Welcome to the FSU’s weekly newsletter, our round-up of the free speech news of the week. As with all our work, this newsletter depends on the support of our members and donors, so if you’re not already a paying member please sign up today or encourage a friend to join, and help turn the tide against cancel culture. You can share our newsletters on social media with the buttons at the bottom of this newsletter to help us spread the word. If someone has shared this newsletter with you and you’d like to join the FSU, you can find our website here.
Debating Free Speech and the Right to Protest
Members may have read over Christmas of the arrest of the anti-abortion campaigner Isabel Vaughan-Spruce for standing silently in a street near an abortion clinic in Birmingham (FSU Advisory Council member Prof Andrew Tettenborn wrote about it for Spiked). She has been charged with four breaches of the ‘Public Space Protection Order’ (PSPO) imposed by Birmingham Council which prohibits certain activities in the area around the clinic. It’s a fascinatingly complex case – and highly charged because the Government is about to impose ‘buffer zones’ around every abortion clinic in England and Wales. Isabel’s defenders argue that her case represents a worrying suppression of silent prayer and is a free speech issue; supporters of Birmingham Council counter that the ‘buffer zone’ within which Isabel chose to stand has been imposed to protect women from harassment while accessing legal medical treatment.
The debate about abortion clinic ‘buffer zones’ (or ‘censorship zones’ as their opponents term them) raises many important questions about speech and protest. What constitutes protest? The anti-abortion side say they are not protesting but praying or offering ‘counselling’ to the women about to go into the clinic. What constitutes speech? Does it include images, silent prayer or singing? How does the location of speech affect society’s willingness to tolerate it? Is this the thin end of a censorious wedge, whereby it will soon become illegal to protest within ‘buffer zones’ surrounding other places? Or is it fine for the Government to legislate against a specific set of protestors because it strongly disapprove of their views?
We are delighted that two of the main protagonists in this debate have agreed to join us at a live event in London at the end of this month to thrash out these issues: Ryan Christopher, director of pro-life group ADF International, and Ann Furedi, author of The Moral Case for Abortion and former chief executive of the British Pregnancy Advisory Service (BPAS). They will be joined on stage by the FSU’s Chief Legal Counsel, Bryn Harris, and FSU Case Officer Tim Cruddas, who was a serving police officer for 26 years and has, on numerous occasions, been responsible for the policing of protests and other public order incidents.
Members who are able to get to central London on Tuesday 31st January can book tickets here. The event is open to the public, so please feel free to spread the word and encourage others to come along. Members can also join the live event free of charge via Zoom. Please register here if you’d like to watch it.
We look forward to seeing as many members as possible at our series of Regional Speakeasies taking place around the country during January and February. Please visit the Events page on our website to find the event nearest to you. Don’t forget to register for your free place and, even better, book a ticket for a friend or colleague who might be interested in finding out more about the FSU. It’s a great opportunity to ask questions of senior FSU staff and engage in discussion about the biggest free speech issues of 2023.
Maths professors at top UK universities urge Government to protect academic freedom
A dozen leading maths professors at top UK universities have written to Claire Coutinho, the Parliamentary Under Secretary of State at the Department for Education, whose brief includes universities, urging the Government to pass the Higher Education (Freedom of Speech) Bill in its original form, despite opposition in the House of Lords and from the well-funded (and well-connected) higher education lobby (GB News, Telegraph, Times).
Signatories of the letter include Prof Abhishek Saha of Queen Mary University of London, Prof Jane Hutton, a medical statistician who works at the University of Warwick, Dr Yuri Bazlov from the University of Manchester, and Prof Alan Sokal of University College London (who is arguably best known for the so-called 1996 ‘Sokal Affair’ in which he mercilessly skewered the woke-before-woke-was-a-thing field of ‘postmodern cultural studies’).
The intervention comes in the wake of a letter to the Education Secretary that was pulled together by the FSU and signed by over 50 academics that had a similar message: “now is not the time for the Government to lose its nerve” (Telegraph).
As the FSU has long pointed out, the Higher Education (Freedom of Speech) Bill is a vital piece of legislation that will strengthen the right of academics to discuss, debate, and debunk other views (you can read our most recent briefings here, here and here). Although there are already several laws protecting academic free speech on the statute books, they are more honoured in the breach than the observance. What is so promising about this Bill – at least as originally drafted – is that it provides for the enforcement of these laws. Specifically, Clause 4 created a statutory tort to enable academics and students to sue universities and students’ unions for compensation if they breach their new duties to protect free speech on campus, as set out in the Bill.
However, this element of the legislation met with strong opposition during the Bill’s second reading and report stages in the House of Lords. In an attempt to strike a compromise, the Deputy Leader of the House, Earl Howe, subsequently tabled an amendment that would require students and academics to only seek compensation in the courts as a last resort, after first pursuing complaints through the procedures of the relevant university and England’s higher education regulator. (You can read the Government’s amendment here.)
Commenting on the amended version of the Bill in their letter, the mathematicians wrote: “We do not think this would give us the protection that we need. Universities have vast resources and power compared to individual academics. If academics are required to exhaust all internal processes (which can take a long time) and then spend up to 12 months taking their complaint through the Office for Students before they can begin the lengthy process of going to the courts, we believe that the personal cost of raising any complaints would be far too high, rendering the system ineffective.”
Prof Jo Phoenix, a professor of criminology and gender critical feminist who quit the Open University after it failed to protect her right to free speech in the face of attacks by transgender activists, was inclined to agree. “Horrendous” was how she described the amendment to the Telegraph, adding: “To now think that I would have to go through a lengthy complaints process, well let’s just say that this process is an excellent way that university managers can kick the problem in our universities into the long grass.”
As it happens, this attempt by the Government to win round its critics in the Lords by essentially defanging the statutory tort didn’t work, with peers voting to scrap the clause in its entirety after Lord Willetts, who led the opposition to the statutory tort, successfully argued it would cause an excess of burdensome and costly litigation for universities to deal with (Telegraph, Times Higher).
Claire Coutinho has since suggested that the government will now “dig its heels” in over Clause 4. But the question remains: which version of Clause 4 does Ms Coutinho have in mind? The minister has since stated that the Government remains “resolute in our commitment that academics and speakers will have the right to go to court where this fundamental right has been denied”, which leaves open the possibility of the tort being restored in its original form (Telegraph). Yet while speaking at an Office for Students event in December, Ms Coutinho also stated that the right to sue should be a last resort, which effectively brings back into play the ‘compromise’ the Government proposed but which the Lords rejected.
The FSU believes the statutory tort is what gives the legislation’s new free speech duties teeth, and if that’s defanged, the Bill will be much less effective. As Baroness Fox pointed out during the debate at report stage, one only has to look at the FSU’s case files to find hundreds of examples of students and academics who were suspended and went through disciplinary procedures for misspeaking or saying the wrong thing that would have been treated a lot better had they had the right to sue universities in the county court.
Why? Because as the mathematicians explain in their letter, “The very existence of the possibility of legal remedy will send a clear signal to universities that they must take academic freedom seriously. A new statutory tort will incentivize higher education organisations to prioritise values around free speech in the same way that the tort in the Equality Act 2010 has incentivized them to prioritise values around anti-discrimination.”
MPs will consider the Lords’ amendments when the Bill returns to the House of Commons later this month. In the meantime, the FSU will be lobbying Ms Coutinho to restore the tort as it originally appeared and not in a neutered form.
Arif Ahmed shortlisted to be Government’s new Director of Freedom of Speech
Prof Arif Ahmed, a professor of philosophy at Cambridge, is the frontrunner in the race to become what the Telegraph are calling “the Government’s new Free Speech Champion”. The position, formally known as the Director for Freedom of Speech and Academic Freedom, will be created via the Higher Education (Freedom of Speech) Bill, with the chosen candidate appointed to the board of the independent regulator for higher education in England, the Office for Students (OfS).
The very fact that this role exists is a timely corrective to the claim frequently made by the Bill’s critics – both in the House of Lords (Collins, Coventry, D’Souza, Wallace, Willetts) and the professional higher education lobby – that the establishment of a new statutory tort enabling students and academics to sue their universities if they breach the new free speech duties will cause an excess of frivolous, burdensome and costly litigation for universities.
It is virtually certain, for instance, that a judge would pressure any claimant to exhaust the OfS route before proceeding with a claim in the civil courts – and the claimant would risk significant adverse costs if he or she proceeded in those circumstances. In that sense, the Director will be the first port of call in any complaint procedure, investigating possible breaches of free speech legal duties, such as universities no-platforming speakers or dismissing academics because of their views, and advising the OfS on imposing fines. The scheme will be informal and free to use. Like any public decision-maker, the legality of his or her decisions will be reviewable by the High Court. This is a proportionate, sensible solution for those many cases where someone has been treated unfairly and court proceedings would be using a sledgehammer to crack a nut – for instance, a student disciplined for saying the ‘wrong’ thing. But for the more serious cases, the alternative remedy – taking a university to the county court – also needs to be in place.
Prof Ahmed has said that one of his biggest concerns about freedom of speech on campuses is the “direct intimidation and cancellation of speakers and academics” (FT, Mail, Times). He has also criticised universities “race awareness” training, which asks academics to “assume racism is everywhere”. He said some universities are taking “a corporate position on contentious issues” and are demonstrating a micro-management of speech, typically via harassment and discrimination policies (Times).
In December, the professor was appointed to the board of the Government’s Equality and Human Rights Commission, a group of experts charged with enforcing equalities legislation (Telegraph).
Will he get the OfS role too? He certainly faces tough competition from other shortlisted candidates, including Nick Hillman, director of the Higher Education Policy Institute think tank and a former special adviser to Lord Willetts, the Conservative peer (Times Higher). The Telegraph says that Lord Willetts is among those pushing for Mr Hillman to be appointed to the role.
Psychologist Dr Jordan Peterson ordered to undergo political re-education by Canadian regulatory body
Canadian psychologist and best-selling author Dr Jordan Peterson has been told by a government-regulated licensing body for practicing clinical psychologists in Canada that he must undergo “social media communications retraining” or face an in-person tribunal and potential suspension of his medical license (Epoch Times, New York Post, Reclaim the Net, Spectator Australia). Naturally, he’s refused.
“I practiced for 20 years without being investigated, this only started when I became a prominent public figure,” Dr Peterson told the Toronto Sun. He has a point. Only around a dozen complaints have apparently ever been made about him to the regulator, and they’ve all occurred in the past four-years – a period that coincides almost exactly with his rise to fame following a series of viral video lectures that were highly critical of ‘woke’ politics (Spectator). The psychologist also alleges that many of the complainants “falsely claimed that they were or had been clients of mine”.
The College of Psychologists of Ontario is apparently obliged to consider any written complaint filed against a member, but can decide to take no action upon completion of a preliminary investigation (Daily Wire). However, having reviewed the latest tranche of complaints made by
woke activists concerned members of the public, College Executive Director Rick Morris decided they warranted a full investigation. Following this high-level inquisition, the College of Psychologists of Ontario has demanded that Mr Peterson repent, acknowledging he “lacked professionalism” in public statements, and undergo a “coaching program” (Daily Wire).
The alleged Twitter transgressions include Tweets in which Peterson called Canadian Prime Minister Trudeau a “puppet”, described Trudeau’s former senior aide, Gerald Butts, as a “stunningly corrupt and incendiary fool” and a “prick”, and clips from Peterson’s January 25th, 2022 appearance on the Joe Rogan podcast in which he claimed that acceptance of radical gender theory is a sign of “civilisation collapsing”, and that climate change models are unreliable (Mail).
In other words, it’s perfectly lawful speech, which is all that should concern a professional licencing body. As the Wall Street Journal puts it, “professional bodies are supposed to ensure that practitioners are competent, not enforce political orthodoxies or act as language police outside the office”.
Not that the College of Psychologists of Ontario sees it that way. “The impact risk in this case is significant,” the body’s clinical inquisition concluded, because the comments “may cause harm”. It counselled Mr Peterson that a stint in a re-education camp would help “mitigate any risks to the public”. And there it is. The mantra that woke progressives clutch to like a tiny amulet against interrogation by post-Enlightenment logic and reason: “Language is a weapon, words can wound.” From the moment the intellectual titans of the 1970s ‘linguistic turn’ in the social sciences and humanities started exploring the ‘postmodern’ implications of Nietzsche’s aphoristic claim that reality is nothing more than “a mobile army of metaphors, metonyms and anthropomorphisms” it was only a matter of time before third and fourth rate minds in the generations that succeeded them started taking literally the throwaway military metaphor that everyone’s favourite nihilist had used in order to articulate his broader, philosophical point about truth, power and epistemology. As the Chinese proverb so aptly reminds us, when someone points at the moon, only a fool looks at their finger.
In a scathing letter to Justin Trudeau, Mr Peterson has since vowed not to participate in the process and condemned the regulator’s effort to stifle free speech. “I simply cannot resign myself to the fact that in my lifetime I am required to resort to a public letter to the leader of my country to point out that political criticism has now become such a crime in Canada that if professionals dare engage in such activity, government-appointed commissars will threaten their livelihood and present them with the spectacle of denouncement and political disgrace,” Peterson wrote. “There is simply and utterly no excuse whatsoever for such a state of affairs in a free country.” (National Post).
Dr Peterson’s experience highlights the changing role of professional organisations in regulating the behaviour – and speech – of their members. Where once these bodies would restrict themselves to upholding professional standards in the workplace, they now seem intent on collapsing entirely the distinction between occupational and private life.
In Canada alone, for instance, the Law Society of Ontario has been pushing for a mandatory diversity pledge for all lawyers, while the province of British Columbia recently passed a law that can result in doctors being jailed for up to two years if they are found to have spread certain types of “false or misleading information”, e.g. face masks don’t prevent transmission of Covid-19.
Similarly, over in the UK the FSU has had a glut of recent cases in which employees from a wide range of occupational backgrounds have got into trouble with their professional associations simply for expressing their entirely lawful beliefs outside the workplace.
Social worker and FSU member Rachel Meade, for instance, was recently sanctioned by Social Work England (SWE), the regulatory body for social workers, for Facebook posts on her private account that criticised some aspects of the transgender rights movement. SWE found Rachel Meade’s “fitness to practice was impaired by way of misconduct”, and argued that her actions had the potential to undermine public confidence in social workers even though there was no evidence her actual work had been affected (Mail, Times).
Barrister Sarah Phillimore was investigated by the Bar Standards Board over a period of two years over complaints that she had caused ‘offence’ by tweeting about her gender critical beliefs – thanks, in part, to our help those allegations have now been dismissed.
Then there’s James Esses, a former barrister who we’ve helped in the past. James recently won the right to sue the UK Council for Psychotherapy for discrimination over allegations the regulator instructed the Metanoia Institute in London, where he was studying, to have him thrown off his Masters course in psychotherapy for expressing gender critical views (Mail).
The FSU is campaigning for an amendment to the Employment Rights Act 1996 to make it impossible for companies to discipline staff for saying non-woke things outside of the workplace. Increasingly we’re finding that it isn’t HR departments per se, but external professional bodies and regulators that give the policing of this out-of-office behaviour the momentum that it otherwise might not have.
Happy New Year,