The twisting tale of free speech on campus
Universities have a long history of promoting free speech on campus. In fact, they have long had a legal duty to take steps that are ‘reasonably practicable’ to ensure free speech within the law is secured for its members, students, employees and visiting speakers. Ideas and opinions need expression and contestation if they are to drive intellectual development, particularly at university level.
For some, however, the rise of so-called ‘safe spaces’ and ‘no-platforming’ on campuses across the country threatens to derail the wheels of history and, with it, the free speech driving our intellectual development. Universities minister Jo Johnson is concerned that such developments are holding students back from speaking their minds. The Government may now fine universities which fail to uphold free speech in line with their legal duty to do so.
Unfortunately, there is an irony here that appears lost on the Government. Safe spaces and no-platforming are supported by a free speech justification that already exists in political fora such as Parliament. This justification has four basic stages.
First, individuals should be free to set up groups, the purposes of which individuals are free to choose and the membership of which is conditional on promoting those purposes while abiding certain rules. These freedoms should only be restricted when the purpose, or one of the purposes, of a group is to incite hatred or violence against another group.
Second, free speech is necessarily limited by factual inequalities of power. Evidently, not everyone has the same ability to express their opinions and have them heard, but all people need some degree of safety and security to express themselves. Therefore, those with less power will sometimes need more protections than others to have their voice heard.
Third, political fora such as Parliament already impose certain rules which restrict free speech in order to support their purpose of facilitating and promoting constructive political debates. In the Houses of Parliament, MPs or Peers must take it in turns to speak on the subject of the motion, doing so when called upon by the Chair of the House. Those speaking must also refrain from using “un-Parliamentary language” or deviating from the subject. Without these restrictions, it would be difficult to facilitate and promote constructive political debates through free speech. Labour’s “humble address” to ministers — to release dozens of papers outlining the economic impact of Brexit — is a good example.
Fourth, assuming these arguments are valid, it is a relatively small step in logic to accept that certain limits should be imposed in certain contexts to protect vulnerable voices from being suppressed by more powerful voices. Clearly, those limits must be necessary. Free speech should be increased overall; but the fewer restrictions to achieve that result, the better. Less clearly, those limits must also be proportionate. There will be instances where increasing net free speech does not justify the damage done to particularly vulnerable individuals and groups. That is a value judgement for the judge of the day.
So, in many ways, Parliament is a safe space where no-platforming occurs: MPs and Peers face restrictions on what they say and how they can say it. When Jo Johnson raises his concerns in the House of Commons, he should realise that his ability to do so is, to a great extent, the result of numerous restrictions on free speech in Parliament.
Of course, there will be instances where safe spaces and no-platforming will, unjustifiably, fail to uphold free speech. But the irony is doubly unfortunate given that many of those instances are the result of the Government’s interventions on free speech at universities.
The best known example is perhaps the Government’s ‘Prevent’ programme. Since 2015, universities (as well as several other public institutions, like the NHS) have a legal obligation to ‘have due regard to the need to prevent people from being drawn into terrorism’ (the ‘Prevent duty’). While we should not contribute to the mythology that teachers are now spying on their students, there is reasonable concern that putting this duty on a statutory footing might negatively affect free speech on campus. For example, following the Prevent duty, universities may need to provide extra security and vetting processes for visiting speakers indicating possible extremist views, in order to demonstrate they have ‘fully mitigated’ the risks the event poses. The cost and impractiality of these measures will often go beyond universities’ legal duty to take steps that are ‘reasonably practicable’ to secure the free speech of visiting speakers. Not surprisingly, some universities may deem these events too burdensome and reputationally risky to allow them to go ahead.
A less known example is the Government’s recent decision to make the Charity Commission responsible for student unions. The Charity Commission now instructs student unions to avoid political activities since, as charities, they should be politically netural. This closes down another important forum in which students can exercise free speech to voice their own opinions and challenge others. It also puts union officers, as representatives of the student body, in a difficult and confusing position. Can they address political issues that pose educational issues? Are representatives able to effect real change for the students they represent when their hands are politically tied? Is it really possible for the representative of any body of people to be politically neutral? We must consider whether or not these restrictions on free speech are necessary and proportionate. Jo Johnson would seem to think not: “[Universities] have a duty to protect freedom of speech, and this duty extends to all meetings and activities on their premises, including those run by the student union”.
And so the twisting tale of free speech on campus goes on. The Government’s confusing narrative has resulted in unclear, and sometimes conflicting, legal duties for universities and their student unions. That’s not to say that determining the limits of free speech on campus, as in any context, is ever a simple matter: safe spaces and no-platforming require justification. However, using the blunt tools of legislation to enforce those limits can also derail, or at least damage, the free speech driving our intellectual development.
Tristan Goodman is the Founder, Publisher and Editor-in-Chief at LawSpring, as well as a Future Trainee Solicitor at a City law firm.
