By Prof Steven Greer, Professor of Human Rights (University of Bristol Law School)
Freedom of expression has long been extolled by those who love freedom generally. For example, attempting to capture Voltaire’s commitment to it, historian Evelyn Beatrice Hall coined the famous phrase, wrongly attributed to the French philosophe himself – ‘I disapprove of what you say but will defend to the death your right to say it’. George Orwell also once memorably quipped: ‘If liberty means anything at all, it means the right to tell people things they don’t want to hear’. And, according to the European Court of Human Rights, this includes offending, shocking and disturbing.[1]
Spats, fall-outs, intellectual and personal feuds, have, of course, been commonplace amongst scholars since antiquity. And before the institutionalisation of the right to free speech in the west, the consequences could be much more serious than ruffled feathers. In the 16th century, for example, questioning the Catholic doctrine of transubstantiation – that the wine and wafers used in the Mass miraculously turn into the physical body of Christ upon consumption – could result in being burned at the stake as a heretic. In the centuries since, the west has become accustomed to vigorous, legally-protected, yet not always even-tempered academic debates. For example, arguably making a bid for the most disrespectful scholarly put-down on record, nineteenth century German philosopher, Arthur Schopenhauer, denounced his much more famous and influential contemporary, Hegel, as a ‘flat-headed, insipid, nauseating, illiterate charlatan’.
But since caustic rudeness and devastating critiques of ideas and publications are also exercises in freedom of expression, they are inescapably part and parcel of the rough and tumble of academic life. British universities, including their law schools, are, however, currently facing much more insidious threats. Student-led ‘safe spaces’ and ‘no platforming’ campaigns are well-known. Social media have also facilitated mounting intolerance and self-righteous militancy on the part of certain academics themselves. ‘In-group’ identity, claims to a monopoly of virtue and wisdom, and narrow conceptions of what is politically acceptable are increasingly being aggressively asserted, including against those with often only subtly different conceptions of broadly similar positions. Some seek to affirm their credentials by denouncing, condemning and vilifying their ‘near enemies’ through no-platforming campaigns, and hostile petitions, including mass-signatory letters to the press, typically demanding dismissal, either from editorships of journals or from scholarly employment altogether. Others do not shrink from work-place harassment and bullying, including attempts to block the publication of legitimate and lawful opinion before it sees the light of day. A particularly febrile current issue concerns transsexualism.[2] In March, for example, following pressure from activists opposed to the view that transgender female prisoners should be incarcerated separately from other female prisoners, the Open University cancelled a prison reform conference organised by its Centre for Crime and Justice Studies. And, in June, Sarah Honeychurch, a fellow of the Adam Smith Business School at the University of Glasgow, was sacked from the editorial board of the journal Hybrid Pedagogy for having signed an open letter to The Sunday Times.[3] She claimed that a programme run by the LGBT+ organisation, Stonewall, made unscientific claims and that debates about trans issues are being stifled on campus. A 750-name petition also demanded that fellow signatory, Professor Michele Moore of the University of Essex, resign as editor of the journal Disability and Society.[4] The core issue in all such cases is not whose views are right and whose wrong. It is, rather, that unless free and open debate is preserved, this question is unlikely to be satisfactorily answered.
Demands for scholars to be dismissed because their views make them unfit for the posts they hold potentially constitute an attempt to induce breach of contract and/or defamation, each of which is actionable including at the initiation of the employing institution. Universities also already have statutory obligations to ensure academic freedom, including freedom of expression. They are, for example, required by s. 43(1) of the Education (No.2) Act 1986 to ‘take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees … and for visiting speakers’. So far as is reasonably practicable, the use of premises should also not be denied any individual or group on the basis of lawful beliefs, views, policy or objectives. And according to s. 202(2) of the Education Reform Act 1988, University Commissioners must have regard to the need ‘to ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges …’. The Equality Act 2010 also obliges higher education providers and other public authorities ‘to have due regard to the need to … eliminate discrimination, harassment, victimization’ and any other prohibited conduct including with respect to belief.
The challenge is, therefore, to ensure mounting threats are effectively addressed without unreasonably curtailing free speech itself. Although there has been no significant litigation on the scope and content of relevant statutory obligations,[5] in the current climate universities should, nevertheless, be more scrupulous about discharging them. Institution-specific codes of conduct, including commitments to freedom of expression and to countering workplace bullying are, of course, commonplace. But they should be much easier to activate and much more vigorously enforced. Whether rudeness and disrespect amount to bullying or harassment is, in the first instance, a personnel management issue. But universities also have, at the very least, a procedural legal duty to investigate such alleged misconduct. While dismissal is likely to be justified in only the most egregious cases, reprimands and warnings should be administered wherever appropriate. The failure to tackle censorship lynch mobs and petitions calling for others to be dismissed could also, in principle, be judicially reviewed. Other relevant institutions – including the University and College Union, the Society of Legal Scholars, the Commission for Countering Extremism, Liberty and Article 19 – should also take this issue more seriously than is currently the case. Finally, freedom of expression itself offers a potentially powerful resource. In addition to more formal sanctions, those who exploit it in order to censor others should be named and shamed as publicly as possible.
[1] Handyside v UK, HUDOC, 7 December 1976, para. 49.
[2] Academics for Academic Freedom, https://www.afaf.org.uk/the-banned-list/.
[3] https://www.thetimes.co.uk/article/academic-faces-sack-for-letter-to-sunday-times-that-criticised-trans-training-gnbr8gxgm.
[4] https://www.ipetitions.com/petition/ds; See n. 2.
[5] See, eg D. Farrington & D. Palfreyman, The Law of Higher Education (Oxford University Press, 2nd edn., 2012), 451-468.