Three-D Issue 35: Free speech on campus requires demo-cratic solutions, not top-down sanctions

Alison Scott-Baumann & Simon Perfect
School of Oriental and African Studies (SOAS)

There’s no such thing as free speech and it’s a good thing too, according to American academic Stanley Fish. By this he means that there is no situation where speech is truly ‘free’, without constraint; in every scenario there are rules, explicit or implicit, which govern it. And this is necessary for making dialogue possible, and for ensuring that loud, powerful voices don’t always drown out quieter, weaker ones.

This is something that is often forgotten in today’s higher education free speech wars, where absolutist, libertarian demands for a maximal free speech are increasingly common. There is a popular narrative that freedom of speech is in crisis in UK universities, and in response the UK government has made a series of unprecedented muscular interventions into the sector. In February, Gavin Williamson, the Secretary of State for Education, announced a series of proposals to strengthen freedom of speech and academic freedom – including empowering the Office for Students (OfS) to sanction universities deemed to be failing to uphold these freedoms; creating a process for people (students, staff and external speakers) to secure compensation if their speech has been restricted; and extending the current legal requirement on universities to uphold freedom of speech (the Education No. 2 Act 1986) to cover students’ unions too.

Free speech is essential in universities because relatively uninhibited debate is key for the learning process and for the production of knowledge. Undoubtedly these proposals will push university managers to keep free speech at the forefront of their minds; and the measure about students’ unions would be a major change, meaning that unions could no longer refuse a platform to someone with lawful views they do not like. But these plans are flawed in a number of ways. They seem to favour the absolutist, maximalist position to free speech which forgets that, sometimes, certain restrictions on one speaker’s freedom to speak can actually enable more people to feel able to participate in a debate, exercising their freedom. Furthermore, the heavy-handed sanctions approach seem to be more about distracting voters from the government’s handling of Covid-19 and Brexit than about actually trying to help universities handle free speech.

But there are further issues. One is that the narrative the government is playing into – that there is a crisis of free speech on campus – is overstated. As we show in our new book, Freedom of Speech in Universities: Islam, Charities and Counter-terrorism, there are some issues that need to be taken seriously – according to a survey of over 2,000 students in 2019, 25% felt unable to express their views on campus as freely as they would like, rising to 32% of Leave voters and 34% of Conservative supporters. Universities clearly need to do more to ensure that diverse political views can be heard in the classroom. But the idea of a crisis of free speech is muddied by the fact that so much debate does go ahead – according to the OfS, in 2017-18 there were 62,094 requests for external speaker events in English universities, and only 53 were turned down.

The proposals also overlook existing structural factors which are pushing students, universities and students’ unions towards risk aversion rather than towards freer speech. One is the Prevent Duty, the counter-terrorism structure. In a major AHRC-funded project led by Scott-Baumann in 2015-18, over half of the 253 students and staff (Muslim and non-Muslim) interviewed commented negatively about Prevent or described it as chilling free speech, and some said they felt they needed to self-censor in order to avoid arousing false suspicion of extremism. The research also found that students who support Prevent also tend to hold negative stereotypes about Muslims and Islam; and the Prevent risk aversion makes it much less likely that such stereotypes can be discussed, confronted and reduced.

Another such structure is charity law as it affects students’ unions, which are charities regulated since 2010 by the Charity Commission. Charity law constrains students’ unions in various ways – for example they must ensure that their activities are for the ‘public benefit’, and do not risk endangering the union’s reputation. As we show in our book, drawing on interviews with students’ union staff in 2016-17, some students’ union managers have felt forced to be risk averse, turning down requests for potentially controversial (though lawful) speakers out of concern of falling foul of charity law. The government proposes to remedy this issue by making the OfS a regulator of students’ unions specifically in regard to upholding free speech. But since the unions would remain subject to charity law and the Charity Commission’s guidance, they would become subject to two conflicting structures – one pushing them to uphold free speech, the other pushing them towards risk aversion.

If these top-down, sanctions-heavy proposals are flawed, what then needs to be done? In our book we argue that it is only action by universities themselves, not pressure from the government, which can break this impasse and really facilitate free speech. We make several suggestions in this regard.

The first relates to the difficulty we all experience in engaging in rigorous debate with those we disagree with strongly. Social media creates and augments communicative tension in that we often seem to define our relationships with others more by the degree to which we cause each other offence than by our capacity to agree with each other. We do not accept the right-wing populist view that this sensitivity leads to plentiful no platforming on campus because the evidence shows the opposite. However we do note the marked effect of populism in creating extremes, pushing some students to the extreme of the absolutist, maximalist approach to free speech (which can lead to some people asserting their right to speak while drowning out others), and pushing others, in reaction, to no-platforming, denying those who disagree the right to speak.

To counter this, universities need to actively build into their programmes (across all disciplines) opportunities for students to debate divisive issues, both in the classroom and outside it. We recommend setting up debates that are managed by the group in such a way as to facilitate a ‘Community of Inquiry’. Such opportunities are already available on campus in the shape of workshops about consent, how to be an ally and how to resolve conflict. In this process, the participants explicitly discuss and agree to the ground rules for the debate in advance, giving everyone ownership over the debate. They are also encouraged by a facilitator to follow a set of ‘procedural values’ – such as courtesy, being willing to listen to the other point of view, using reliable evidence to make a case, and ensuring that lesser heard voices receive a fair hearing. Following procedural values pre-empts risk aversion, facilitates risk-sharing and makes more likely mutual recognition amongst various constituent groups.

The goal of the Community of Inquiry is to persuade students and sometimes even staff that it is worth discussing issues that are being avoided and that appear intractable, and to help them do so in a non-polarised, non-confrontational way. Even when there is likely to be no group agreement, there will be progress in the form of better understanding and a recognition that participants are co-dependent collaborators in the learning process.

Secondly, universities need to demonstrate to wider society an alternative to the harsh binary that dominates the free speech wars – that the only options are either libertarian talk or no-platforming. We suggest there are, in fact, four possible approaches to handling freedom of speech practically: 1) the ‘liberal’, where the speaker is encouraged to express any views they wish to within the law, though avoiding language that most people would find grossly offensive; 2) the ‘libertarian’, where there are no constraints on either the speaker’s lawful content or language; 3) the ‘guarded liberal’, where some restrictions are placed on the speaker in order to enable the event to go ahead; and 4) the ‘no-platforming’ approach, which could mean preventing particular people from speaking, or disallowing discussion of particular topics. We recommend that universities and students’ unions pursue the liberal approach as a default position, including for external speakers with controversial (though lawful) views, rather than being risk-averse and avoiding such speakers. Occasionally, however, students and staff may reasonably decide that a different approach (such as the guarded liberal) is needed to handle a particularly controversial topic or speaker, or to ensure less dominant voices can be heard. The fourfold model can be used flexibly, on a case-by-case basis. We encourage universities and students’ unions to use the model transparently, to demonstrate to the public how they are creating space for debate: for example, they could explain on their website that they adopt the liberal approach as a default position, but that occasionally another approach is more appropriate.

Thirdly, universities need to find ways to increase staff and students’ access to policymakers. They should establish a team to help academics summarise their research into briefing papers for policymakers, and to providing training on how to lobby parliamentarians effectively. An example of this is an initiative established by Scott-Baumann at the School of Oriental and African Studies (SOAS) in 2020: Influencing Corridors of Power. Recently their expert briefings on Myanmar led an MP to table a motion on Myanmar, and another briefing on Freedom of Information (FOI) led to the team being asked to set up a cross-party discussion on the issue.

Ultimately, it is these kinds of university-led reforms that will bring change on campus, rather than the government’s top-down sanctions approach. Fish is right that there is no such thing as completely free speech – but we can recover the campus capacity to host and facilitate vitally important discussions. Young generations face immense complexity in terms of race, gender, global warming and failing economies. The university is the place to clear the air and discuss such issues.

Dr Alison Scott-Baumann is Professor of Society and Belief at the School of Oriental and African Studies (SOAS). Simon Perfect is an Associate Tutor at SOAS and a researcher at Theos, the religion and society think tank. They are authors of Freedom of Speech in Universities: Islam, Charities and Counter-terrorism (Routledge, 2021).

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