The Higher Education Freedom of Speech Act (HEFSA) came into force in August. Its purpose was to address concerns raised by many over free speech, or the alleged lack of it, on British campuses. The Office for Students (OFS), the regulator of higher education, has produced some examples designed to help universities and student unions interpret the provisions of the act.
The act had been heavily criticised. In its original form it would have allowed academics to sue in tort those they considered to have impinged their free speech. The National Union of Students argued it effectively gave license to untrammelled hate speech.
It was also vigorously opposed by some Jewish groups. Ronnie Fraser, director of Academic Friends of Israel, criticised the act on four grounds. He argued it would give free rein to Holocaust deniers. Additionally he claimed by protecting controversial, even hate speech it would undermine disciplinary processes. He gave as an example a poster that appeared on a university campus with the slogan ‘intifada till victory’.
A third criticism revolved around concerns that the act undermined the International Holocaust Remembrance Alliance’s definition of anti-Semitism (IHRA). He quotes from the OFS’s draft regulations: “If any code, contract or policy that regulates speech, or has the effect of regulating speech, identifies a category of restricted speech (such as ‘harmful speech’), then such a category should be defined in a way which is not capable of restricting freedom of speech within the law, or academic freedom”. He claims that this would effectively require universities to remove IHRA or define anti-Semitism as not restricted speech.
His other criticism has to do with anti-Semitism training. Again he quotes from the OFS’s draft regulations: “providers, constituent institutions and relevant students’ unions should not require training or induction that imposes a requirement to endorse any controversial viewpoint or value-judgement.” As IHRA is controversial, and indeed exactly what constitutes anti-Semitism is disputed, it could be argued this makes anti-Semitism training in a university context undeliverable.
So is HEFOSA irrelevant to the issue of anti-Semitism on British campuses. Will it make it worse, or help reduce it?
Example six makes it clear that a university cannot ask a Jewish student or member of staff to remove a mezuzah from their door on the basis that some might be provoked by its presence. Nor can it be claimed that removing it would help foster calmer and more peaceful community relations on campus. Example four stresses that remarks designed to demean someone because of a protected characteristic counts as harassment. These are clearly designed to protect the individual from abuse and to protect individual self-expression through the display of religious symbols.
Examples 11-13 look like a response to events on American and British campuses triggered by the Gaza conflict. Protesters who set up simulated military checkpoints (11) or pro-Palestine encampments (13) are not protected under the act if their protests disrupt the core activities of a university which includes the holding of ceremonies. It is important to note encampments cannot be banned simply on the basis they are anti-Israel. However, proscribed groups can be prevented from coming on campus. For instance, Palestine Action could be refused permission to take part in a debate (example two). Disruption of classroom activities is governed by the same rules (example 12).
These examples essentially endorse the approach adopted by American universities of putting time, manner and place restrictions on demonstrations as a way of keeping campuses functioning. As such, to the extent they try to keep the atmosphere on campus from becoming overheated, they do address some of Fraser’s concerns about discipline. That is despite being phrased in different terms from his.
They certainly do not address concerns about Holocaust denial. In a way example 14 is relevant here. A lecturer cannot expound on topics not relevant to the course they teach during a lecture, but they can express controversial lawful views online. So where does this leave say a maths lecturer who teaches their syllabus in a normal manner but who posts and reposts Holocaust distorting/denying material online? Such situations might be governed by considerations such as that such behaviour would bring an institute into disrepute. However, Holocaust denial and distortion is not illegal in Britain. It can only be prosecuted under legislation covering incitement to violence or racial hatred. There is cause for concern here.
Nor does the guidance seem concerned to bolster IHRA. Example 18 deals with a speaker promoting biased views on a regional conflict (inevitably Israel/Palestine comes to mind). Such speakers cannot be banned from a campus unless there’s a risk of physical violence. Even then they can be allowed to speak online. Then again IHRA is increasingly difficult to justify given the rise of anti-Zionism in Jewish groups. As a result it would be unwise to make it the foundation of activities designed to combat anti-Semitism. Even so one can see why some people continue to believe in its importance, for example in light of the Royal College of Defence Studies’s decision to ban Israelis from enrolling from next year.
In short the act and the accompanying guidance does have some useful aspects but it will not be a game-changer in tackling anti-Semitism. Indeed, given the level of opposition to the act from some university chancellors, it is likely some will pretend that nothing has happened. This is worrying as it is an institution’s culture which is the best safeguard against anti-Semitism or any other form of racism.
PS: This article suggests that Holocaust denial will not be classified as protected speech under the new regulatory framework. That does not amount to an outright ban but it suggests HEFSA cannot be invoked as a defence in the event of prosecution.
Guy Whitehouse is a member of the Academy of Ideas and the Free Speech Union. His views do not necessarily reflect those of those organisations.
The views expressed in this article do not necessarily reflect those of the Radicalism of fools project.
PHOTO: "File:Wilkins Building 1, UCL, London - Diliff.jpg" by Diliff is licensed under CC BY-SA 3.0.