The counter arguments

"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.’ 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.

More erroneous counter arguments – and the law

"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.

"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. 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.

What the history of free speech teaches us

"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."

"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."

"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.

Free speech and the progress of ideas

"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."

"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

"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. 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.

This is not “a storm in a teacup”

"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’ 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?

Settling arguments though civilised debate

"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.

The most eloquent statement on liberty and freedom of speech

"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."

"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."