Two weeks ago, the Office for Students (OfS), the UK’s university regulator, issued the University of Sussex with a fine of £585,000 for failing to uphold freedom of speech and academic freedom. This was the culmination of an investigation, taking over three years, into the university’s trans and non-binary equality policy statement, which the OfS decided had a “chilling effect” on the speech of staff and students. This was because that statement declared, among other things, that “transphobic propaganda” (i.e., gender-critical views) would “not be tolerated”. The trigger for the investigation was the turmoil surrounding the resignation of Professor Kathleen Stock, a philosopher at Sussex who was hounded out from her position by trans activists after having expressed the view that biological sex is real and matters.
The reaction from Sussex itself has been curious. One might have expected a certain amount of contrition and a period of self-reflection. But the response has, rather, been something like that of a wounded terrier. The OfS, according to Sussex’s Vice-Chancellor, Sasha Roseneil, is in the grip of a “sort of libertarian, free speech absolutism” that has led it to “persecute” an innocent university and “perpetuat[e] the culture wars“. A judicial review appears to be in the offing (you can read the Pre-Action Protocol letter here); the main thrust of the argument would appear to be that the OfS is wrongfully preventing universities from restricting lawful speech, and that this will in turn restrict universities’ ability to prevent ‘bullying’ that would otherwise be lawful – for example, in the form of an “academic shouting at students”. (Never mind, of course, circumstances in which large numbers of students shout at an academic, which would more accurately describe the Kathleen Stock scenario.)
As Roseneil herself put things with disarming honesty, “It cannot be that we are only able to expect people to obey the law.” Universities need to go beyond the law, you see, in restricting speech: they need to “create diverse, inclusive and equal working and learning environments“. And this means stopping people from saying anything that might upset anybody else – with the proviso, of course, that this applies more forcefully depending on who ‘anybody else’ refers to.
Sussex’s robust stance has been backed up by a deeply odd contribution from Professor David Green, Vice-Chancellor of the University of Worcester. “Using coercive powers of the state risks terrifying university leaders into a culture of compliance,” Professor Green told the Guardian, and this is “the very opposite of the democratic and free culture for which we should be working”. He continued with a sweeping declaration: “The OfS has chosen to deal Sussex and all England’s higher education institutions a lesson in authoritarianism.”
This is the reasoning of the Bizarro World: enforcing freedom of speech requirements with respect to an issue of immense public interest is “the very opposite” of a democratic and free culture; fining a university for failing to protects its staff from a mob is “a lesson in authoritarianism”. Up is down, left is right, backwards is forwards and cats are dogs. But we should not be satisfied with ending our analysis there. Roseneil and Green are intelligent, reasoning adults. So what is the explanation for this upside-down interpretation of what terms such as ‘democratic’, ‘ free’ and ‘authoritarianism’ mean?
The answer is that both of these figures are, presumably unconsciously, implicitly echoing the types of arguments that are now routinely made in global governance circles with respect to how freedom of expression fits into what democracy entails and requires. And examining the assumptions on which their comments rest reveals that those arguments now thoroughly permeate the thinking of the highly educated, internationally mobile, ultra-privileged ‘new elite’ class who still populate the upper echelons of our institutions. In short, that class now finds itself in the grip of a rejection of the concept of freedom of speech, or freedom of expression, and a replacement of it with something that better fosters a ‘democratic and free culture’ as they conceive of it – namely, a putative ‘right to participate’.
To see the explicit expression of this reasoning, it is useful to examine the most recent iteration of the United Nations Office of the High Commissioner for Human Rights’ ‘Management Plan’, a policy document that sets out the strategic priorities of the Office and, by implication, of the UN human rights system in general, for a three-year period (the current one running from 2024-2027).
The way the plan does this is exceedingly complex; perhaps taking a leaf out of Keir Starmer’s book on policy planning, the OHCHR postulates a “Theory of Change” which acts through realising 10 conditions; six “strategic directions”, a further six “pillars”; various “global targets”; eight “organisational effectiveness action plans”, and so on. But the overall message is fairly straightforwardly summarised and indeed is all laid out in the very title: realising human rights is essentially a matter of good management. Everything works best when well-intentioned experts are in charge. As Volker Türk, the High Commissioner, puts it in his introduction, the name of the game is for benevolent technocrats to “craft solutions that will benefit all our human family”.
What this means is that a caveman-like insistence on deploying the blunt object of ‘freedom of speech’ is definitely off the table. The thing about ‘freedom of speech’ is that it implies, broadly, an approach erring on the side of laissez-faire. But the trouble with, as it were, laissezing things faire is that it means there is nothing really for experts to direct, manage, craft or plan. Indeed, laissez-faire represents rather the opposite – a lot of disorganisation, messiness and imperfection. When people have freedom of speech they use that freedom to say things. And since there’s just no telling what those idiots will come out with, the results are guaranteed to be chaotic.
UN human rights experts would nowadays, then, rather be seen dead than have their names associated with a preference for freedom of speech (or its rather more accurate equivalent, freedom of expression). Instead, the done thing is to refer to the existence of a ‘right to participate’. The idea here is that merely securing freedom of expression would not really capture all that needs to be done in order to make sure that everybody is able to express themselves freely, because sometimes people express themselves in such a way as to attack or drown-out others’ voices. Rather, what needs to happen is state-directed curation of “civic space” so as to ensure that people are not “excluded from conversations relevant to them” and everyone can “meaningfully participate in public affairs”.
This, it turns out, means something like the opposite of laissez-faire. It means ensuring that everyone can “[access] information from independent sources” and “meet in participatory spaces that are enabling, inclusive and safe”. It means “support[ing] efforts to combat discrimination with respect to participation in public affairs” and “tackl[ing] practical issues including access for persons with disabilities and the marginalisation of older persons as a result of technological change”. It also means “encourag[ing] innovative forms of participation, such as popular assemblies and citizens’ conventions”. And it includes “focus[ing] on youth and child participation” so as to “empower children and youth to engage meaningfully in public affairs”.
The picture of the role of the state that emerges is something like that of an enthusiastic secondary school teacher who holds well-organised class debates in which everybody gets a chance to speak. All are included, all are safe, and everything that is expressed is meaningful. And it is necessary for the state to cultivate this environment by overseeing and orchestrating this process, the reasoning goes, because without it people would end up being excluded or otherwise prevented from making their voices heard.
There is a veneer of neutrality or objectivity about the presentation of all of this. But, of course, all of the pupils in a school class debate generally know what the teacher really thinks, and what they really mustn’t say. And, sure enough, the whole concept of the ‘right to participate’ is really, for the most part, a sham. What is actually going on is not the neutral umpiring of a general debate, or the structuring of a civic space in which everybody can ‘meaningfully’ express themselves, but the careful and programmatic inculcation of an awareness of what is or is not permissible by way of ‘participation’ in ‘civic space’ in 2025.
The OHCHR’s Management Plan does its best to disguise this, but ultimately it cannot help itself revealing its priorities. One of these, for example, is the insistence that realising the right to participate means extending special protection to the views of what the plan refers to as “human rights defenders”, which is UN code for human rights NGOs, “independent journalists, trade unionists and environmental activists”. These groups come first and foremost in the realisation of the right to participate, and it is when they are faced with censorship, intrusions of privacy, disinformation and hate speech that the state must take special measures. This hardly, it goes without saying, suggests a neutral arena in which all views from across the political spectrum are given equal weight.
And there are no prizes for guessing the particular priorities which the plan sets out in respect of what the “right to participate” must look like when implemented in practice. “Anti-gender narratives” must be “countered”, as must “discourses of fear and mistrust”; “new narratives” must be fostered so as to “support equal, diverse and inclusive societies”; civil society must be mobilised in such a way that “groups at risk of marginalisation” can help to “identify problems caused by climate change”; and so on. In other words, in the actual shakedown, the creation of an enabling, inclusive and safe civic space in which all are able to meaningfully express themselves turns out to mean the careful curation of a hymn sheet from which all are permitted to participate in singing. One is free to meaningfully express oneself provided one’s meaning is not in any way fearful, mistrusting or otherwise working orthogonally to what is “equal, diverse and inclusive”. And what is “equal, diverse and inclusive” naturally is determined by those who are genuinely equipped to understand what those concepts really mean – that is, human rights experts.
The “right to participate” is, in other words, a double-edged sword. It is contingent on how one wishes to participate and what one wishes to express. If one is willing to be “meaningful”, then one may participate to one’s heart’s content, especially if one is a member of a “group at risk of marginalisation”. But if one is being mistrustful or fearful or dishing out hate speech, misinformation or anti-gender narratives, then one may not participate at all – because all that one is doing is trampling over the right to participation of those who deserve it. To bring the matter back to Kathleen Stock and good old Professors Roseneil and Green, it was Stock who was at fault, in this framing, for perpetuating mistrust and fear – and the OfS has no business encouraging her and those like her to “participate” any further. Its priority, as an organ of the state, is to make sure that public spaces are “enabling, inclusive and safe” – based on a particular conception of the views which it is most necessary to protect. (It follows that the students who were hounding Stock out of the university were of course doing the Lord’s work in policing the boundaries of an enabling, inclusive and safe space.)
Why did things take this particular turn? How did the transmogrification of freedom of expression into the ‘right to participate’ take place? Regular readers will not be surprised to find me referring back to Antony de Jasay at this juncture. De Jasay, long ago, made perfectly clear why it is that things should have developed this way in Western societies. The point is not difficult to grasp. A laissez-faire approach to civil rights, or what de Jasay called “freedom-as-immunity”, was always unstable in an environment of political hedonism, meaning one not characterised by pre-political commitments to underlying minimalist norms. Under conditions of political hedonism, she state’s only role is to make life better – to maximise utility. But since any human population is characterised by a wide heterogeneity of preferences that cannot be aggregated into a single utility function, what this means in practice, inevitably, is selecting which preferences to prioritise at the expense of others.
And freedom of expression is no different. Human beings are not ants; they have differing perspectives and views. And those differing perspectives and views are often at odds – one cannot, for example, reconcile a gender-critical feminist perspective with that of a trans-rights activist when it comes to matters of sex and gender. A state which grants to itself the role of maximising utility therefore finds itself in an impossible position with respect to these two individuals: it must in the end, in the words of de Jasay, “choose whom it had better please” – who gets to express themselves and who doesn’t. And when this rationale is multiplied across all of the possible conflicting views and preferences in society with respect to all possible issues, the result is a state which must arrogate to itself the complete responsibility for picking and choosing which views and preferences are permitted into the public sphere and which are not, based on its own understanding of what is appropriate at any given moment.
That things should move in the direction of a ‘right to participate’ – with the civic space being increasingly carefully curated in the interests of some conception of how best to maximise utility – is therefore simply natural when there is no underlying rationale for the state’s existence beyond satisfying needs and wants. If it must satisfy needs and wants it must in practice select which to satisfy, and this implies managerialism, not freedom. The more genuine freedom that there is, the less certainty that will follow, and the weaker the state’s grasp on its role of utility-maximiser will become. This cannot be tolerated – and viewpoint neutrality, or laissez-faire, insofar as such concepts promote genuine freedom, must therefore be made to die.
That university leaders, the quintessential modern establishment insiders, should intuitively understand this is obvious. These are political animals who have risen to the pinnacle of higher education management by carefully reading the signs and listening to the mood music. The perspective of the ‘right to participate’ is thus one which they have gladly imbibed. That the OfS has been willing to try to tack to another direction is welcome. But in the long-term one suspects that erring on the side of freedom of expression can only last, and expand, when the idea that the state’s role is merely to maximise utility is abandoned, and a pre-political commitment to the ideal of free speech as an emanation of individual autonomy and agency is re-embraced. How, and whether, this happens, though, is anyone’s guess.
Dr David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
To join in with the discussion please make a donation to The Daily Sceptic.
Profanity and abuse will be removed and may lead to a permanent ban.
The only hope for early relief is for POTUS to be briefed. He might then withdraw funding from the UN and apply penalties to any national that allows these UN activists to operate in there.
TTK won’t stop it – he approves as does his parliamentary party and likely most MPs.
I hate to break it to you, but Trump and co don’t actually care about free speech as most of us would understand it, and less so in the UK.
Vance’s free speech admonishment of European leaders was basically about protecting US tech companies (and probably X in particular) that are under threat of gargantuan fines from the mad, dystopian digital “protection” legislation they’ve recently brought in in the UK and the EU.
Anything they do that helps protect our free speech here is at best a happy by-product of their actions to protect their tech companies.
Thanks for this.
“The OfS, according to Sussex’s Vice-Chancellor, Sasha Roseneil, is in the grip of a “sort of libertarian, free speech absolutism” that has led it to “persecute” an innocent university and “perpetuat[e] the culture wars“”
Lol. Translation 1 – we will attack you, but you must not defend yourself because that would be starting a war, and war is bad. Translation 2 – shut up! We’re in in charge now, so do as we say!
These prat academics and “intellectuals” and “educated people” sure do come up with more and more obviously pathetic concocted “reasons” why they should dictate what everyone else says and thinks.
I would certainly be tempted to vote for a political party that proposed to withdraw all state involvement in “university education” (and withdraw their tax breaks, too).
I have a close friend who is intelligent and like myself wants to be left alone as much as possible to get on with life, but generally defends the idea of mild, sensible policing of speech and for all intents and purposes could be qualified as a “normie” (thinks they did what they could during covid, Trump is stupid and dangerous, thinks climate change is probably a real thing and we should take some reasonable measures to mitigate it, all that crap)
So I’ve tried to understand why he thinks in this way, which to me is borderline insane.
I’ve come to the following conclusion, which I think applies to quite a few people out there.
I think the worldview of many if not most of people that are pretty intelligent and well educated is that much of the population is stupid, uneducated and quite dangerous. They fear the plebs, think they need to be kept under control and think that if allowed to get their dumb, uneducated way things will go to pot. So these educated normies see the state and its institutions as their friends and allies representing their interests and keeping the barbarian elements of the population in check. In short they fear the majority of the population much more than they fear the overreach of the state and institutions.
Once I got my head around that, everything makes much more sense.
It explains why they overlook so easily the state’s overreach, the abuse, the arbitrariness.They either chose not to see it or see it as a small price to pay for protection from what they really fear – the dumb, less educated, “populists” and their patently dangerous ideas like Brexit and Trump, their bigotry, etc.
It’s a profoundly arrogant worldview which they will never admit as bluntly as that but constantly reveal with much of what they say and do.
Like with most fears, persuading them away from it is hard.
Thanks for this. I think you’re on to something here. I’m sure there is a strong element of arrogance, but perhaps also just rather natural tribalism – but they would be unlikely to admit this, even to themselves, as it would be “beastly” and the idea of being beastly would horrify them.
Spot on. Most of my acquaintance is exactly the same. I believe the other, very compelling reason for this strange compliance is a simple dread of being ostracised by their social circle for having any ‘non compliant’ thoughts about the usual topics – climate, covid, Trump etc. Shows huge weakness in my opinion.
Well, what is being said there is upsetting me, and quite a bit. So applying her standard, she better stop.
Seriously, who in hell doesn’t see this madness for the pursuit of totalitarianism that it is? Does anyone really think this insanity is nothing but one group of people trying to lord it over everyone else, dictating what they can and cannot say?
I assume it is us the taxpayer who pays this fine? Not the top dudes at Sussex?
Some punidhment eh?
It’s really high time that the UN is taken behind a barn and shot to end its misery. Or rather, end our misery caused by the fact that an organisation which was supposed to serve as arbitration forum for foreign policy dispute between sovereign states has been peverted to the point that it instead seeks to control domestic policy issues in UN member states.
These people have absolutely no business or legitimation to do what they’re trying to do.
Free speech absolutism is a meaningless phrase. People are either free to speak their mind in public or they aren’t. There is no more such a thing as a temperate amount of freedom of speech as there’s a temperate amount of pregnancy. The statement in the German foundational law that people are free to express any opinion politicians don’t really disagree with is an overcomplicated lie. This just means people are not free to express their opinions.
Sussex and Worcester Uni VC’s, the Guardian, U.N. HIgh Commissioner, Sir Two-Tier – dinner party from purgatory…
…Thank you Dr McG, got it – Right to Participate for self-appointed civic moral guardians forever stuck in the glib pieties of the student debating society.
Time to close the universities. Since they are unable to produce young people with “the skills we need” and so we have to import engineers, scientists, doctors, etc from the planet’s shitholes, they serve no purpose and are an unnecessary expense.