The University's Approach to Free Speech

What do we agree to in our matriculation commitment to free speech?

At the beginning of the year, we were all required to sign a commitment to freedom of speech. The university conditions of study list states its position as follows:

“The University believes in the right of all members of the University community to exercise the right to freedom of expression in a manner that does not bring the University, or anyone connected with it into disrepute.”

Innocuous enough. But given the press and attention universities have gotten over the past five years, the details of the University’s approach to freedom of speech deserves more thorough treatment.

Following this brief statement, the conditions of study attach a legal framework, written by Scotland’s Equality and Human Rights Commission, that provides more details regarding university policy. The framework is intended to guide Scottish higher education institutions’ approach to freedom of speech. It is keen to encourage universities (and affiliated student associations) to treat freedom of speech as a fundamental right. It also guides institutions on the legality of when and how freedom of speech should be eclipsed by other rights.

Summarising its key points, the article states: “everyone has a right to free speech”, including when statements “offend, shock or disturb others”. The overall commitment to free speech, alongside the stated exceptions, follows the approach to freedom of speech in the Human Rights Act (1998) which codified the European Convention on Human Rights (ECHR) into British law.

The legal framework explicitly favours free speech. Yet universities have come under repeated attack for their approach to free speech – and St Andrews is not immune. Although the University has avoided major incidents, ‘Civitas’, a conservative think-tank, put St Andrews in its ‘most restrictive’ category for freedom of speech in a 2020 report.

The report into university freedom of speech sorts universities into categories primarily based on incidents between 2017-20. The most common censorship of speech came in relation to perceived transphobic incidents (47% of the most restrictive universities experienced such an incident) and from open letters demanding the restriction of speech for staff, students or speakers (48% of the most restrictive universities had at least one such open letter).

The question then becomes: how have universities come under such criticism for their approach to freedom of speech?

One reason is that the document outlines some caveats to freedom of speech that could cause controversy. Universities have a responsibility to deny free speech when it endangers national security, could cause crime, or is used for ‘unchallenged hatred or bigotry’. That latter clause has the potential to be used to censor speakers who – for example – argue that women’s rights are being infringed by the modern trans movement, given that these views have damaging implications.

Similarly, The Equality Act (2010) can be used for censorship. The Equality Act prevents behaviour related to ‘protected characteristics’ that is intended to create an ‘offensive’ atmosphere for that person. Courts must balance whether it is reasonable for the behaviour to have had the effect that it did, and ensure they balance rights including freedom of speech and academic freedom.

Again, issues can arise because ‘hatred’, ‘bigotry’ and an ‘offensive’ atmosphere can be subjectively perceived, and the perpetrator may disagree that the speech was hateful, bigoted, or offensive. The defence of protected characteristics, and the prevention of offensive atmospheres, undoubtedly both contribute to the censorship incidents highlighted by Civitas.

Despite the Equality Act, British law still enables leniency for speakers giving opinions in a manner intended to inform, even if the opinions expressed are deemed by the audience to fall foul of anti-discrimination law. If the speech is offensive, the ECHR states that any restriction on freedom of speech must be lawful, necessary and appropriate – preventing someone’s freedom of speech ought to be a last call. Most speakers, according to the document, should be allowed to talk if at all possible.

Nevertheless, the controversy over free speech in universities has led the government to propose an act of parliament – the Higher Education (Freedom of Speech) Bill, which is currently in the House of Lords. This act would go further than the current legal guidance for Scottish universities. The Higher Education (Freedom of Speech) act enables speakers who are no-platformed to sue universities, fines to be issued to universities who fail to protect freedom of speech, and a ‘free speech champion’ to be instated in the Office for Students.

The legal framework St Andrews operates under is already weighted towards protecting freedom of speech. There may be concerns about the interaction between freedom of speech and laws which aim to prevent discrimination, given these laws enable freedom of speech to be quashed. But the tone of the document is to allow freedom of speech while excluding extremism and unabashed discrimination, neither of which even an ardent freedom of speech advocate would support.

The introduction of the Higher Education (Freedom of Speech) act is therefore unlikely to make much improvement to the status of freedom of speech in universities – the legal framework used by St Andrews already displays commitment to free speech. If spoken in a manner intended to spark debate and challenge assumptions, the law is firm in its commitment to this ‘fundamental’ freedom.

The greater issue lies with ‘self-censorship’ – when students and faculty do not speak out dissenting opinions on matters that could cause controversy. While laying the legal foundation for universities, the Equalities and Human Rights Commission report mentions concern over self-censorship in universities. Raising this issue highlights that protecting freedom of speech relies on culture just as much as the law. If it is socially unacceptable to say certain things, regardless of the law, speakers with controversial views will not get invited to speak at association events, and non-conforming views will not be expressed. The law cannot force student bodies to invite speakers with different viewpoints to their own – even when dissenting opinions would be healthy.

So a commitment to free speech, signed by everybody at the start of the year, is a tokenistic way to try and instil a culture that is free from social pressure to think in a certain way. Nevertheless, the high-profile nature of de-platforming incidents in the UK would suggest illiberalism in the student population runs deep. It is an important challenge for the university to ensure the student culture at the university remains deeply committed to fresh, independent thinking.

Illustration: Bethany Morton