Free speech – a guide for students

Lawful and unlawful speech 

Speech is permitted unless the law restricts it. Different pieces of legislation could lead to these restrictions.

Some of these include:

• Public Order Act 1986
• Protection from Harassment Act 1997
• Terrorism Act 2000
• Equality Act 2010

For further information about lawful and unlawful speech, see our full guidance for universities and colleges.

Essential functions 

A university or college may also need to consider whether to restrict speech if it interferes with its essential functions.

These functions include:

• learning
• teaching
• research
• administration necessary for the above.

Restrictions for these reasons should, wherever possible, restrict the time, place and manner of the speech rather than the views expressed.

For instance, this may mean that protesters with a lawful point of view can be stopped from intruding into classrooms if they are going to disrupt a lecture or tutorial. However, it may be less likely that they can be stopped from (for instance) setting up stalls or handing out leaflets in an open space outside any classroom, if this does not disrupt teaching, learning or research.  

In the example above, the university could, for example, offer the protesters an alternative space that does not affect its essential functions. 

Physical safety

A university or college may also need to consider whether to restrict speech if it has a concern about physical safety.

If speech could lead directly to a specific danger, then it may not be permitted or a university or college may need to restrict how, when or where the speech occurs.

If, for example, a controversial speaker invited to speak at a university has received credible threats on their life, the university could consider hosting the event online rather than in person and limiting who can attend. 

Legal or regulatory requirements

A university or college may also need to consider whether to restrict speech so it can comply with a legal or regulatory requirement.

For example, it may need to restrict speech to meet a legal safeguarding requirement to protect children or adults at risk, or to act compatibly with the human rights of others under section 6 of the Human Rights Act 1998.

Factors that are not relevant

Other factors are unlikely to be relevant to whether a university or college can restrict speech. For example the viewpoint that the speech expresses. This includes whether or not the viewpoint:

• reflects the values of the university or college
• is controversial or offensive
• meets with the approval of external or internal groups at the provider.

Any impact the speech might have on the university or college's reputation would not usually be a reason for it to restrict the speech. 

Restrictions on speech

A university or college will need to make sure that any restriction or regulation of speech (any ‘interference’ with it) is ‘prescribed by law’ and ‘proportionate’.

Both these terms have particular meanings.

An interference is 'prescribed by law' if:

1. there is a specific domestic English legal rule or regime which authorises the interference;
2. the person who is affected by the interference must have adequate access to the rule in question; and
3. the rule is formulated with sufficient precision to enable the affected person to foresee the circumstances in which the law would or might be applied and the likely consequences that might follow.

To assess whether a measure is 'proportionate', the university or college must consider:

1. whether the objective of the measure is sufficiently important to justify the limitation of a protected right,
2. whether the measure is rationally connected to the objective,
3. whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
4. whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

In practice, this means that it is difficult to restrict speech in a higher education context.

For example, a university or college may need to restrict the speech of medical students on their placements. This is because there are professional guidelines in place about what medical students can say to patients.

However, the restriction should only focus on these circumstances and not impose broader restrictions on a student’s speech, for example, stopping a medical student from speaking in debates on campus.

Any regulations or restrictions should:

• use legal definitions where these are available
• incorporate objective tests where appropriate, for instance in relation to harassment
• avoid vague language or undefined terms
• include clear, adequate and effective ‘safeguard’ statements protecting academic freedom and freedom of speech within the law (for instance, to the effect that where a policy conflicts with academic freedom, the latter prevails).