Smita Jamdar explores how the Middle East conflict challenges free speech principles and practice
The latest stage of the Israel-Palestine conflict has once again thrust the question of free speech on campus into the forefront of university leaders’ minds. This time it is framed in terms of whether certain types of expression should be banned, rather than in terms of the usual anxieties about cancel culture, lack of ideological diversity and excessive censorship.
The challenge is one that universities have been grappling with over many years: at what point does a purported exercise of free speech cross a line, cease to be within the law and justify interference by the institution?
The Higher Education (Freedom of Speech) Act 2023 offers no assistance because its duties are not yet in force. Had they been, they would arguably not have supported a more interventionist approach. This is because they require institutions to have regard to the “particular importance” of freedom of speech in deciding what to do.
Similarly, the Office for Students’ regulatory approach, as set out in its Insight Briefing from December 2022, is that it stands for “the widest possible definition of free speech within the law”.
Guidance and duties
The Equality and Human Rights Commission has issued clear guidance that “views expressed in teaching, debate or discussion on matters of public interest, including political or academic communication, are therefore unlikely to be seen as harassment, even if they are deeply offensive to some of the people who are listening”.
By way of contrast, in response to the recent events in Israel and Palestine, the education secretary Gillian Keegan, and minister for skills, apprenticeships and higher education Robert Halfon, have written to universities, highlighting duties under Prevent, and the need to tackle discrimination, such as antisemitism.
In practice, then, how should universities walk this tightrope?
Universities are likely to face three categories of free speech issues: cases that, though the speech is offensive to some, are clearly within the law; cases that are clearly unlawful; and by far the biggest category, borderline cases, where reasonable people can reasonably disagree over whether something crosses the line or not.
Universities need to be able to spot the differences between the three and respond appropriately. In doing so, they will be required to make their judgments against the backdrop of a political and regulatory context that has until very recently consistently pointed towards prioritising the right of free speech over the right, for example, not to feel harassed or discriminated against.
The legal context will be heavily informed by the European Convention on Human Rights, and the recognition that freedom of expression—though a qualified right and therefore capable of being interfered with—should ordinarily be given priority protection in view of its vital importance in a democratic society. This extends to expression that shocks, offends, disturbs or is unpopular. Despite the recent ministerial intervention, therefore, the balance of legal and regulatory risk remains weighted towards prioritising free speech in borderline cases.
Acts of terrorism
However, in the context of the current conflict, there may be a greater than usual number of statements that fall within the “unlawful” category. Whether or not individuals agree it should be the case, Hamas is a proscribed organisation (PO) under the Terrorism Act 2000 on the grounds that it commits and prepares individuals to commit acts of terrorism. As such, students and staff may be at risk of committing a range of criminal offences if they speak in support of Hamas.
There are offences of inviting support for a PO; expressing an opinion or belief that is supportive of a PO, reckless as to whether the person listening will be encouraged to support it; and arranging, managing or assisting in arranging or managing a meeting to support a PO, to further the activities of a PO, or to be addressed by a person who belongs or professes to belong to a PO. More generally, there are offences relating to encouraging terrorism, including by glorifying terrorist events that have already occurred.
The link with a PO means that institutions may be at risk themselves of breaching their duty under the Counter-Terrorism and Security Act 2015 to have due regard to the need to prevent people from being drawn into terrorism if they do not take steps to ensure that the offences referred to above do not occur.
In addition, as the Prevent guidance underpinning this duty extends to exposure to non-violent extremism as well as actual terrorism, institutions would be justified in taking a cautious position when considering speech that strays close to support for Hamas, even if there is an argument over whether the actual offences referred to above have been committed.
Other public order offences—such as incitement to racial or religious hatred, or causing harassment, alarm and distress, as well as communications offences, such as sending grossly offensive messages with a view to causing alarm or distress or sending menacing messages—may also be relevant in the current situation.
Expression that constitutes or strays close to some of these offences may also constitute unlawful harassment under the Equality Act, notwithstanding the EHRC guidance referred to above, and institutions may be obliged to act on that basis too.
Context is everything
The complication is that all these potential legal breaches will themselves be construed by a court in a manner compatible with the European Convention right to freedom of expression, and so some cases that may be regarded as having crossed the line may in due course be successfully defended. The specific words used and the context in which the expression occurs will be highly relevant.
Given the overall complexity of the legal position, institutions may understandably be concerned that, whatever they do, they will face complaints and potentially legal or regulatory challenge.
The courts (and, one hopes, the regulators) will take into account that institutions are subject to competing duties and—provided that everything relevant has been considered, that an appropriate balance has been struck between the competing rights of those involved, and that any action taken has been proportionate—are likely to accept that institutions have acted reasonably.
To assist staff and students in understanding the judgments they are required to make, institutions may want to consider issuing context-specific guidance on freedom of speech, emphasising their duties to uphold this vital democratic right, but highlighting the risks of criminal offences or unlawful harassment.
Speech that transgresses the guidance should be investigated quickly and proportionate action taken where appropriate, to ensure that free speech parameters are respected. The aim should be to support students and staff to discuss the matters of public interest raised by the current crisis freely and robustly, without exposing themselves or others to the consequences of engaging in speech that is outside the law.
Smita Jamdar is partner and head of education at Shakespeare Martineau