Freedom of Expression in Higher Education

By Joe Davies

Freedom of expression within higher education has been subject to furious academic, political and legislative debate over the last few years.

Epitomised in Gavin Williamson’s Higher Education Bill proposed in 2021, growing concern around the ability to openly express certain views and opinions on campus has incentivised many to take action to safeguard those freedoms: for instance, enabling guest speakers to lecture without faculty restrictions. While some argue that this is essential in ensuring the continued exchange of ideas that forms the foundation of higher education, others perceive such action as its own form of censorship: an attempt to limit criticism or opposition to harmful, discriminatory or otherwise dangerous beliefs, and indeed use higher education as a platform to enable them to propagate unopposed. Others believe the problem doesn’t exist, serving as a strawman to provide politicians with an excuse to regulate ideas in a space they consider ideologically hostile. Each of these ideas holds merit in some way, which makes it difficult to determine a clear course of action for those tasked with enforcing these policies. However, were I to be in the position of the Head of a University, I feel I would be obliged to regulate the material guest speakers brought onto campus: based on the true meaning of free speech, the self-regulatory failures of debate, the importance of safeguarding and the integrity of academia, it not only should, but must remain within the control of universities to determine what is and is not acceptable.

The most pressing counterargument against this assertion is the importance of free speech. Under Article 10 of the Human Rights Act, which has been a part of English common law since 1998, all individuals are entitled to free expression of their beliefs without discrimination. The alleged actions of universities in changing courses, removing recommended reading and particularly banning speakers would certainly infringe against this freedom, which would then be in clear violation of the law. However, in England and Wales, freedom of speech is not as irreproachable as it is in countries like the USA. Indeed, there exist a plethora of various exemptions to the rule, for reasons not limited to ‘harassment, incitement, obscenity, and defamation.’ Of course, gross violations of these exceptions are illegal, rendering their position in university lectures moot since they would likely carry greater consequences than a campus ban, but it is still important to note that there exist twenty-six forms of speech legally recognised to be harmful to the public good. This is further backed by the existence of hate speech laws, such as Section 4 of the 1986 Public Order Act, that prevent the use of speech considered ‘threatening, abusive or insulting’ and intended to cause ‘harassment, alarm or distress.’ Considering these facts together, it becomes clear that universities have more of a right than previously expected to regulate what content is allowed on campus in the eyes of the law. There still exists opposition to this notion, however - as previously stated, all these violations are illegal – so the content of a university speaker’s talk must not infringe on the requirements of free speech if they are allowed to operate in society. While this may be true, we can turn to ethics to explore the liminal space between legal and illegal. Even when something is considered legal, the closer it strays to illegality, or at the very least unacceptability, the closer its consequences are to that of the illegal act.

Harmful material being regulated by university administrators falls into this liminal category: although it may be tolerated within the law, it strays so close to infringing on it that it comes to the same ends of ‘harassment, alarm or distress.’ Universities have a duty to protect students, and if speakers are attempting to come on to campus in a ‘technically legal’ capacity, it should be within the administration’s power to control the content of these speeches. Where the negative outcomes of illegal and legal speech are equitable, the latter should be subject to at least regulation, especially in an environment where it could cause undue harm.

However, some say that intervention of any kind undermines the very premise of higher education: it is up to students to debate these ideas and see which ones stand the test of argument. Many proponents of absolute freedom argue that good and bad ideas in this sort of intellectual forum are self-selecting: if an idea cannot be defended in debate, it is naturally culled into irrelevance without need for administrative interference. This seems logical on the surface but delving a little deeper reveals a darker side to this line of reasoning. Examining recent political trends, a number of extremist fringe beliefs have accrued popularity and credibility by focussing specifically on the exploitation of debating, with proponents of radical beliefs developing rhetorical skills to assert ideological relevance. Debating holds an immense amount of academic weight, a notion perfectly expressed in the aforementioned ‘natural selection’ of beliefs through its medium, but it is important to note that a bad idea can be as equally welldebated as a good one: the value is not in what is said, but in how it is said. This notion, however, is not commonly expressed: winning a debate reflects positively not just on the orator, but on their material. So by training in debate, extremists can utilise this false equivalence to promote their ideals above the status quo, with higher education being a particularly favourite arena for these debates due to the typical imbalance in skill between participants. The idea that a debate between an external speaker and a university student could be held on equal footing is absurd: most students have very little experience in public debate, particularly if their field is nonoratory, whereas speakers, by definition, have trained to be exceptional, or at the very least persuasive, orators. This is the foundation of credibility for commentators like Ben Shapiro, who rely on debating with less experienced speakers to promote their irrefutably harmful ideologies: Shapiro is a proponent of climate change denial, conversion therapy and lax gun control, and he depends on ‘defeating’ university students in debate to lend any credence to his beliefs, even where a more experienced orator would be able to pick them apart. To put the onus on students to unilaterally dismantle harmful ideas, particularly against opponents who have been trained to utilise rhetoric over reason, is unfair. As these ideas spread uncontested, they marginalise and inevitably silence opposition, the very problem that proponents of absolutism sought to avoid. As such, it would be necessary for more experienced individuals to regulate external speakers to prevent such an outcome, as it can be difficult to recognise the separation between convincing rhetoric and legitimate substance.

Furthermore, as previously mentioned, universities should not be wholly perceived as gladiatorial arenas for ideology. Universities, as implied by the term ‘higher education’, are schools. For most students, aged eighteen to twenty-one, they are places to explore new interests and gain experience in their field before entering the real world. By extension then, university administrators are responsible in many ways for the student body, including the safeguarding of their wellbeing. Is it acceptable, then, to allow speakers to talk about something that might alienate, harm or distress students in an environment where they are supposed to feel comfortable?