This is my first speech in this country in the newly created role of Director for Freedom of Speech and Academic Freedom at the Office for Students, the independent regulator for higher education in England. It might therefore be worth my saying a little about myself, and more about this role.
I’ve worked in higher education for the last 20+ years, mostly at Cambridge University, as a university teacher. A lot of the teaching involved lecturing on philosophy, logic and probability, to large groups. One distinctive feature of Cambridge is that you have one-on-one hour-long sessions with a student, to discuss an essay. I must have done about two thousand of those!
Additionally, for about 15 years until around 2020 I acted as a Trade Union representative and caseworker for the University and College Union. This work was interesting and fulfilling. I was always happy to advise employees who either didn't know their workplace rights or were afraid to exercise them.
Both experiences gave me a vivid sense of why free speech matters, especially for those most likely to be victimised. What is the point of studying philosophy if you don’t, at some point, test the boundaries of conventional wisdom? For many years I've campaigned for freedom of expression in higher education. This was through internal committee work and public engagement.
Turning to my role. The post is Director for Freedom of Speech and Academic Freedom at the Office for Students, the independent regulator for higher education in England. This is perhaps the longest job title anyone ever had outside the Mikado. It exists by virtue of amendments made to schedule 1 of the Higher Education and Research Act 2017 by the recently passed Higher Education (Freedom of Speech) Act. The relevant provisions state that the Director shall have responsibility for overseeing the free speech functions of the Office for Students and performing other functions which may be delegated by the Office for Students. I’d like to say a little about what I think my role entails in practice.
The first and most important point is that this is not a partisan role. I really can’t stress enough that there is absolutely no question of conforming university teaching or research to any political agenda. Freedom of speech is not the property of one side in any culture war. It belongs by right to the whole human race; indeed for those of us who enjoy it, nothing is more precious.
More concretely, this means that we will take a broadly viewpoint neutral approach. Broadly speaking, we will protect the lawful speech rights of speakers at universities – students, staff, visiting speakers – independently of the viewpoint that they are expressing. It makes no difference at all whether you are in favour of Brexit or against it. It makes no difference at all what side you take on statues or pronouns or colonialism, or abortion or animal rights, or ULEZ. You can castigate the monarchy or defend it. You can argue that Britain is fundamentally racist – or that it never was. You can speak or write as a Marxist, a post-colonial theorist, a gender-critical feminist, or anything else – if you do it within the law. You can even be rude about me – up to a point.
The reason for this is that the role exists to protect and to promote freedom of speech within the law. And freedom of speech is not just one political position or value among many. Supporting freedom of speech is not like supporting Scottish independence or opposing an increase in VAT. Nor is it like socialism or one-nation conservatism. The reason is that freedom of speech, like democracy, is – although it may not only be – what you might call a process value rather than an outcome value. It does not tell you what the outcome of any political or scientific debate should be. What it tells you is how that dispute should be conducted: namely, through open and tolerant discussion in which all sides both feel and really are free to express their views.
So what matters to us, within the confines of the law, is not what side you take – what matters is that you get to choose what side you take. A great historian once wrote that it is a rare and happy time in which you may think what you like and say what you think. It is a rare and happy place too. We think higher education should be such a place.
Freedom of speech and academic freedom are fundamental to higher education. The core mission of universities and colleges is the pursuit of knowledge, and the principles of free speech and academic freedom are fundamental to this purpose. They provide a necessary context for advancing new ideas, encouraging productive debate and challenging conventional wisdom. All staff and students are entitled to teach, learn and research in a culture that values vigorous debate, including – or perhaps particularly – in relation to difficult or contentious or discomforting topics.
As the statutory regulator for higher education in England, the OfS wants every student to have a fulfilling experience of higher education that enriches their lives and careers. Students will not have a high quality education if that education is not grounded in freedom of speech. That includes freedom of speech for themselves, for fellow students, for those who teach or supervise them and for visiting speakers. One of our strategic goals is that ‘providers secure free speech within the law for students, staff and visiting speakers’.1
But there are now persistent and widespread concerns that many in higher education are being silenced, either by the activity of the university or by its inactivity. And that silencing may fall disproportionately on those who are most vulnerable. On the student who might join university eager to debate contentious issues about gender identity, or gay rights in Islamic law, or the Black Lives Matter movement. To discover that those issues are avoided, that seminars steer away from such topics. Or on the lecturer who may face a disciplinary process following complaints from students about their inclusion of certain texts in the course reading list. Or on the trainee who is told that they are ‘unfit to practise’ in a particular profession because of lawful, but contentious, views that they have expressed in a class.
There is evidence to support these concerns. For instance, a recent study published by Bobby Duffy et al. at King’s College London showed that 48% of students agree with the statement ‘Students avoid inviting controversial speakers to my university because of the difficulties in getting those events agreed’, compared to 37% in 2019.2
Things are no better when we turn from freedom of speech to academic freedom. This concept, which is related to free speech but distinct from it, concerns the freedom of academics to teach, research and discuss theories and ideas on the basis of their own judgment, without external pressure from their employer, from the state or from the public. The Academic Freedom Index 2023, conducted by the Institute of Political Science at FAU Erlangen-Nurnberg in Bavaria, finds that academic freedom in the United Kingdom has fallen significantly in the last ten years and that the UK now ranks around sixtieth in the world for academic freedom, well below nearly all EU countries.3
And if these reports are true, even that is not the worst of it. Because when an institution fails to protect, or punishes, legal speech, the effect goes well beyond the speaker. It casts a penumbra of silence. This is the chilling effect. A 2017 poll of UCU academics – the most recent of its type – found that more than 1 in 3 UK academics (35%) surveyed was self-censoring, compared to 19% in the EU at the time.4 In Prof. Duffy et al.’s research, 67% have refrained from voicing their opinion on at least one of a range of issues, including religion, race, immigration and animal rights.5 And once it is explained to them, 28% express that the chilling effect is a problem for them personally.6 The 2023 National Student Survey found that 1 in every 7 students in England feels unable freely to express their own views at university.7
Those who say ‘only 1 in 7’, as though it were some kind of victory for freedom of speech, are missing two fundamental points. First – free speech is, and always has been, a counter-majoritarian principle. It is literally there to protect minorities. Saying it is OK that self-censorship only affects a minority is like saying it is OK that poor healthcare only affects people who are unwell. But second – in what world is 14% an acceptably low figure? How can anyone be happy that 14% of those taking part in higher education are missing out on a fundamental pre-requisite of higher education?
Let me turn now to three objections or concerns about the idea that we should secure and promote freedom of speech, particularly in higher education.
First: I have often heard people raise the concern that freedom of speech is a fine thing to want, but it is frequently in tension with other goals that are equally legitimate. An example is equality. This concern can take quite a specific form. For instance, the 2010 Equality Act places upon public bodies, including universities, what is known as the Public Sector Equality Duty. This is the duty for such a body, in the exercise of its functions, to have ‘due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and to foster good relations between persons who share a relevant protected characteristic and persons who do not share it.’8 In this context, the ‘relevant protected characteristics’ are those belonging to a list of eight characteristics that include sex, religion or philosophical belief, disability and gender reassignment.
Continuing with this objection: I have then heard it argued that the need, for instance, to advance good relations, between persons who share a relevant protected characteristic, and those who do not share it, would justify a rule of conduct that prohibited speech on the grounds that it is offensive to someone’s religion, or that it in some way undermines some other aspect of their identity that is connected with a protected characteristic. This in turn might easily chill lawful speech: it might, for instance, encourage a university to ban speakers, or sanction students or lecturers, whose stated views on religion or reproductive or animal rights might be especially offensive to those who shared a relevant protected characteristic.
This argument is mistaken on four levels. First, we do not think that merely offensive speech, at any rate in an academic context, comes anywhere near contravention of the broader duties and prohibitions under the Equality Act. In its current guidance on the subject the Equality and Human Rights Commission writes that universities and colleges: ‘are not restricted in the range of issues, ideas and materials [they] use in [their] syllabus and will have the academic freedom to expose students to a range of thoughts and ideas, however controversial. Even if the content of the curriculum causes offence to students with certain protected characteristics, this will not make it unlawful unless it is delivered in a way which results in harassment or subjects students to discrimination or other detriment.’ As the history of religious conflict ought to teach us, the freedom to offend is a fundamental right and the Equality Act does nothing to undermine it.9
Second and more generally, amongst the characteristics that are relevant, for the purposes of the Public Sector Equality Duty, is the characteristic of religion or philosophical belief. ‘Philosophical belief’ covers those that have the following characteristics: they must be (i) genuinely held; (ii) a belief and not an opinion or viewpoint based on the present state of information available; (iii) a belief as to a weighty and substantial aspect of human life and behaviour; (iv) a belief that attains a certain level of cogency, seriousness, cohesion and importance; (v) worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.10 In common law these include veganism, gender critical feminism and Scottish independence.
This matters because it suggests that the Public Sector Equality Duty is not just compatible with freedom of speech; in some cases it may actually require freedom of speech. After all, it is hard to see how you are fostering good relations between, say, those on either side of the Scottish Independence debate if you systematically stifle the speech of (say) the nationalist side on the grounds that it is offensive to unionists. Of course it offends them: any disagreement over political or social questions that actually matters to people is likely to cause some of them to feel offence. Shutting down debate on that basis is not going to improve things for anyone.
Third, as a matter of law the duty to ‘have due regard’ is not a duty to achieve any particular result or outcome. It is best characterised as a procedural duty which is designed to influence the way decisions are made and functions are exercised, for example, when a body subject to the duty is balancing a range of different considerations.
The fourth, and most general point goes beyond the academy. It is that if the history of free speech teaches anything, it is the following: that it is the powerless and the marginalized who benefit the most from freedom of speech. A recent illustration is the Civil Rights movement in the United States. Speech and expression were essential to Civil Rights protestors, just as censorship was their opponents’ most convenient weapon. As the American Civil Liberties Union reminds us, thousands of black Americans were arrested or imprisoned in the 1960s for speech – for protesting racial segregation. This includes the leaders of the Albany Movement, Dr Martin Luther King and Ralph Abernathy, who in 1962 were imprisoned for leading a prayer vigil outside Albany City Hall.11
More famous, and perhaps in the end more consequential, was a full-page advertisement placed in 1960 the New York Times. In it, supporters of Dr King criticized police in Montgomery, Alabama for their treatment of civil rights protestors. The advertisement contained some inaccuracies. For instance, it asserted that the police had arrested Dr King seven times (in fact it was only four times). And it asserted that the police had ‘ringed’ the Alabama State College Campus, whereas in fact they had not actually surrounded it. As it happened, these inaccuracies prompted the Montgomery Public Safety Commissioner to sue for libel. He won at the state trial court and the state supreme court agreed in 1962.
Then in 1964, in a unanimous decision that counts among the most important judicial decisions of modern times, the US Supreme court vacated the decision, thereby securing exceptionally strong protection for speech that is critical of public officials. Quoting Brandeis, the Court wrote:
Believing in the power of reason as applied through public discussion, [the Founding Fathers] eschewed silence coerced by law – the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.12
Freedom of speech matters the most precisely to the powerless: to those whom present political, religious and social arrangements most closely oppress. As many of its defenders have said, freedom of speech matters most if speech is all you have.
Indeed there is evidence that this effect applies more generally. It is not just that freedom of speech benefits oppressed minorities. It also benefits those with the fewest material resources. A recent study from New Zealand measured this by combining four extensive datasets.13 These were the WVS, ‘a repeated cross-sectional survey involving samples of people from over 90 countries covering 7 waves over 36 years’, the Latino barometer, a repeated cross-sectional survey involving samples of people from 17 countries covering 18 waves over 23 years, the CIRIGHTS database, which includes data on free speech and other human rights across the world between 1981 and 2017, and the VDEM database, which provides annual data on free speech and human rights for more than 150 countries, going back in some cases as far as 1789.
The authors of the study regressed verbally expressed concerns for free speech over other priorities (e.g., fighting rising prices) against levels of material resources and education, controlling for other factors. And they regressed benefits to well-being from free speech against levels of material resources and education, controlling again for other factors such as other human rights. What they found was, first, that people with higher incomes were more concerned about free speech than they were about many of the other priorities that they were asked to rank, in contrast with those on lower incomes. And second, that higher free speech is associated with better positive outcomes for the worse off than for the better off. So that free speech has, in their words, an ‘ empowerment effect for more marginalized groups.’ In other words – those who are better off tend to worry more about freedom speech, but those who are worse off really benefit more from it.14
As the authors remark, these results are not necessarily incompatible. Indeed on reflection the apparent conflict is hardly surprising. One plausible mechanism by which it might arise is that other material concerns – such as unemployment and inflation – may ‘crowd out’ free speech for the less well-off; but ultimately it is through free speech that those other concerns get transmitted into public policy. To paraphrase the authors’ story: People who have more in the way of material concerns will tend to put those material concerns top of the list. And this means that, for instance, ‘fighting rising prices’ is likely to be ranked as a higher priority than freedom of speech, for those on low incomes. On the other hand, free speech is what gives the poor a chance to voice their concerns and ultimately to influence public policy, to their benefit.
Far from there being a serious tension between equality and freedom of speech, the evidence is that they are, for the most part, mutually supportive, both within the academy and without it.
A second argument is as follows. There is such a thing as progress. We know more about most things than we did fifty years ago; and we know more about almost everything than we did a hundred years ago. This includes scientific progress; but it also includes moral progress. Britain at least is a more open, tolerant and welcoming place for all people than it was 50 years ago; and probably much more, along all these dimensions, than it was 100 years ago.
But if there is such a thing as progress (the argument continues), then what is the point in hearing people repeat – what is the point in letting them repeat – views that are outdated and wrong? If universities exist for the sake of knowledge, then why do universities have an interest in allowing the defence and dissemination of claims that could not advance anyone’s knowledge because they are not even true?
There are two answers. The first is that progress, if it happens at all, does not happen evenly. Although in some circles a scientific advance might be universally accepted once verified, much scientific progress, and perhaps most social and political progress, meets resistance before it gains acceptance. There is, and for a long time is likely to remain, considerable disagreement about the nature and prospects of AI. Those who reject the truth on any subject will for a long time co-exist with those who have grasped it. If those people cannot express their views, they will never change them. And this is true about those whose views on social matters are different from yours.
It is possible, and may be reasonable, to be cynical about this. In a very thought-provoking recent book, Matteo Bonotti and Jonathan Seglow have said that this argument only works if we assume that everyone involved in the debate is taking part in good faith. We have to assume that they want to arrive at the truth and that they are open to challenge. But when we look at some of the bubbles and echo chambers that the internet has created, we find that this is not so (they say).15
But even if it is true that these ‘hate speakers’, as Bonotti and Seglow call them, are not interested in challenge and debate whilst in their own echo chambers, it does not follow that they cannot be drawn into constructive conversations outside those contexts. Nor does it follow that their minds cannot be changed. The process by which this happens, however, may be gradual.
I know this from my own experience as a teacher of philosophy and from numerous debates about all kinds of question. It is rare, in any particular debate, for either side to change its mind. But over a period of time you can plant a seed in someone’s mind; and over numerous conversations with you and with others, their attitudes do change.
I know of people – admittedly not, or certainly not all, what Bonotti and Seglow would have called ‘hate speakers’ - who through such a process have profoundly changed their religious and political views. And the view that they reached through this process, whether sympathetic to religion or hostile to it, whether socially conservative or socially liberal – whatever it was, it was authentically theirs. For many students, university might be the only time in their lives when they have both the time and the relative freedom to embark on this exploration. A generation deprived of that freedom may never truly appreciate what it has lost.
The second answer, as John Stuart Mill saw, is that even if you have grasped the truth, you can hardly be said to know it if you cannot defend it against objections.16 In short – you cannot know that something is true unless you know why it is true; and you cannot know why it is true unless you know why at least some alternatives are false. In the teaching of my own subject, it is vital that you are willing to challenge the students’ most basic assumptions, even (perhaps especially) if you share them. Both the student and the tutor might be convinced, for instance, that economic immigration is a net positive for developed countries, that capital punishment is a net negative, and that abortion raises no serious moral concerns. And yet in teaching these subjects the tutor may have a pedagogical duty to play devil’s advocate – to question the arguments for these positions and to put the best possible case for the opposite. Probably there is no more effective way to get the student to think for themselves. An atmosphere in which no visiting speaker can, and no tutor has the confidence, even in teaching to, voice these objections, is one where it is hard to see how education – at least that kind of education – can happen.
Let me finally, and briefly, address one last argument. I have heard it argued that all this fuss about free speech is a storm in a teacup arising from an excessive focus on Russell Group universities, and indeed on humanities students at those universities. For most students, the emphasis on a wide range of ideas is simply misplaced. For most providers too. For small providers, or specialist providers – even perhaps for the big ones – all this talk about activism and questioning of basic presuppositions is misplaced. They just want to finish their studies – in engineering, or midwifery, or film-making, or whatever it may be – and get a good job. Why then is there a duty on all providers to ‘take reasonably practicable steps’17 to secure, and to promote the importance of academic freedom within the law for all academic staff, and freedom of speech within the law for all staff and students?
Part of the answer goes back to what I said at the very start, about freedom of speech as a process value. It is essential for our society to function that we settle disputes not through violence but through discussion. For this to happen, it is essential that we learn to tolerate views, and the expression of views, that we might find wrong-headed and even appalling. England, between the Reformation and 1689, learnt this lesson at the most hideous cost. Over a century and a half of persecution, political paranoia and Civil War, she, like much of Europe, tore herself apart over religious disagreements. We learnt, although we have struggled to remember, that words are not a kind of violence. They are the alternative to violence; and if we as a society forget this then we as a society are finished.
Tolerance for disagreement is therefore a public good, like public utilities or clean air and water. By promoting the value of free speech, in all who pass through them, whatever subject they are studying, our universities are helping not only their own students but also everyone else. That is why this duty falls, and ought to fall, upon all of them.
I will close with perhaps the most eloquent statement anyone ever made of this point. It was by an American judge, Brandeis, writing in 1927 in a concurrence effectively defending a communist who had been arrested after she gave a speech attacking racist lynch mobs.
Those who won our independence [he wrote] believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.18
It should also be a fundamental principle when we think about all our students: because we are educating them to become, not only nurses and scientists and architects and lawyers, but also citizens in our great democracy.