Free Speech Law to Allow Cancelled Academics to Seek Compensation?

And the "Insidious" underside of the iceberg.

Photo by Alexander Hafemann on Unsplash

The Telegraph has reported that the Education Minister Claire Coutinho is rallying Tory MP’s to fight back against the House of Lords’ attempts to scrap the tort in the Higher Education (freedom of speech) Bill that allows academics whose freedom of speech rights have been ‘wrongly infringed’ to seek compensation. The Lords’ justification for supporting universities opposing this is that “the risk of being sued would create a huge administrative burden and put societies off hosting events.” They advocated making it ‘a last resort’ after attempts to pursue complaints through the already lengthy internal complaints procedures. Cancelled academics have said this would make the free speech legislation “toothless.”

The academics who have been wrongly forced out of their jobs or penalised for expressing views that students (and members of faculty) dislike which include anything from gender critical feminism to a defence of Empire certainly have a point. The complaints procedures can go on forever when conducted internally amongst academics and allow for a lot of waffling, missing the point and going around in circles. This, in my observation, is often the case when it comes to academics discussing anything amongst themselves. When I have been in charge of organising discussions among academics, I have had to call on the services of those blessed few who are not inclined to do this to act as “academic sheepdogs” and herd the others back to the point. While the fine nitpicking and tangential argumentation that inevitably result from academics discussing anything can be fruitful and lead to many lines of enquiry, it is not terribly useful when trying to answer the question “Has this individual’s academic freedom been wrongly infringed?” Investigations into such a question really do need to be able to be enabled by clearly set out external legal requirements for protecting freedom of speech that can be seen to have been met or failed.

It does not seem likely that this would lead to greater complexity and administrative burdens on universities. In fact, it is more likely to produce less agonising over what may and may not be argued if the freedom of speech bill were able to clearly set out protections for speech. The argument that it would put societies off hosting events doesn’t really work either. Societies are already being put off from hosting events due to being held to ransom by universities being unable to guarantee security for anybody wishing to argue for any ‘problematic’ ideas.

However, while it would be a positive step if there were more protections for academic freedom coming from outside academia, this tort would only address the tip of the iceberg. As Nigel Biggar, an academic who faced cancellation for writing that Empire did have some positive impacts (an argument which does add some interesting and under-addressed points for discussion but which I, personally, cannot find convincing overall) said:

“So far, university leaders have doggedly refused to recognise the scale of the insidious repression of free speech on campus. 

“Against readily available evidence, the elite Russell Group continues to insist that the problem is confined to a tiny handful of event cancellations. 

This is undoubtedly true. In the UK, particularly, repression of free speech on campus is insidious. “Insidious” means something that sneaks up gradually and secretly causes harm and this makes it very difficult to get at for a number of reasons.

Firstly, the insidious approach often uses plausible deniability when it directly suppresses speech. I can only speak for my own experience as a minor contributor to these debates but I am far from alone in it. Only once have I directly been uninvited from a conference because my intended argument that claiming STEM to be white and Western was a bit racist was deemed to make others in the conference ‘unsafe.’ Much more often, I am informed privately that attempts to include me on any panels have simply been ignored. On several occasions, after having been invited to join a panel, the other panellists who had been going to take an opposing view suddenly had family emergencies or illnesses. Once I was informed that I simply had not made the shortlist for a job despite knowing that there could not be anyone more qualified as the job sought 10 of the best dissertation writers from the previous year & I had won the Dean’s Award for Outstanding Dissertation that previous year. In none of these cases can I be absolutely sure that I had been excluded due to my views. Maybe there were just better panelists every time, maybe the other panelists really did have unexpected emergencies every time and perhaps all the other candidates for that job had additional experience in teaching people how to write than I did. It is very difficult to say that you suspect there might be some undisclosed bias against you even when this kind of thing keeps happening without appearing both entitled and paranoid.

As many have pointed out, it is difficult to measure the scale of repression of free speech when we only see the people who have been explicitly uninvited or excluded from an event because of their views. We cannot measure the number of people who were never invited in the first place because of their views even though they had something to contribute and many people who would like to hear them. We cannot measure the number of events that did not take place due to genuine unforeseen circumstances or due to panellists dropping out because they did not like one speaker’s views. We can be fairly sure that the number is not ‘zero’ though and this does seem to happen a little too often to gender critical feminists, liberal critics of Critical Social Justice and conservatives to be explained away as an unfortunate series of accidents.

Secondly, the insidious approach works to ensure that somme people with problematic views never become academics in the first place or achieve any professional qualification that would enable them to have influence and be heard. Here are some examples of the ways in which students, graduates or postdocs who came to me for support have been sidelined.

• A graduate social worker who preferred not to state his pronouns was suddenly decided not to be answering his emails quickly enough to continue in his job even though he was answering them as fast as everybody else.

• The potential employer of a postdoc biologist who said he did not believe he had ever experienced Islamophobia suddenly found his previous work to be much less qualifying than he had on first reviewing it until the candidate made some typical ‘anti-racist’ posts, at which point his experience became relevant again.

• A psychology Masters student who had been getting good grades suddenly found them to plummet after she had queried whether regarding racism as relevant to all mental health problems suffered by patients of racial minority might cause them to receive less individualised and less effective treatment than white patients. She had to reference her ‘positionality’ in every essay to raise them again.

• A doctoral candidate working on the psychology of childbirth found her supervisory team to keep changing in a way that made it impossible for her to progress in her work after she referred to people who gave birth as “women” and did not choose to use an intersectional framework.

• A postdoc social scientist was suddenly found not to be publishing enough to be offered a full-time job after revealing himself to be a conservative even though he was publishing as much as everybody else who was offered one. He had to change universities and not mention his politics to thrive.

Anecdotes? Yes, certainly. However, I, as one individual, working within one organisation have seen more than a “tiny handful” of such cases and we do need some system in place to support people falling prey to them.

Thirdly, the insidious method works by people witnessing their colleagues being cancelled, aggressively protested, quietly shunted out or refused promotion due to expressing views that do not align with Critical Social Justice and self-censoring. The Legatum Institute reports that,

In the UK, 35% of academics feel the need to self-censor compared to 29% in Australia, 44% in Canada and 50% in the United States. While academics in the UK appear less likely than their counterparts to feel the need to self-censor, still more than one in three feel this way, suggesting somewhere in the region of 50,000 full-time academic staff in the UK are self-censoring their views on campus.

50,000 is definitely more than a handful.

I think it is clear that academics do need some legislative protection that operates outside of the university system to which they can appeal when their academic freedoms have been impinged upon and the Higher Education (Free Speech) Bill seems to offer something towards that. Universities do need to be accountable to bodies other than themselves for enabling the free exchange of ideas that produces the knowledge society relies upon them for. Ideally, they would have some kind of effective union dedicated to protecting academic freedom but unions in universities are not currently fit for that purpose.

This tort which will enable people who have demonstrably been silenced could certainly be useful. However, it will not directly help the insidious version of censorship going on including self-protective self-censorship and this seems to make up the majority of it. However, a few successful cases in which universities have had to compensate academics whose freedoms have been quashed could embolden more of the (understandably) fearful to speak more openly. If enough of the self-censoring academics speak out freely, they can spread the risk and also embolden others and create a tipping point where are just too many people to cancel, intimidate or protest into silence.

What would the self-censoring 35% say, I wonder? I would very much like to know what sorts of things a third of our best brains are thinking but not saying in institutions in which we pay them to think and speak. I doubt very much that almost any of them would advocate for white supremacy, patriarchy, the criminalisation of homosexuality or the persecution of trans people. It is much more likely to be a range of mainstream gender critical feminist, liberal, libertarian, religious and conservative views. Society would much better for being able to have such diverse viewpoints do battle on important subjects. Students would be much better for having the opportunity to learn to make arguments against any of the views they think incorrect or unethical and also more opportunity to test their own beliefs in open debate. This is how we make grown-ups and we certainly need more of those.