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 email. If someone has shared this newsletter with you and you’d like to join the FSU, you can find our website here.
Statutory tort restored to Higher Education Bill in big free speech victory!
The Lords Amendments to the Higher Education (Freedom of Speech) Bill were debated in the House of Commons this week, and there was a terrific outcome for academic freedom, viewpoint diversity and freedom of expression at English universities. Following the Government’s announcement earlier in the week that it would support the statutory tort in the bill as originally drafted, Lords Amendment 10 – which sought to remove the right of students and staff to sue universities that breach their speech rights in the County Court – was rejected at division by 283 votes to 161! (Times Higher).
This is a big victory, and it’s thanks in no small part to the thousands of FSU members and supporters that used our digital campaigning tool to email their MPs urging them not to dilute this important Bill. Indeed, the fact that 283 MPs ended up walking through the Division Lobby in support of the Government’s proposal to reject Amendment 10 is testament to the impact that our campaign work is having on our elected representatives.
In technical, legislative terms, clause 4 of the legislation as drafted creates the statutory tort which will allow aggrieved parties to take legal action. In the FSU’s view, it is this tort which gives the legislation’s new free speech duties teeth.
Claire Coutinho, the Under Secretary of State for Education and the minister responsible for the Bill, is the member of the Government we have to thank for restoring the tort. Writing in the Telegraph, she said it “will allow those who have suffered any loss – financial or otherwise – to seek redress through the courts where needed. I’ve spoken to many leading academics who share my belief that the tort is necessary to secure the cultural change needed on campus.”
Sadly, however, it was this aspect of the legislation that met with strong opposition in the House of Lords, where critics voted to strip out clause 4 in its entirety, as per Amendment 10 alluded to above. Their main criticism of the tort was that it would subject higher education providers to costly, time consuming and unmeritorious or vexatious claims.
Speaking during the debate, John Hayes was distinctly unimpressed. It was “disappointing”, he said, that the “academic establishment in the other place” had wanted to scrap clause 4, but not particularly surprising “because of course these people look after their own”.
Among the MPs who rose during the debate to support the Government’s decision to reject Amendment 10 was Miriam Cates. In a terrific speech, she pointed out that the tort will enable staff and students whose free speech rights are infringed to seek “rapid redress in a financially affordable way”. Without it, she said, “the free speech protections in the Bill could be enforced only by an independent regulator, which would likely result in dispute resolutions taking months, or by bringing a judicial review against the university in question, which is prohibitively expensive for almost all students and academics”.
Danny Kruger also took the time to say how “impressed” he was by Claire Coutinho for bringing the tort back in its original form. “She has resisted the academic establishment in the universities… to stand up for the principle of free speech and the importance of the tort,” he said. John Hayes agreed. It must have taken “determination, insight and… a degree of courage”, he said, “because it is easy to roll over when the big beasts in the other place roar in defence of the academic establishment”.
It’s also worth saying that the FSU is aware of dozens of academics who’ve been at the sharp end of cancel culture in British universities that have contacted Ms Coutinho over the past few weeks to tell her why they think the tort is essential. It is greatly to her credit that she has listened not to the academic establishment, but to the many academics who are not currently speaking their minds or pursuing important research topics, simply for fear of being ostracised by their peers or left at the mercy of university authorities that use all kinds of techniques to silence them.
Online speakeasy with Meghan Murphy – register for tickets here!
Our next members-only Online Speakeasy is ‘Defeating Twitter Bans and Defending Free Speech’, featuring FSU General Secretary Toby Young in conversation with Meghan Murphy. Join us on Zoom at 7.30pm on Wednesday 8th March for this online Speakeasy with Canadian journalist, writer and podcaster Meghan Murphy. You can register for the event here.
Meghan is the founder and editor of Feminist Current, a feminist website and podcast, and host of YouTube channel The Same Drugs. She has spoken up about the issue of gender identity legislation and women’s rights, including in the Canadian senate and the Scottish Parliament, and has had to endure repeated threats of death, rape, violence and censorship (Telegraph). On the topic of censorship, Meghan was permanently banned from Twitter in 2018 for saying that men are not women. Thankfully, the ban was lifted by Twitter’s new owner and CEO, Elon Musk, in November 2022.
You can find Meghan on Twitter here and Substack here. To whet your appetite for the FSU’s Speakeasy, you can listen to Meghan’s appearance on The Joe Rogan Experience here and her Triggernometry appearance here.
Regional Speakeasies – book your tickets here!
Having held very lively regional Speakeasies in Cardiff, Manchester, Edinburgh, Cambridge and Oxford, the FSU continues its ‘national tour’ next week, with events in Birmingham (15th February) and Brighton (20th February).
Come along to hear FSU staff members Tom Harris (Birmingham) and Toby Young (Brighton) discuss why free speech is worth fighting for. The Regional Speakeasies are a great opportunity to hear how our work is developing across many different fronts, including case work, research, campaigning and lobbying. In addition, there’ll be plenty of time for discussion, as well as socialising with fellow free speech supporters.
Do come along to one and bring curious friends and colleagues, not forgetting to book your places via our Events page, which you can find here.
Online Safety Bill to be used to outlaw “online misogyny”
During an appearance on Julia Hartley-Brewer’s TalkTV show this week, FSU Legislative Affairs Director Sam Armstrong expressed concern that legislators were treating the Online Safety Bill as a legislative ‘hobbyhorse’. He went on to recount a conversation with a peer in the House of Lords who is “openly describing the Bill as ‘a continent ready to be colonised. It’s there,’ he told me. ‘It’s the bare bones, and we’re going to pin onto it every single social whim that we’re concerned about.’ It’s going to be very dangerous,” Sam added, “because peers are going to try and ban anything they don’t personally happen to like.”
It was a point nicely illustrated by news that the Government may now use the Bill to crack down on what it terms “online misogyny” (Bloomberg, Guardian, Mail, Reclaim the Net, Sun). Under the latest version of the legislation, social media firms are already required by law to abide by their terms of service, which generally bar misogynistic abuse. Failure to enforce these terms will result in the regulator Ofcom fining them up to 10% of their global turnover.
However, a group of Conservative peers – Baroness Morgan, erstwhile David Cameron aide Baroness Bertin, and Baroness Newlove, a former victims’ commissioner – plan to put forward an amendment that will see the law go even further, granting Ofcom the power to fine social media platforms if they fail to abide by a code proscribing online misogyny. As the Telegraph points out, because the Labour Party has indicated it will support the amendment, the Government may now have to compromise or face defeat in the House of Lords.
At first glance, the peers’ proposal might seem reasonable. After all, who wants to defend misogyny, on- or offline? Yet much of the online content that the amendment’s backers seem to be concerned about is already illegal. Baroness Morgan, for instance, cites “threats of rape and death threats” that are “very much directed at women because they are women and girls” as examples of online statements that do not “necessarily break the illegal threshold” – but the former women’s minister must surely know that both are criminal offences, and serious ones at that (Mail). As Sam pointed out on Talk TV, surely it would make sense to enforce current laws rather than create new ones with the potential to inadvertently ban people from expressing their views on a plethora of issues.
Is the proposed amendment likely to have that effect? Absolutely. The problem with phrases like ‘online misogyny’ is that their meaning is potentially – sometimes deliberately – vague and subjective. At the level of practical, day-to-day content moderation, for instance, it will be difficult for Big Tech platforms to operationalise that concept with any meaningful sensitivity or specificity.
Faced with having to remove vague, subjectively defined ‘misogynistic’ content not already covered by existing laws – will misgendering or ‘deadnaming’ a transwoman count as ‘online misogyny’? – and threatened with enormous fines if they get it wrong it seems inevitable that social media platforms will take the course involving the least risk, tweaking their algorithms to adopt an ‘if in doubt, cut it out’ policy. Not only will this involve a huge measure of regulatory overkill, it will have a chilling effect on online freedom of speech.
And that’s before you factor in the plethora of activist groups that will inevitably petition social media platforms to remove any content they happen to find disagreeable on the grounds that it amounts to “online misogyny”. That might sound far-fetched, but it’s a threat that was presaged earlier this week when the Guardian asked women in the UK to share their experiences of being “subjected to online misogyny”, and quickly found itself subject to a barrage of replies from women for whom the main source of ‘online misogyny’ was, er, the Guardian (Guido).
All very amusing, of course, until you consider that proffered examples of the paper’s alleged ‘online misogyny’ included biased reporting on gender ideology, Owen Jones’s opinions, Owen Jones per se, the removal of JK Rowling from its list of celebrity birthdays, and articles that use gender-neutral terms like ‘birthing bodies’ and ‘chestfeeding’. Whatever one thinks about the Guardian’s position on women’s sex-based rights or its treatment of female writers like Suzanne Moore and Hadley Freeman (e.g., Critic, Mail, Sky News, Unherd), do we really want to see legislation introduced in this country that will make it easier for activists to pressure social media companies into censoring content that, however offensively ‘misogynistic’ some may find it, is in fact perfectly lawful?
The defiance of Salman Rushdie
Sir Salman Rushdie has spoken for the first time about being stabbed last year at an event in New York. In an interview with The New Yorker, the author and British citizen said he was “lucky… my main overwhelming feeling is gratitude”.
Sir Salman has lived with a bounty on his head ever since his Booker Prize-winning novel, The Satanic Verses, attracted the ire of Islamists the world over after it was published in 1988. Hardline clerics, community leaders and protesters condemned it as blasphemous. Copies were burnt, protests organised, and effigies of the author hanged, until eventually this agitation caught the attention of Iran’s Ayatollah Khomeini who issued his fatwa in 1989, offering $3 million to anyone who would kill the author, or anyone involved in its publication and distribution.
Ahead of a speech in August last year, he was attacked on stage by an Islamist sympathiser and stabbed in the chest, liver, hand, face and neck. Sir Salman spent six weeks in hospital, and has lost the sight in his right eye. But he has not lost his sense of humour, joking during his interview that people who turned against him during the fatwa have changed their tune. “People didn’t like it, because I should have died,” he said. “Now that I’ve almost died, everybody loves me. That was my mistake back then – not only did I live but I tried to live well. Bad mistake. Get 15 stab wounds, much better.”
At other moments, however, he is more sombre, speaking of his ongoing battle with PTSD, and admitting to not being “out of the forest” just yet.
“There have been nightmares – not exactly the incident, but just frightening,” he said. “Those seem to be diminishing. I’m fine. I’m able to get up and walk around. When I say I’m fine, I mean, there’s bits of my body that need constant check-ups. It was a colossal attack… I’ve found it very, very difficult to write. I sit down to write, and nothing happens. I write, but it’s a combination of blankness and junk, stuff that I write and that I delete the next day.”
In an unsettling piece for Spiked, Brendan O’Neill suggests the “dark truth” about the attempt on Salman’s life is that “it is not as alien to our civilisation as we would like to believe”. It was, he says, “really a more violent, more medieval manifestation of an idea that is tragically commonplace now – that words wound, feeling offended is terrible, and steps must sometimes be taken to blacklist or silence those who hurt your feelings”. Understood in that context, Haidi Matar, Rushdie’s would-be assassin, is not so much a last, desperate lunge against modernity as “a more menacing enforcer of the cult of cancellation that has Western society in its baleful grip”.
And yet, when it comes down to it, what has Matar actually ‘enforced’? For all Rushdie’s self-deprecating references to the “blankness and junk” of his recent output, the fact is that his first instinct while convalescing has been to write – and not just to write, but to make plans to write about the attack and its aftermath (“a kind of first-person sequel”, he says, to the third-person memoir, Joseph Anton). Beyond the barbarity of the physical attack, then, this defiant, unconquerable 75-year-old author has in fact retained the ability and the right to craft what fellow novelist Jeanette Winterson once described as “the language that books allow”; a way to undercut the literalism of dogma, to talk about complexity, to connect to other times, places, deeper sympathies, to explore the untamed open spaces of the imagination – a way to keep the heart awake to love and beauty, as Coleridge has it. Nor, for that matter, is Matar in any position to redeem his palpable failings as an enforcer, menacing or otherwise, commanding little more these days than his secret society of one and the contents of a prison cell around which he paces, up and down, up and down, lost in a darkness that will lengthen into his life.
The Worker Protection Bill and the spectre of the ‘banter police’
The FSU has been briefing MPs on the troubling implications for free speech and freedom of expression of a hitherto little-known Private Members’ Bill proposed by Lib Dem MP Wera Hobhouse, which is only now beginning to attract media coverage (Daily Star, GMB, Mail, Mail, Sun, Sun). Thanks to the Government’s support, the ‘Worker Protection (Amendment of Equality Act 2010) Bill’ sailed through the Commons last week and is on its way to the Lords.
As the Bill’s title suggests, the legislation Hobhouse and the government are proposing to amend is the Equality Act 2010, which among other things imposes a legal duty on employers to protect workers from harassment by other employees defined as “unwanted conduct relating to a protected characteristic” (i.e., age, disability, gender reassignment, race, religion or belief, sex or sexual orientation) where that conduct has the purpose or effect of “creating an intimidating, hostile, degrading, humiliating or offensive environment”.
The Hobhouse bill will expand that duty, rendering bosses additionally liable for harassment of their employees by members of the public that they come into contact with while doing their jobs. If we were just talking about, say, sexual harassment, that would be one thing. But this bill actually seeks to extend third-party liability to every type of ‘unwanted conduct’ already prohibited by the Equality Act 2010, including overheard conversations. In other words, if the bill becomes law, employers will have a duty to protect their workers from overhearing ‘upsetting’ remarks made not only by their colleagues, but by third parties as well.
Following pressure from the FSU, the government has amended the Bill so speech that involves “an expression of opinion on a political, moral, religious or social matter” is protected. That’s better, but it’s still not great. What about pub banter and football chants, for instance? As FSU General Secretary Toby Young put it in the Spectator, “If a barmaid or stadium steward overhears something they find upsetting that relates to a protected characteristic, even if it isn’t addressed to them, they can still sue their employers for harassment.”
The Bill presents a particular challenge to employers with public-facing staff because it makes them legally liable if they fail to take what Clause 1 of the Bill as drafted describes as “all reasonable steps to prevent third-parties” from harassing their employees.
Will employers be required to proactively prevent anything that might constitute harassment? And what might that look like in practice? Will pubs be expected to put up signs saying, ‘No banter allowed’?
Perhaps unsurprisingly, FSU Head Toby Young is now calling on the minister for women and equalities, Kemi Badenoch, to ditch the bill in its entirety. Writing in the Sun, he pointed out that with hospitality venues struggling to survive rising energy costs, inflation and train strikes, “more red tape is the last thing they need”.
Interestingly, Danny Kruger MP felt there might be another angle to this story. Granted, ‘red tape’ is the last thing some businesses need – but might some companies, following in PayPal’s censorial footsteps, actually embrace the idea of policing their customers in this way? With the legislation before the House of Commons last week, Mr Kruger took to the floor of the House to express concern at the ramifications of Clause 1’s ‘reasonable steps’ with regard to the type of censorship that it might not simply necessitate – Toby’s ‘red tape’ point – but also justify.
The problem, he said, spelling it out, was that “a censorious spirit has entered the soul of organisations that hold power and accountability in our country”, and “what we need to consider in drafting legislation [of this sort] is the actual effect of the law on the people who will be responsible for enforcing it”.
FSU Communications Officer