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U.K. Free-Speech Bill a Sound Solution to Censorship

A sixth form student looks at his A-Level results at The Crossley Heath Grammar School in Halifax, England, August 13, 2020. (Molly Darlington/Reuters)

A U.K. proposal known as the Higher Education (Freedom of Speech) Bill has attracted controversy and criticism from the Left lately. Some question whether legislation is the appropriate answer to growing threats against free speech, while others remain unconvinced that there is a necessity for government action at all.

The bill, if passed, would “allow the Office for Students (OfS),” which is an independent regulatory body of British higher education, “to monitor and enforce freedom of speech measures at higher education institutions, introduce a complaints system and redress for breaches of free speech duties through the introduction of a statutory tort, extend duties on free speech to students’ unions and create a role of Director of Freedom of Speech and Academic Freedom at the OfS.”

Given the well-documented threats to free speech on U.K. college campuses, the bill appears to be a reasonable solution to the growing presence of censorship, voluntary or involuntary, on U.K. campuses. And it’s perfectly plausible that legislation is the correct route to take.

A report published by ADF International reveals that “almost 40% of students admit fears that expressing their views on campus could adversely affect their future career opportunities.” Journalist Jenni Murray’s speaking engagement at Oxford University was canceled after a comment she made in a newspaper article that was deemed transphobic came to light; and a lecturer at the University of Central Lancashire, on the other hand, was dismissed for asserting that “faith is not something to be admired.”

Critics of the speech bill claim it is simply not necessary. The spokeswoman for Universities UK contends it would only “[duplicate] existing legislation and [create] unnecessary bureaucracy” without providing any protection to speech beyond the current legal framework. The general secretary of the University and College Union asserts that it relies on an “[incredible] over-exaggeration of issues.”

Let’s look at the legal tradition of free speech in the U.K. The basis of this right is established through the common law and the European Convention, which was incorporated into U.K. domestic law by the legislature through the Human Rights Act.

Of course, the American Constitution’s guarantee of free speech is more robust than that used in the European Convention, whose protection of freedom of expression is subjected to an array of exceptions. While the First Amendment states categorically that “Congress shall make no law . . . abridging the freedom of speech,” the European Convention cautiously states that freedom of expression “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law” for various reasons including “the protection of health or morals.” The common law, meanwhile, is constantly evolving in accordance with contemporary jurisprudence.

In the U.S., the First Amendment offers ample legal grounds for citizens to challenge laws restricting speech on the basis of constitutionality alone. But according to a policy paper issued by the U.K. government, there is “no clear means of enforcing compliance with the duties to protect freedom of speech” under the current legal framework. The U.K. does not currently have tort laws that apply specifically to free speech, and common-law jurisprudence has been reluctant to find violations of free speech on the part of colleges. The Higher Education Bill aims to fill in the gaps and allow individuals to file legal claims against educational institutions accused of free-speech violations.

A true defender of free speech would proclaim that the answer to wrong speech is invariably more speech. It is evident that self-censorship of students and the removal of speakers and educators whose opinions may offend all lead to a common result — which is narrowing the scope of information available to students.

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