Left and right on free speech legislation

Professor Lindsay Paterson, emeritus professor of education policy at the University of Edinburgh, discusses the changed attitude of the liberal left to state legislation.

Something ideologically peculiar is happening in the partisan arguments around the UK government’s Higher Education (Freedom of Speech) Bill. This draft legislation would impose a statutory duty on English universities to guarantee freedom of speech for their staff and students (Lewis, 2022). It is currently progressing through the UK parliament. The oddity is this. A conservative government is controversially proposing to use the power of the state to compel civil society organisations – mainly universities and student unions – to uphold citizens’ freedom. At the same time, the mainly liberal and left-wing opposition to this proposal is asserting the autonomy of civil society as the best guarantor of human rights. What makes this so odd is that it reverses more than a century of presupposition that the left favours the state and that their opponents don’t. What’s going on?

On the face of it, the answer might seem to be a simple matter of politics. The opponents of the legislation claim that the concerns about freedom of speech are exaggerated. Thus the Russell Group of research universities (which includes Edinburgh) said in 2021 – when the Bill was introduced – that there was no need for state interference: “our universities are committed to the open and rigorous contestation of ideas”. They added that they want assurances that “new regulations and legal actions are proportionate, and that they do not lead to large increases in red tape”. Universities UK – which is the club of university vice-chancellors and principals – similarly called for legislative restraint: the Bill should ensure that “it is important that additional legislation and duties placed on universities are proportionate.”. The University and College Union alleged that the Bill is a “heavy-handed ministerial interference in the education system, which will further imperil the freedoms it purports to protect”.

Supporters of the government’s Bill assert the importance of placing constraints on institutions that have usually been held to be fundamentally independent of state intrusion. In a paper for the Free Speech Union, Ahmed et al. (2022) doubted that freedom of speech is safe in universities’ hands: “we do not and should not simply ‘trust’ universities, or any public body, to do the right thing – the rule of law demands far more when it comes to fundamental rights such as free speech”. In a very general statement doubting the integrity of civil society, they concluded that “autonomous institutions can be as great a threat to expressive freedom as governments”.

But these political disagreements reflect something deeper. The classic left position was that the institutions of civil society (such as universities) are agents of bourgeois hegemony. Cohen and Arato (1997, p. 346) note that Marx “equat[ed] civil with bourgeois society and the separation of state and society with political alienation”. Others on the left, they further explain, added to this accusation recurrently, Foucault, for example, believing that “the very norms of civil society … combine into a new and seamless system of bondage”. Hannah Arendt argued that the public sphere declined with the development of the modern state, so that the state itself became an enemy of the autonomous expression of ideas. During the rediscovery of interest in civil society in the 1980s as a by-product of the democracy movements in eastern and central Europe, the western academic left maintained the scepticism, as Keane (1998, pp. 68-74) found. For all these critics of civil society, only state action could reliably entrench the freedom of citizens against the vested interests, and against what Foucault would call the hidden capillaries of power which the institutions of civil society embody.

How did we get here? One important reason is that the ideological character of many of the institutions of civil society has changed. Far from being the conservative brakes to social reform that they were widely perceived in the UK to be even as recently as, say, the Labour government in the 1960s (for example by radically leftist minister such as Tony Benn), these institutions are now led and staffed by people who think of themselves as being in the vanguard of social reform. Pre-eminent in this change are the universities, which also are one of its main sources, having educated the mainly graduate leaders of civil society. As Kaufmann (2021) has shown, academics are now predominantly on the political left. Faced by a conservative government, institutions which are led by university graduates – and which are advised by academics – thus tend to place themselves as the progressive opposition.

This shift in civil-society ideology does strengthen pluralism in a country such as England where there is a strong strand of conservatism, and in that sense is a welcome addition to freedom of debate. But it does also have the effect of curtailing the pluralism of civil society itself. The democracy movements about which Keane writes remind us of why that matters. They rested on the premise that, as Timothy Garton Ash (2016, p. 209) puts it, civility “is an attribute of civil society”. Without civility, debate is fruitless: “civility … does not demand warmth or friendship. It just asks that you stay in the same space and, as wartime negotiators say, keep talking”. Civility also entails what Nagel (1998, p. 5) calls the “conventions of reticence and privacy that allow people to interact peacefully in public”, by which he means that, because every one of us is full of ethical contradictions, denouncing these in people with whom we disagree is ultimately a threat to the very existence of dialogue. Hall (1995, p. 26) has another term for the “good manners” that are a necessary condition of civilised discourse: “moderated hypocrisy”. We should concentrate on the actual content of arguments, even when we know about the inevitably flawed characters of those who are making them.

This point about civility could be taken as the leitmotiv of the present draft legislation. But for it to have the intended effect, it will have to work with civil society, which is where the opposing arguments also have a point that ought not to be ignored. If it is historically ironic that the proponents of freedom here are dependent on action by the state, so also is it ironic that the opponents are, in effect, depending on arguments that have always been used by conservatives against the political left’s faith in the state. This was most famously Edmund Burke’s argument against the potentially violent statism of the French revolution, his belief that social reform can be brought about only through the wise, cautious development of social institutions and human customs: “a disposition to preserve, and an ability to improve, taken together, would be my standard of a statesman” (Burke, 1968 [1790], p. 267). In the present debate about legislative guarantees of free speech, the opponents of the legislation are, in this sense, Burkean conservatives.

The irony is even more apparent if we contrast the debate about the UK government’s proposed legislation with the parallel debate about “hate crime” legislation in Scotland, an attempt to use the law to curtail the expression of views that some people might judge to be offensive. Here, the positions of the protagonists are reversed. Although not writing about this Scottish legislation specifically, a comment from Mchangama (2022, p. 338) sums up the principles that underpinned it: “unlike the civil rights movement of the 1950s and ’60s, many proponents of racial justice [now see] free speech as a threat to, rather than a precondition for, justice and equality”. The supporters of free speech in Scotland are sceptical, worrying that such strongly intrusive state action might have a chilling effect on more general freedom of expression.

Arendt – despite her widely cited analysis of the erosion of civil-society autonomy by the modern state – provoked much controversy at the time of that US civil-rights movement by doubting that government had any place in the reform of citizens’ morals. She argued that “desegregation can do no more than abolish the laws enforcing discrimination: it cannot abolish discrimination and force equality upon society” (Arendt, 1959, p. 50). That could be quoted directly as a critique of the Scottish hate-crimes legislation. It could also be taken as a cautionary reminder to the supporters of the UK government’s free-speech Bill.

Nevertheless, the two positions might be reconciled by paying attention to the actual outcomes in social change of these historical debates. In practice, legislation in democracies has only ever changed society by slowly modifying people’s morals and behaviour, a position that might be taken to vindicate Burke even when democracy and equality have gone far further than he ever contemplated. But to learn these lessons, both sides need more honesty. The generally leftist opponents of the Higher Education (Freedom of Speech) Bill need to explain why state action on this matter is regrettable when they favour state action on so much else. If these opponents accept that legislation can only ever set the conditions for reforming people’s behaviour, then why do they not accept that this legislation is intended to do just that?

On the other hand, those of us who hesitantly support the legislation need to acknowledge that, even if it is necessary, it cannot be sufficient to change how people think and behave. As Professor Arif Ahmed has been quoted pointing out, the challenge is to change the culture (PoliticsHome, 2021). The legislation will be effective only if it is accompanied by the painstaking work of changing the views of universities, academics and students. In Scotland, to which this legislation does not apply, that is the only way ahead anyway, because there is no political support for similar legislation in the Scottish parliament. In Scotland, indeed, the weakness of political conservatism makes the challenge of encouraging free speech all the more important, and all the more difficult. Guaranteeing freedom to speak does not itself encourage people to speak, and even less does it encourage the kind of civility that Garton Ash and others say is necessary to a civil society. That can be achieved only by open-minded education.

References

Ahmed, A., Biggar, N., Kaufmann, E., Stokes, D. and the Free Speech Union (2022). “Higher Education (Freedom of Speech) Bill: Response to second reading debate, House of Lords”. Free Speech Union. https://freespeechunion.org/wp-content/uploads/2022/09/HEB-Response-to-Second-Reading.pdf. [Downloaded 3 December 2022]

Arendt, H. (1959). “Reflections on Little Rock”. Dissent, 6(1), pp. 45-56.

Burke, E. (1968 [1790]). Reflections on the Revolution in France. Harmondsworth: Penguin.

Cohen, J.L. and Arato, A. (1997). Civil Society and Political Theory. Cambridge, Mass.: MIT Press.

Garton Ash, T. (2016). Free Speech. London: Atlantic.

Higher Education (Freedom of Speech) Bill. UK Parliament: House of Lords, Bill 79 (as amended on Report), 7 December 2022. https://bills.parliament.uk/.

Hall, J.A. (1995). “In search of  civil  society”. In J.A. Hall (ed.), Civil Society, Cambridge: Polity, pp. 1-31.

Hate Crime and Public Order (Scotland) Act 2021. Scottish Parliament, asp 14.

Kaufmann, E. (2021). Academic Freedom in Crisis: Punishment, Political Discrimination, and Self-censorship. Centre for the Study of Partisanship and Ideology. https://cspicenter.org/wp-content/uploads/2021/03/AcademicFreedom.pdf. [Downloaded 15 March 2021]

Keane, J. (1998). Civil Society. Oxford: Polity.

Lewis, J. (2022). Higher Education (Freedom of Speech) Bill: Progress of the Bill. Briefing Paper 9295. London: House of Commons Library.

Mchangama, J. (2022). Free Speech: A History from Socrates to Social Media. London: Hachette UK.

Nagel, T. (1998). “Concealment and exposure”. Philosophy and Public Affairs, 27(1), pp. 3-30.

PolticsHome (2021). “Academics And Officials Have Questioned The Evidence Behind Gavin Williamson’s ‘Excessive’ University Free Speech Bill”. https://www.politicshome.com/news/article/academics-and-officials-have-questioned-the-evidence-behind-gavin-williamsons-excessive-university-free-speech-bill. [Downloaded 10 December 2022]

Russell Group (2022). “Higher Education (Freedom of Speech) Bill 2021”. https://russellgroup.ac.uk/media/6021/higher-education-freedom-of-speech-bill_hol_november-2021.pdf. [Downloaded 6 December 2022]

Universities UK (2022). “Higher Education (Freedom of Speech) Bill”. https://www.universitiesuk.ac.uk/sites/default/files/field/downloads/2022-06/uuk-briefing-free-speech-bill-lords-second-reading.pdf. [Downloaded 6 December 2022]

University and College Union (2022). “Briefing on the Higher Education (Freedom of Speech) Bill: House of Lords Second Reading”. https://www.ucu.org.uk/media/12919/UCU-briefing-on-the-Higher-Education-Freedom-of-Speech-Bill-Jun-22/pdf/UCU_Lords_briefing_on_the_HE_FoS_Bill__Jun_22.pdf. [Downloaded 6 December 2022]

This article originally appeared on the Edinburgh AFAF Blog on 12 December 2022 and is reprinted here with permission from Professor Paterson. It is licensed under a Creative Commons Attribution CC BY 3.0

(Illustration: Drawing by Jacques-Louis David of the Tennis Court Oath (1791). Public domain)