How to do things with academic speech

The UK Government’s proposed Bill on Freedom of speech and academic freedom (Higher Education), now before the third reading in the House of Commons, aims to regulate the expression of unpopular or controversial views at universities. The Bill has come at the back of the increasingly polarized debates about what kind of speakers should (or should not) be invited to speak (‘platformed) in academic environments.

Neither the question nor controversies around it are new or unique to the UK, but they have attracted increased media attention in recent years, owing to high-profile cases such as Kathleen Stock’s departure from the University of Sussex and Rod Liddle’s speech at Durham University’s South College in 2021. Once we move beyond the media frenzy over ‘cancel culture’, what stands out about the proposed Bill is precisely that it brings together concepts that have very different political genealogies and applications: freedom of speech and academic freedom.

In England, freedom of speech is defined by the Human Rights Act of 1998 as the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”. In the US, freedom of speech is usually derived from the First Amendment, which stipulates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”. In both cases, the emphasis is on freedom from, not freedom to: what Isaiah Berlin conceptualized as negative and positive freedoms, respectively.

The distinction between negative and positive freedoms is an important element in liberal regimes. It outlines how, and under what circumstances, governments should interfere in public life. Berlin’s view was that governments should stick to negative liberties, and abstain from prescribing positive liberties unless absolutely necessary. The proposed legislation, however, seems to shift from a negative to a positive meaning of speech.

Will speech set you free?

Traditionally, speech at universities was covered not by regulations concerning freedom of speech, but academic freedom. Academic freedom is an amalgam of Lehrfreiheit (freedom to teach) and Lehrnfreiheit (freedom to learn), the two principles Wilhelm Von Humboldt designated as foundational at the establishment of the University of Berlin. Like the University itself, the principles would come to be known as ‘Humboldtian’, denoting the unity of teaching and research, university autonomy, and academic freedom.

In its original form, academic freedom was a negative freedom. It was designed to prevent the government and other political actors, including the Church, from interfering in teaching and learning. This wasn’t entirely an altruistic act of self-control: science and technology were instrumental to 19^th century industries as well as the administration of empires. In this sense, academic freedom was always a precarious balancing act between universities and the state.   

The ‘gentlemen’s agreement’ (quite literally, because it was mostly between men) was subject to substantial revision in the second half of the 20^th century. Immediately after World War II, European governments increased investment into universities, to step up to the industrial and arms race; many of the widening participation initiatives fondly remembered today were part of this effort. The period of expansion, however, was followed by a period of contraction following public sector reforms in the 1980s and 1990s. These reforms entailed a privatization of public services, the reduction in union bargaining rights, and decreasing job security.

The first enshrinement of academic freedom in UK law came as part of these reforms. The Education Reform Act of 1988, which abolished the guarantee of permanent employment or ‘tenure’ in English universities, gave academics the freedom “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 the privileges they may have”. Replacing security with freedom was fully in the spirit of neoliberal governance. It is not a surprise, then, that early discussions around academic freedom in the UK revolved around the sufficiency of new regulation to protect academics from unfair dismissal. This concern was raised both by University and College Union (and its predecessors, AUT and NATFHE), and echoed by the Magna Charta Observatory.

The Observatory monitors the implementation of the Magna Charta Universitatum, an international and inter-institutional charter on academic freedom and university autonomy, currently signed by 904 institutions in 88 countries. Originally signed in 1988, the Magna Charta was part of the broader mobilization of higher education institutions in response to what was perceived as increasing – and worrying – threats to university autonomy and academic freedom by authoritarian governments across the globe. This concern was echoed in the 1997 UNESCO Recommendation on the status of higher education teaching personnel, another document outlining the international protections for academic freedom. Neither are referenced in the proposed Bill on Freedom of speech and academic freedom, despite the fact 46 UK universities are signatories to the Magna Charta today – many of them among the initial 388 in 1988.

Academic freedom, then, was about protecting academics from discrimination in the absence of protections associated with permanent employment; it was not, in any sort of way, linked to freedom of speech. On the contrary, universities and academics in Central and Eastern Europe used the Magna Charta to circumvent actual limitations on freedom of speech that existed in some of their countries before 1989. Which begs the question: what is ‘freedom of speech’ doing in academic freedom?

No such thing as (a) free speech 

Being invited to speak (‘given a platform’) at a university is usually a sign of legitimacy, recognition and prestige. For academics, who are the primary beneficiaries of academic freedom, this is certified through the process of peer review. By hiring someone to teach, universities essentially send the message “we believe this person is capable of conveying (as well as, ideally, producing) valid academic knowledge”.

When it comes to speakers outside academia, an invitation to speak signals that the university or its constituent unit thinks the speaker has something to say of relevance to the members of the community. While giving a talk is not the same as being given an endowed Chair, it still involves the transfer of symbolic as well as, not unusually, economic capital. Not offering a platform to anti-vaxxers, eugenicists, or conspiracy theorists is not a limitation on their freedom of speech: it is an outcome of a (fallible, biased, and often discriminatory, as evidenced by the persistence of ‘manels’) process of selection.

But invitation to speak at a university does more than just give recognition, prestige, or money to the speaker; after all, ‘controversial’ or ‘unpopular’ speakers do not lack audiences outside universities. An invitation to speak at a university creates an audience within it – one that, usually, comprises students. In this sense, it becomes part of education or at the very least of the vague concept of ‘student experience’. What kind of student or experience is fostered through the merging of academic freedom and freedom of speech?

Let’s take the example of a speaker with anti-trans views. From the standpoint of the new legislation, a listener (most likely a student) should be able to hear these views, examine the evidence, and decide whether they agree or not. For this kind of student, statements such as “Trans men are in fact women” are of the same kind as “Malaria is transmitted by mosquitoes”, “Monetary policy is better than fiscal policy”, or “Dune did not deserve the Oscar for Best Picture”. It does not even matter whether the speaker presents these views as ‘fact’ or ‘opinion’: presented as ‘fact’, they are protected by academic freedom; presented as ‘opinion’, they are protected by freedom of speech.

This idea rests on the assumption that the meaning of a statement (utterance) depends entirely on its content – what is being said – rather than on the combination of context and content: that is, what, how, where, by, and to whom. But if this were true, there should be little or no difference between me saying “out!” to a cat that has climbed into my wardrobe, an umpire shouting “out!” in a game, or a group of people holding a sign saying “out!” in front of a mayor’s office. It does not take much imagination to understand that the meaning of these statements – and their effect – is fundamentally different in each situation. In this sense, we need to consider what platforming views at universities means for the students in the room, especially if they are not able to know in advance what the speaker would say (or, for that matter, if the speaker is employed by the university in question).

Of course, it is quite possible some students are able to listen to any kind of views with a degree of detachment – to see the discussion about whether trans men are really men as, in the telling phrase, ‘purely academic’. Leaving aside that this universalizes a particular model of knowledge, for a significant part of the population – including, most obviously, trans students, but also everyone who has trans friends, family, or simply sees gender as in part an outcome of choice rather than birth – this simply isn’t the case. To them, the institution seems to be saying: if you cannot listen to this, you do not belong here.

In this sense, the act of platforming an anti-trans speaker is not equal to platforming someone who believes Dune is a bad film: it is equal to platforming someone who at best dismisses their audience’s intelligence, and at worst their right to exist. This does not imply we can never participate in an academic discussion about topics that concern us personally, of course. If this were the case, humanities and social sciences would have long lost their appeal. However, creating academic spaces where students’ right to exist is being questioned hardly meets the definition of an equitable, democratic, and inclusive education. On the contrary: it comes closer to education as practice of ritualized humiliation.

Pedagogy of/as violence

The idea of the pedagogical value of discomfort can be traced to the Victorian model of education as instilling discipline through both corporeal and spiritual means. The combination of cold rooms, ritualized violence (‘hazing’), and elimination of affective indulgence of English public schools survived well into the 20^th century in institutions that absorbed many of their graduates: elite universities. This, of course, does not mean that for the wealthy college life was entirely without comfort; but it was understood that (relative) privation – a single room without a bathroom – was a rite de passage serving to prepare or justify a life of privilege further down the line.

This fantasy is preserved almost intact in the ‘boomer’ generation’s nostalgic invocation of terrible digs and cheap cider as part of university experience, usually omitting that for many it still culminated in a comfortable (and permanent) academic position. The contempt towards departures from this model – from avocado toast to trigger warnings – is a reflection of the romanticization of the ‘misery of student existence’, or a naïve belief in social mobility. It should be obvious that decades of austerity, rampant climate change, and systematic erosion of networks of solidarity (like unions) mean that the latter no longer holds – but it is certainly easier to resort to tired tropes about ‘snowflakes’ than engage with what the future for current generations of students might actually be like.

The assumption that because some people see discussions such as whether trans men are really men as ‘purely academic’ everyone should be able to do the same – and that anyone who refuses to, by extension, is not a ‘real’ academic – is a rhetorical trope that turns a historically and socially contingent position into a universal and, worse, a normative one. It is true that it is easy to slip between them, and that university education is in part about learning to recognize this slippage. But it should not, in any sense, be a license for those who do that.

Jana Bacevic (@jana_bacevic) is a social theorist and sociologist of knowledge and has published extensively on politics of knowledge and expertise