Academic free expression matters. In a society riven with ideological and moral divisions that break careers, relationships and more, perhaps nothing matters more. Who else will provide the intellectual leadership to steer us through this ethical quagmire, if not academics? This duty is, at times, dangerous as it is important. To discharge it, academic expression requires particular protection.

The European Court of Human Rights agrees. It says such expression deserves the highest level of protection under the Convention, so that learning and knowledge can be advanced, and because democracy cannot survive without academic free expression.

There is a “but” — though not the kind of “but” at which free speech absolutists generally baulk. It is a “but” which any genuine champion of academic free expression should accept, as it requires us to take the word “academic” with the utmost seriousness. Academic free expression has standards, and it has limits; there must be an academic element for it to count.

What is sufficient to qualify expression as truly academic? This is a deeply hard question. The European Court gives us some idea; it clearly points us to look for an academic element in work and describes scholarly rigour using accepted methodologies and peer review as one way of finding it. This also extends to extramural expression flowing from such research or an academic’s professional expertise. A United Nations Recommendation cites a due respect for evidence, impartial reasoning and honesty in reporting. We might dig deeper and say what distinguishes “academic” free expression from “ordinary” free expression is its amenability to critical correction and refinement.

Miller’s claim to the protection of academic free expression looks strained

In each potential explanation, we see a demand for standards. Pseudoscience — astrology, alchemy, e.g. — don’t make the grade. Nor do sophistry, conspiracy theorising or propaganda. These undermine the rationale for academic free expression’s special protection. They do not advance learning or knowledge; in some cases, they undermine democracy. The same is true of theories that claim racial or ethnic groups are inherently superior or inferior, along with speech which the European Court considers unworthy of protection: promotion and justification of terrorism, incitement to violence or racial hatred, Holocaust denial, etc.

Forgoing this requirement for a truly “academic” element, and allowing any speech of any academic to enjoy an enhanced level of protection, is as much of a threat to academic free expression as attempts to deny its importance altogether. Without it, the peculiar nature of such expression — its academic quality — is debased, as is the core justification for its importance to our society.

These concerns are not general. The English employment tribunals are wrestling with the specifics of academic free expression in several ongoing cases: Gadow v Open University, Favaro v City University, Phoenix v Open University, and Miller v the University of Bristol. The Miller case is of particular interest, given the reception of his work by other scholars.

David Miller, erstwhile Professor of Political Sociology at the University of Bristol, is a highly controversial academic. In 2019, Jewish organisations complained to his university about his allegedly antisemitic comments during lecture — in particular, that the Zionist movement was a key driving force of Islamophobia in the UK. An investigation followed, and the subsequent disciplinary panel dismissed Miller for “not meeting the standards of behaviour [expected] from [the University’s] staff”. His supporters have claimed this dismissal violated this right to academic freedom, and his employment tribunal is currently ongoing. In light of the above, the question arises: was there such a violation?

In terms of how other scholars have received his work, consider the powerful condemnation of Miller’s work by Professor Anthony Julius: “The feeble? Everything that should matter to an academic: methodology; research; evidence; history. The forcible? Everything that an academic should shun: extravagant claims, unmoored from evidence; the antisemitic premises of the work; the verbal assaults on Jewish students — assaults which are the inevitable outcome of his writing and speech-making.”

If the facts led the tribunal to accept that conclusion with respect to the relevant expression impugned in his case, then Miller’s claim to the protection of academic free expression looks strained in the extreme. Indeed, in such circumstances it could be considered antithetical to the underlying requirements for attaining that necessary academic element. The tribunal would need to consider the European Court’s case law to identify the truly “academic” element and ensure it does not cross the line into expression unworthy of any protection.

Julius’ analysis also highlights another potential problem for Miller’s case. It has been reported that he is seeking to establish his anti-Zionist position as a philosophical belief protected under the Equality Act 2010. This is separate from academic free expression and does not require any particular academic element; it is in effect a lower bar. To qualify, part of the test is that such a belief must be worthy of respect in a democratic society and not incompatible with human dignity or in conflict with the fundamental rights of others. Whilst anti-Zionism may conceivably qualify as a protected philosophical belief in the right case, it does not therefore follow that it will qualify for every individual who seeks to rely upon it.

Beliefs that require unlawful action are not worthy of respect

In a recent case, a claimant failed to cross this hurdle and establish that her particular brand of ethical veganism was not entitled to protection — even though this is a belief which has otherwise been found to be protected. The key differentiator was that part of her belief took the form of an obligation to take actions which were unlawful or interfered with the property rights of others. Beliefs which advocate or require unlawful action are not worthy of respect in a democratic society.

Again, if the tribunal were — on the facts — to accept Julius’ conclusion on Miller, there would again be a significant risk that the contested belief has crossed the high bar which means it is unworthy of protection. This deficiency would also forestall an attempt to circumvent any failure on the part of the belief to achieve a protected status as academic free expression (because it lacks a sufficient academic element). In other words, the Equality Act 2010 route — which, as Professor Eric Kaufmann and I have explained, is otherwise broad — would be closed off.

How precisely this case will play out is an issue for the tribunal, but what it and other cases do make clear is that the contours of academic free expression are going to be fiercely fought over in the coming years. Universities will probably find this an uncomfortable experience, as institutional autonomy has long been a treasured and important aspect of academic freedom.

One might argue (as indeed the Government did in introducing new legislation to govern free expression on campus) that they have no one to blame but themselves in ceding this ground with a lax attitude to free expression. Whatever the reason, ceded it has been. Academic free expression will be defined on another campus — the Campus Martius of the courts.