and those speaking as part of university-sanctioned events (and to take action where necessary). The PREVENT duty impacts universities’ policies around inviting speakers by compelling universities to balance protections for freedom of speech and academic freedom with anything that could be (or construed to be) speech that supports radicalisation or extremist views.  

All of this requires universities to take a nuanced approach to managing expectations of freedom of speech, both in the classroom and in extracurricular events. This careful balance is due to be upset by the Government’s proposed Higher Education (Freedom of Speech) Bill which, among other things, would impose a statutory requirement to ‘promote’ freedom of speech on higher education providers. While the difference between ‘promote’ and ‘uphold’ freedom of speech may appear to be semantic, it is likely to put higher education providers in an unenviable position of finding it impossible to balance their competing expectations effectively, and of pitting members of university communities and the public against each other.

A Thought Exercise: Freedom of speech and the metaphorical tuna fish sandwich

Without getting into the vast academic literature which interrogates freedom of speech, academic freedom, and how these concepts differ and overlap, I would like to propose a thought experiment. Let us assume that one’s right to expression can be exemplified by another issue of personal freedom – the freedom to eat a tuna fish sandwich in a lift. If no one else is in the lift, the smell may, at first, go unnoticed. However, like speech, a tuna sandwich can have a lingering impact; even if no one else is present while the sandwich is consumed, the odour may affect future users of the lift.

Now let us assume the lift has at least two people in it. Most people, respecting the comfort of the other individual(s) in the lift, will refrain from eating their fish lunch assuming that (a) colleagues may find being trapped in an enclosed space with smelly lunch odious and, if so, (b) they may form a negative opinion of the consumer. 

However, there may be the odd person who, feeling that they have a right to eat their sandwich regardless of location, may still go ahead and eat the smelly meal in a lift alongside other people. While the eater may be correct that they have the right to eat a smelly lunch, they must also accept that the other individuals have a right to hold them in lower esteem than the individual demonstrating restraint by not eating the sandwich.

In this case, the duty to ‘uphold’ freedom of speech might be supporting the right of the individual to eat smelly fish in the metaphorical lift but holding an expectation that individuals will refrain from doing so due to the impact this has on others in an enclosed space. 

However, a duty to ‘promote’ freedom of speech suggests an active promotion of individuals choosing to eat said fish in the lift, should the spirit move them, and to demonstrate corporate support for the freedom to do so. The consumer will often not have the same, visceral response to their own food as others and may not understand why others perceive the smell as noxious. It is the difference between acknowledging that most (but perhaps not all) spaces should be available for eating fish, and actively encouraging this practice in all spaces. This can only lead to frustration from those subject to the smell, who should have a reasonable expectation that – while in an enclosed space – highly distasteful odours should be controlled in a reasonable way.

In the same way, universities upholding freedom of speech often means carefully considering the impact of a particular view or belief being expressed, and imposing reasonable controls or supports, such as the cost of security, requiring additional speakers expressing alternate views, or simply not providing a platform for views which cannot be evidenced or are deliberately misleading. The university imposing such restrictions may still be upholding freedom of speech by considering the proposed speaker or viewpoint but concluding that there must be reasonable mitigations placed on an event. A duty to promote freedom of speech, in contrast, can very easily translate into requiring universities to provide a platform for all perspectives to speak their views, without regard for its evidence or basis. 

Recent HEPI publications:

• Josh Freeman, ‘No Platform: Speaker Events at University Debating Unions’, HEPI report 153, 13 October 2022.