Journal

Joshua Rozenberg: Are universities meeting their legal duty to ensure free speech for students?

By on
32

Some institutions are acting within the law, but others may not be

Via Imgur
Via Imgur

“Freedom of expression and freedom of assembly are alive and well at Southampton University,” Mrs Justice Whipple proclaimed on 27 April.

And yet — as Legal Cheek reported last month — the High Court judge had just made it virtually impossible for two of the university’s academics to go ahead with a conference they wanted to hold there. Where does this leave free speech?

In their call for papers, professors Oren Ben-Dor and Suleiman Sharkh said their conference sought to “analyse the challenge posed to international law by the Jewish State of Israel and the whole of historic Palestine — the area to the west side of River Jordan that includes what is now the State of Israel and the Palestinian territories occupied in 1967”.

Since their starting point appeared to be that Israel had no right to exist as a Jewish state, the two professors won’t have been surprised to hear that Southampton received a number of objections to their planned conference. The university’s head of safety conducted a risk assessment and concluded that protests and counter-protests at the conference might involve between 400 and 1,000 demonstrators. To safeguard staff and students, it withdrew permission for the conference to take place on university premises.

That was last year. This year, the university offered to hold the conference in a fenced-off building on the edge of the campus, so long as the organisers paid security and support fees of nearly £24,000 from the £55,000 they expected to receive in funding.

Professors Ben-Dor and Sharkh claimed the university had breached their right to freedom of expression under article 10 of the human rights convention and to freedom of assembly under article 11. On their crowdfunding page, they argued that the event should have been policed at public expense. Otherwise, they said, “controversial debates could be silenced by anyone… simply threatening to hold a demonstration”.

The professors brought two claims for judicial review against their employers. First, they challenged the withdrawal of permission for the conference to be held in 2015. Subsequently, they challenged the decision that they should pay for security if the conference had gone ahead this year.

Mrs Justice Andrews refused them permission to bring the first claim. Their renewed application was refused by Judge Alice Robinson but, on appeal, permission was granted by Lady Justice Arden. Even so, Mrs Justice Whipple dismissed the academics’ first claim and refused them permission to bring their second claim. It’s entirely coincidental that all the judges who dealt with this case were women.

Dealing with the first claim, Mrs Justice Whipple said the university’s decision was a proportionate interference with the claimants’ rights. The university had not behaved unreasonably and there was no procedural irregularity.

The risks of holding the conference were very substantial,” she explained. “Any responsible organisation would have wished to develop a coherent plan to ensure a safe event and would have refused permission to hold the event until that plan was to hand.

Turning to the second claim, the judge found no problem with the conference organisers having to pay their own security costs.

I can see no reason why this would amount to any form of interference with the right of free speech,” she added. “The decisions in each case were motivated by well-founded concerns for the safety of people and property, and exemplify good and responsible decision-making by the [university].

What this judgment confirms is that freedom of expression and freedom of assembly are not absolute rights. They are, of course, subject to the restrictions set out in the second paragraphs of articles 10 and 11. No surprise there.

But wasn’t this, in reality, an attempt to silence a particular point of view? Not as far as the university was concerned: it had been willing to allow the conference to go ahead so long as disruption was kept to a minimum. And there was nothing to stop the organisers from holding their conference outside the university’s premises.

If it does go ahead, they will need to ensure that their speakers keep within the law. In response to the issues raised, perhaps someone in the audience might argue that Israel’s Jewish inhabitants should be forcibly deported — possibly to a country like the United States. Would that be lawful?

Under the Public Order Act 1986, a person who uses threatening words is guilty of an offence if the speaker intends those words to stir up religious hatred. It’s also an offence to show a threatening video with the same intention. Religious hatred means hatred against a group of persons defined by reference to religious belief or lack of religious belief.

However, conduct that merely stirs up ridicule or dislike, or which simply causes offence, is not covered by this law. Hatred is a much stronger emotion than ridicule.

What if the speaker did not intend to stir up hated against anyone? It’s also an offence to use threatening, abusive or insulting words if those words are merely likely to stir up racial hatred. Jews are likely to be regarded as a race for these purposes.

An unusual feature of universities and colleges of higher or further education is that they are under a duty to “take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”.

The Education (No 2) Act 1986 goes on to say that the use of the university’s premises — including student union premises — must not be denied to people on the grounds of their beliefs or objectives. Every university must have a code of practice for meetings, backed up by disciplinary measures.

Southampton University was able to show that it had complied with this obligation. But some universities may not be doing enough to protect free speech on their premises.

Writing last week about her inquiry into allegations of anti-Semitism at Oxford University Labour Club (OULC), Baroness Royall said there was a “cultural problem which means that Jewish students do not always feel welcome”. The Labour peer continued:

Many students reported that should a Jewish student preface a remark ‘as a Jew…’ they are likely to face ridicule and behaviour that would not be acceptable for someone saying ‘as a woman…’ or ‘as an Afro-Caribbean…’. This should not be tolerated.

In one of her recommendations, Royall said that OULC and other Labour clubs should “take action to ensure that all those who wish to participate in meetings feel that there is a safe space in order to discuss and debate without discrimination”.

Although the full text of her report was not published by the Labour party, we may infer that she found this “safe space” missing from meetings that were presumably held in Oxford colleges. Might that leave those colleges in breach of their duties under the Education (No 2) Act 1986? If it’s not safe for people with particular views to attend certain meetings, then maybe colleges should make sure that those meetings don’t take place on their premises.

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. This is the third in a series of articles that he will be writing for Legal Cheek about law-related topics in the news.

32 Comments

Quo Vadis

This is cynical casuistry and you ought to be deeply ashamed of it.

Anonymous

A tip for your A Level exams: don’t make a claim without evidence to support it.

Quo Vadis

I find it quite hilarious that Rosenberg uses (completely unsubstantiated) allegations of anti-Semitism at Oxford to suggest that colleges there are in breach of their obligations under the Education Act, whilst glossing over the very serious breach of those same obligations which resulted in Ben-Dor and Sharkh being barred from Southampton. The author attempts to justify this disparity by intimating that the Southampton conference could have broken the law. There is no evidence for this, of course, and Rosenberg gets out of admitting the same by presenting his argument as a series of po-faced hypothetical questions. He asks – what if the attendees were to call for the deportation of Israel’s Jewish inhabitants? What if the attendees were to use threatening, abusive or insulting words, in a manner likely to stir up racial hatred? According to Rosenberg, the organisers of the conference had already decided that Israel had no right to exist as a Jewish state (wrong), and thus similar conclusions can be drawn about the tenor of the conference itself. This is almost certainly unjustified, but the public will never know. The conference has now been squelched, and those who would prefer to deny the public the right to discuss controversial ideas have again carried the day.

Stephen Bellamy

Its rather more than the claims are unsubstantiated. The whole thing was an obvious and transparent scam from outset. Thanks to great work by Asa Winstanley we now have the gruesome details.

None of this, of course will be in the Reports of the good Baroness.

Professor Duncan French, University of Lincoln

Thanks Joshua – is not however the problem with many safe space policies that they kick-in if there is a risk of subjective offence; significantly below the POA 86 threshold? Problematic enough but especially so in light of the Education Act requirements?

Joshua Rozenberg

Duncan: That does indeed sound problematic. I wonder whether these policies would stand up to scrutiny in the courts.

Not Amused

Clearly the answer is to end this unfantile identity politics. Anyone who prefaces a remark with “as a” anything should be met with equal derision and scorn.

Ideas and arguments stand or fall on their own merits. Feelings are for children.

Anonymous

As a Legal Cheek poster, I whole-heartedly agree with you NA.

Anonymous

U use legal cheek? What a nubcake

Anonymous

Unless it is followed swiftly by the phrase “I have experienced”?

Anonymous

Horribly broad brush approach. As a doctor I believe… Followed by a medical opinion or comment on the NHS is hardly the same as somethings like as women (difficult to claim to speak for an entire gender).

When did subtlety become a vice in an argument.

Anonymous

At University we had a very very white guy who used to preface everything “As a black man I think…”

Anonymous

I’m not sure universities should have to pay security costs for a controversial event. If that is part of the duty to enable free speech on campus, then what is stopping, say, a neo-Nazi who doesn’t cross the line into inciting hatred from demanding a security detail?

I think that the responsibility for funding events should be with the society or academics involved. As long as the university doesn’t block them for their (legal) views, then I don’t see how they’re inhibiting free speech.

Anonymous

But universities always do. The often host controversial pro-Israel speakers (including government officials). It costs the university a lot of money to pay for security for those events, and they are forever tainted as collaborators with the apartheid regime

Danger Mouser Chief Agitator & Rabble Rouser

They should just change the wording then. Israel isn’t a ‘Jewish’ state, anyway. It’s pronouncedly secular – or considers itself as such, certainly.

I found this article boring, too, by the way. I didn’t read it to the end because zzzZzz.

Anonymous

Israel considers itself to be the homeland of the Jewish people. You’re an idiot.

The article has perspicacity and is well-written, Joshua should get commissioned for more stuff tbh – it’s a decent panacea to the hashtagged crap peddled by KK et al.

Anonymous

Yup, nice to read a piece by a proper journalist. Well written and well informed.

Danger Mouser Chief Agitator & Rabble Rouser

Absolute tripe. Israel is a secular state and considers itself as such. You have humanity’s largest known repository of information at your ignorant fingertips: use it.

Good suck up job that says nothing at all as well. It’ll be appreciated I’m sure.

Anonymous

I did, care to provide a citation to substantiate your bollocks?

Danger Mouser Chief Agitator & Idiot Engager

You clearly haven’t, or you’re just utterly incapable of both reading and reasoning.

Israel is a secular state by definition, and considers itself such.

Now counter that past your feeble attempts at amateur subversions. Dumbarse.

Anonymous

You really are a tit.

You’re not a comical creation of Legal Cheek are you? Like the new Occupy?

Danger Mouser Chief Agitator & Irrational Retard Trouncer

So, of course, nothing. As expected.

Concede accepted, many thanks, princess.

Anonymous

That wasn’t me – hi again! I asked for a citation, you weren’t able to provide one. However, to satiate your stupidity: Benjamin Netanyahu’s government has made the recognition of Israel as, and i quote, a ‘jewish state’ one of the central pillars of negotiations with Palestine. Further, since its inception to 2016, 75% of all laws passed have reflected the religious makeup of Israel’s populace; that is, one that identifies as Jewish. To espouse the idea that Israel is secular is patently wrong. The entire region literally exists in a morass of idealogical conflict between two diametrically opposed religions. I hope you’re not actually part of the legal profession – you’re terrible at this.

Anonymous

Why say “it’s entirely coincidental that all the Judges … were women”? What has their sex got to do with anything in this article? Would you have said the same if they were all men? It sounds really weird.

Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

Anonymous

So let me get this right. Southampton banning a conference which might be critical of Israel is a legitimate restriction on the right to free speech. An Oxford student society which did not actively provide a platform to Zionist students for their pro-Israel propaganda is failing to protect free speech.

So we should encourage pro-Israel propaganda on campus and ban criticism. That would be a fair balance of the right to free speech.

Incredibly disingenuous to present this as a comprise, to suggest some restrictions are necessary but we should still strive to protect free speech where we can. Everyone would agree with the principles in this article, I doubt many would agree with the rather obvious attempt to apply the principles in such an arbitrary manner so as to favour one particular viewpoint on campus.

Anonymous

Any mention of Israel and out come the foaming Corbynistas.

Corbyn. Sympathiser.

It would be nice to have some company, at least, though I must confess I rarely use bubblebath these days (usually reserved for special occasions).

Danger Mouser Chief Agitator & Idiot Engager

Ain’t that a fact.

ProfPAS

I doubt that the starting point of the Professor’s case was as Joshua Rozenberg suggests: ” Since their starting point appeared to be that Israel had no right to exist as a Jewish state.”

Much more likely it was that Israel did not have, and continues not to have, the right to occupy territory belonging to another state. Indeed it is established that Jews and Christians lived harmoniously with Arabs as citizens of Palestine prior to the declaration of the State of Israel as a new sate occupying the territory of the Palestinian state.

I am not an expert in international law but I doubt that an international court would recognise that the territory was gifted by God to the Jews. If this is so, then by what legal right were the Palestinians dispossessed?

ProfPAS

As is often the case Joshua Rozenberg’s articles are a stimulus for thought and discussion.
He may want to re-read Hannah Arendt (The Last interview and other conversations Melville House Publishing, 2013) to see how she grapples with the problem of an Israeli Sate for those individuals who delight in their Jewish heritage who choose not to be Zionists.

Israel’s Law of return (1950/1970) is particularly problematic. It applies to those with a maternal or paternal link to Jewish heritage and to those who convert to Judaism. It results in a situation where under Israeli Law religious discrimination is sanctioned by the State.

Anonymous

The picture at the top of this article is of some graffiti in Newtown, Sydney (Australia). I used to live next door to the workshop in question.

The former owner (he has since left) is a well-known racist (by which I mean he once turned up at Parliament house wearing a KKK outfit to protest the fact that Islamic women are allowed to wear Burqas : http://www.smh.com.au/federal-politics/political-news/protester-wears-ku-klux-klan-outfit-to-oppose-burqas-at-parliament-house-20141027-11ca5b.html). He also habitually drives around Lakemba (a suburb of Western Sydney) with a ute with “Ban the Burqa” written on it shouting into a megaphone.

Interesting image choice given the context of the article, but you guys should probably change it given the association.

Join the conversation