Free speech needs a law

Face the problem as it is — the modern academy is running on different train-tracks to liberal humanist thinking

Artillery Row

Free speech advocates are, as you would expect, a disputatious bunch. We pretty much all agree that there is a free speech crisis in UK universities, but we differ on how to solve the problem. 

Some believe that introducing a new law and tough regulations, as the government proposes, is the wrong approach. Persuasion, they say, is better than coercion, and the government should, where possible, not interfere in the running of universities. Free-thinkers, their argument goes, can only flourish in a culture of free speech, and that can only be achieved by debate and persuasion. Index on Censorship, for instance, argues that the problem on campus is “a cultural problem and you simply can’t legislate for cultural change – you need the carrot as well as the stick and this is missing from the policy paper.”

I believe that the government is right to introduce legislation, and critics of the proposals are wrong. They are, however, wrong for the best of reasons.

A culture of free expression really is a far more thorough-going safeguard than rules

A culture of free expression really is a far more thorough-going safeguard than rules designed to protect free expression. For the three centuries, give or take, up to 2000, the UK enjoyed a vigorous culture of free speech, despite the fact that any lawyer you cared to ask couldn’t have pointed to any specific law that protected it. The US, on the other hand, enjoys the Rolls Royce protection of the First Amendment – and yet that has done little to prevent a culture of censorious close-mindedness taking root in American universities and which has now crossed the Atlantic and spread to UK campuses.

The limits of the law as opposed to a cultural ethic are fairly clear. The law can protect free expression, but it has no power to make us value it or engage in it. Self-censorship will never incur any liability and therefore can’t be legislated against. We should also not over-estimate the “normative” power of law to shift social values. The Counter-Terrorism and Security Act 2015 has not made universities love the Prevent duty, and it probably never will. The Human Rights Act 1998, which we were told would “bring rights home”, has not led to a grass-roots culture of human rights developing in the UK, beyond certain rarefied enclaves. Quite the opposite, perhaps.

Those who, like me, think law will help correct some of the shortcomings of the higher education sector must accept the limits of that approach. Law and lawyers are persuasive in the courtroom — but in the court of wider public opinion (and that includes Twitter), less so. Academics and administrators will not learn to stop worrying about ‘offence’ and love free speech simply because an Act of Parliament tells them to. We should accept that, if it is to be effective, change to the law must be accompanied by a change in campus culture. The former without the latter would be a dead letter – a sterile and formal obligation unnourished by the ethical discourse that gives rules their life and meaning. 

You can probably imagine already how, without accompanying cultural change, an Academic Free Speech Act would be another dismal addition to compliance culture. Read out the boilerplate, tick the box, and there’s your free speech. And since when was free speech about complying with anything?

It is here, however, that critics of the government’s proposals go wrong. Cultural change is not an alternative to legal change. The two must go hand in hand – more than that, change to the law is the only tolerable and practical route to the cultural change we should seek.

Let us consider the problem at hand. 

The Free Speech Union, of which I’m the Chief Legal Counsel, assists many young university students who are punished for having opinions not to the taste of those with power and the unscrupulousness to abuse it. To be fair, some university administrators are well-meaning but misguided. It is certain too that many administrators are simply terrified witless — disregard a claim that someone, somewhere is offended, and who knows what denunciation may follow?

The effect is the same regardless. These young people are being bullied. No decent-minded person should tolerate this.

Most of the student cases we deal with would, ideally, require no legal argument at all. A university administrator or academic should not need a judge peering over their shoulder to prompt the key questions that would, in most cases, bring a halt to proceedings – am I being fair to this student? Am I being reasonable?

Now it would, of course, be quite splendid if we could rely on others to act reasonably and fairly so we could live our lives unmolested — to complete the education for which we had paid, for instance, or to avoid unjustified and irretrievable damage to our reputation and job prospects. Sadly, however, we cannot. Legal remedies exist precisely because we cannot always rely on other people always to act fairly or reasonably, especially those endowed with powers ripe for abuse. The law must step in to compel them — to compel all of us — to fulfil the duties owed to others.

This is especially important in two specific circumstances. 

The first circumstance is where a failure to act reasonably or fairly would interfere with a right that is fundamental to the flourishing of the individual and the fair functioning of society — that is, a human right. Like it or not, the freedom to speak one’s mind, even tastelessly or offensively, is a human right. Societies that respect fundamental dignities do not indulge rights abusers, or wait indefinitely for them to abandon a culture of abuse. They protect the individual, because his or her dignity matters.

The second circumstance is where a failure to act reasonably or fairly would interfere with a public body’s obligation to provide a function that serves the common good, and which the public fund through their taxes. We all stand to benefit from an academy that produces knowledgeable, free-thinking, reflective, fearless, innovative graduates. That is why we pay for it through our taxes. It is also why the law should enforce the taxpayers’ bargain. A university that does not allow freedom of expression is, simply, not a university – I’m not sure what it is exactly, but it has a dubious entitlement to public subsidy. 

It is naïve to believe that any abuse of rights can be remedied by waiting for the abuser to mend his ways

On the current evidence, such institutions are unlikely to serve the common good and produce graduates equal to the demands of liberal democracy — equality of all persons regardless of their characteristics, respect for pluralism, open-minded tolerance, reluctance to condemn and a readiness to forgive. 

Consider next that these institutions will provide for the next fifty years almost all of the authority figures on whose sense of fairness and reasonableness our society will rely — ministers, parliamentarians, civil servants and (a shudder is forgivable here) our judges. 

The question to those who advocate slow cultural change is, to my mind, quite clear — how long do you think it will take you to persuade the dons to ditch the Foucault (or worse) and adopt John Stuart Mill? All while young students are bullied, denied their fundamental rights and indoctrinated into crude illiberalism? And at what cost to the young and our society should your indulgence come?

It is naïve to believe that any abuse of rights can be remedied by waiting for the abuser to mend his ways. It is especially naïve to expect reform from an abuser who, by quasi-intellectual artifice and specious appeal to authority, is uniquely able to resist even the most compellingly reasonable argument.

We must face the problem as it is — the modern academy is running on different train-tracks to liberal humanist thinking. Bringing about a course correction through argument alone, finding the common premises that underlie any fruitful debate, would be a lifetime’s work. It would be senseless, and a neglect of our responsibility to students, to take that long route. The complementary approach — a legal obligation to protect a fundamental right and public benefit — is already wholly consistent with universities’ status as public bodies.

The government, so far as I can see, is right. There will be plenty of time to debate how its proposal can best be implemented — it will, I hope, be a feast of technicalities for the lawyers. That will come later. More important now, right now, are the fundamentals. If we want a culture of free speech at our universities, we must force open a space in which students and academics can let that culture grow. That can only be achieved if there is an enforceable right to push back against institutions that try to close down that space.

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