Tag: freedom

  • Faculty better get active on AI and academic freedom.

    Faculty better get active on AI and academic freedom.

    Is AI an academic freedom issue?

    Of course.

    Education technology as a whole is an academic freedom issue, unfortunately, the encroachment of technological systems which shape (and in some cases even determine) pedagogy, research and governance have been left in the hands of others, with faculty required to capitulate to a system designed and controlled by others.

    AI is here, rather suddenly, pretty disruptively, and in a big way. Different institutions are adopting different stances and much of the adaptation is falling on faculty, in some cases with minimal guidance. While considering how these tools impact what’s happening at the level of course and pedagogy is a necessity, it also seems clear that faculty concerned about preserving their own rights should be considering some of the institutional/structural issues.

    Personally, I have more questions than answers at this time, but there’s a handful of recent readings that I want to recommend to others to help ground thinking that may lead to better questions and actionable answers.

    A report, Artificial Intelligence and the Academic Professions, just released by the AAUP, should be at the top of anyone’s list. Based on a national survey, the report examines a number of big-picture categories, all of which have a direct relationship to issues of academic freedom.

    1. Improving Professional Development Regarding AI and Technology Harms
    2. Implementing Shared Governance Policies and Professional Oversight
    3. Improving Working and Learning Conditions
    4. Demanding Transparency and the Ability to Opt Out
    5. Protecting Faculty Members and Other Academic Workers.

    The report both summarizes faculty concerns as expressed in the survey and offers recommendations for actions that will protect faculty rights and autonomy. Having read the report, in some cases the recommendations initially seem frustratingly vague but looked at in total, they are essentially a call for active faculty involvement in considering the implications of the intersection of this technology (and the companies developing it) with educational institutions. 

    In a way, the report highlights, in hindsight, how truly absent faculty have been as existing educational technology has been woven into the fabric of our institutions, and that it would be a disaster for that absence to be perpetuated when it comes to AI.

    After checking out the AAUP report, move on to Matt Seybold’s, How Venture Capitalists Built A For-Profit “Micro-University” Inside Our Public Flagships, published at his newsletter, The American Vandal. It’s a long and complicated story about the ways outside service providers conceived in venture capital/private equity have insinuated themselves into our universities in ways that undermine faculty roles and educational quality. 

    It would take a full column to do Seybold’s piece justice, but here are two quotes that I hope induce you to go consider his full argument.

    Here Seybold pulls the lid back on what it means for these third-party provider offerings to exist under a university brand “powered by” the third-party provider:

    The “powered by model” is a truly absurdist role reversal. A private, unaccredited company founded and run by sales and marketing professionals is responsible for the (pseudo)educational coursework, while the accredited university is employed only for its sales and marketing functions, getting paid by commission on the headcount of students who enroll from their branded portal. University partners are incentivized to flex their brand power and use their proprietary data, advertising budgets, and sales forces to maximize this commission, while Ziplines provides cookie-cutter landing pages and highly reproducible microdegrees, the content of which is largely created by gigworkers.

    And here, Seybold pinpoints the downstream effect of these kinds of “partnerships.”

    EdTech is not only always a Trojan horse for elite capture of public resources; it is also always a project in delegitimizing the project of public education itself.

    The applicability of Seybold’s analysis to the “AI partnerships” many institutions are busy signing should be clear.

    As another thought experiment exercise, I recommend making your way through a Hollis Robbins’s piece at her Anecdotal website, How to Deliver CSU’s Gen Ed with AI.

    Robbins, a former university dean, perhaps intends this more as a provocation than an actionable proposal but, as a proposal, it is a comprehensive vision for replacing human labor with AI instruction that relies on a series of interwoven tech applications where humans are “in the loop,” but which largely run autonomously.

    If realized, this sort of vision would obviate academic freedom on two fronts:

    1. The curriculum would be codified and assessed according to a rigid standard and then be delivered primarily through AI.
    2. Faculty would barely exist.

    I read it as a surveillance-driven dystopia from which I would either have to opt-out (if allowed), or more likely have to flee, but you can check the comments to the post itself and find some early enthusiasts. The complexity of the technological vision suggests that such a vision would be difficult to impossible to realize, but the underlying values of increased efficiency, decreased cost and increased standardization are consistent with the direction educational systems have been going for decades.

    Many of the factors that have eroded faculty rights and left institutions vulnerable to the attacks that have been coming were, indeed, foreseeable. Adjunctification is at the top of my list. 

    When it comes to technology and the university, we’ve seen this play before. If faculty aren’t prepared to assert their rights and exercise their power, you won’t see me writing the kinds of lamentations I’ve offered about tenure over the years because there won’t be enough faculty left to worry about such things.

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  • Blurred lines: Has OfS misunderstood freedom of speech?

    Blurred lines: Has OfS misunderstood freedom of speech?

    Academic year 2013-14 was an interesting one.

    I’d started work at UEA’s students’ union – and in the slipstream of national work on harassment and sexual misconduct and “lad culture”, I’d attracted considerable opprobrium from some working in the campus venue because I’d resolved that we wouldn’t be playing Pharrell Williams and Robin Thicke’s “Blurred Lines”.

    This apparent PC-gone-mad crackdown on our DJs’ “freedom of expression” (described as “whining” by Spiked!) was difficult to stomach in an SU that had historically often opposed NUS’ “No Platform” policies – but having seen with my own eyes what happened in the LCR when it came on, I thought I was justified regardless of whether there had been a referendum on the issue.

    I’ve often mused on whether these days, someone would be able to use the Higher Education (Freedom of Speech) Act to block that sort of ban – or at least get a complaint into the Office for Students (OfS) over it.

    Just before Easter that year I took a few days off to get away to Denmark – where I watched Austria win the Eurovision Song Contest in a former shipyard in Copenhagen. Little did I know that the fallout from that win would end up being central to a brewing controversy over freedom of speech regulation in England some 11 years later.

    The winner that year was Conchita Wurst (the drag persona of Thomas Neuwirth) with the song “Rise Like a Phoenix” – a result that was controversial in some Eastern European countries given her “bearded” gender-nonconforming appearance.

    A few days after the contest, two members of the Armenian Jury gave a press conference, explaining that they had given Conchita the fewest points because “of their internal revulsion” at her appearance. They specifically stated:

    …like the mental patient causes repulsion, so does this phenomena.

    Participants at the press conference called out the judges on their discriminatory and offensive remarks – but the following day, Armenian newspaper Iravunk piled on by publishing an article titled:

    They serve the interests of international homosexual lobbying: The blacklist of enemies of state and nation.

    The article included a list of 60 activists and supporters of LGBTI rights, encouraging readers, employers, and public bodies to discriminate against them.

    Neighbors say we’re trouble

    Having first attempted to resolve the issue informally – only to have the paper double down – a group of them tried the Armenian courts, which dismissed the activists’ claims, ruling that the articles did not aim to insult them but simply contained:

    ….an element of exaggeration and provocation, in the exercise of the journalist’s right to free speech.

    And so they filed their case with the European Court of Human Rights – which handed down its judgement in January of this year.

    Armenia’s courts had viewed the newspaper’s tirade as lawful – robust, if unpleasant, political commentary – and so protected by Article 10(1):

    A10(1): Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

    But Strasbourg said that when deciding whether expression is “within the law”, you can’t just stop at a domestic statute book’s explicit offences.

    You also have to factor in the built-in brakes of Article 10(2) – which insist that speech rights are limited by respect for the rights and freedoms of others and by what is necessary in a democratic society:

    A10(2): The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

    In other words, once you’ve worked out if there’s an explicit law that restricts some speech, 10(2) then causes you to think about whether speech tramples on someone’s Article 8 dignity, or discriminates under Article 14, or engages any other of the rights in the Convention.

    If otherwise legal speech stirs up hostility or encourages discrimination, depending on the context, it slides towards a zone where Article 10 protection shrinks – or even disappears under Article 17’s “abuse of rights” clause.

    The Court ruled in favour of the activists, finding that Armenia had violated their rights. It held that the newspaper articles went beyond legitimate political discourse and constituted hate speech that could incite violence and discrimination.

    Acknowledging the importance of press freedom, Strasbourg emphasised that the articles’ call for readers, employers, and public bodies to discriminate against named individuals crossed the line from protected speech into harm. And the Armenian courts’ failure to provide any protection against this targeting represented a breach of the state’s positive obligations under the Convention.

    The competing rights – in the Armenia case of speech on the one hand, and privacy and equality on the other – do still have to be seen through the lens of necessity and proportionality. But it’s the two stage process taken together that sets out what is “within the law”.

    Walking over glass

    This all matters because when the Higher Education (Freedom of Speech) Bill was being debated in the Lords, this question of the meaning of “freedom of speech within the law” came up. Lord Hope of Craighead wanted to know what it meant:

    I should explain that the way the Bill expresses the idea of freedom of speech is to encompass it as freedom of speech within the law. It seemed to me that the words “within the law” beg the question of what exactly that expression means.

    He initially proposed an amendment defining freedom of speech directly by reference to Article 10(1), but Lord Moylan worried that omitting Article 10(2) would create confusion.

    The government eventually proposed a compromise, defining freedom of speech as referring to Article 10(1) “as it has effect for the purposes of the Human Rights Act 1998.”

    Lord Hope ultimately accepted that formulation, noting that the phrase “as it has effect” implicitly imports the whole balancing test from the Human Rights Act – including Article 10(2)’s limitations.

    But it’s not immediately clear that the Office for Students (OfS) noticed.

    Go about your business

    In its consultation on Regulatory advice 24: Guidance related to freedom of speech, restrictions on freedom of speech are treated as binary (lawful/unlawful) rather than explaining that Article 10 requires a nuanced balancing exercise.

    It listed specific legal restrictions (harassment, discrimination, anti-terrorism laws) but doesn’t frame these within the broader Article 10(2) framework that Parliament apparently intended to incorporate.

    The Armenia case shows why this matters – speech that doesn’t violate domestic criminal law can still lose Article 10 protection if it unnecessarily tramples on others’ rights.

    In their response to the consultation, Naomi Waltham-Smith, Julius Grower, and James Murray argued that advice could mislead providers and SUs because insufficient consideration was given – in either the guidance or the worked examples – to the balancing acts that would need to be undertaken in difficult cases.

    They also specifically criticised OfS for failing to explain how Article 10(2) operates, noting that:

    …while Article 10(2) is quoted in the guidance, its operation is neither explained nor applied in either the guidance or the examples.

    That omission, they warned, risked universities thinking they only needed to check whether speech violated explicit legal provisions, rather than conducting the fuller proportionality assessment that both the European Convention and Parliament’s incorporation of it into the Higher Education (Freedom of Speech) Act required.

    So they proposed a four step test:

    Step 1: Is the speech completely beyond the pale? (Article 17 ECHR)

    Does the speech abuse human rights to destroy human rights themselves – like promoting terrorism or calling for genocide? Article 17 of the ECHR says such extreme speech gets no protection at all. If yes, the university’s duty under the HEFoSA doesn’t apply. If no, move to step 2.

    Step 2: Does the speech break UK law?

    Is what they’re saying illegal under any UK statute or common law (like hate speech, harassment, inciting violence, or defamation)? If yes, the university’s duty doesn’t apply. If no, move to step 3.

    Step 3: Can the university restrict this speech? (Article 10(2) ECHR)

    Article 10(2) of the ECHR allows some limits on free speech for things like national security, public safety, or protecting others’ reputation. BUT – in academic contexts this is extremely hard to justify because academic freedom is so important. If the university can show a restriction is necessary under Article 10(2), their duty doesn’t apply or is satisfied. If not, move to step 4.

    In this step, there’s a proportionality test:

    1. Is the objective important enough? – The reason for restricting speech must be sufficiently weighty to justify limiting a fundamental right.
    2. Is the restriction rationally connected? – The measure must actually help achieve the objective, not just be vaguely related to it.
    3. Is this the least restrictive option? – Could you achieve the same goal with less impact on free speech? If yes, you must use the less intrusive approach.
    4. Does the benefit outweigh the harm? – Even if the first three tests are met, you must still balance the severity of restricting speech against how much the restriction actually helps achieve your objective. The restriction fails if the damage to free expression outweighs the benefit gained.

    Step 4: Has the university taken “reasonably practicable steps”?

    Has the university done what’s realistically possible to enable the speech (like providing security, booking suitable venues, managing protests)? If yes, they’ve discharged their duty. If no, they’ve breached it.

    The London Universities Council for Academic Freedom (LUCAF) disagreed with that approach. They argued that the European Convention on Human Rights sets the minimum level of free speech protection – but that UK law can (and does) give you more protection than the minimum.

    They argued that Article 10(2) lists when speech can be limited (like for public safety), but it doesn’t require limits. And given the legislation says universities must protect speech unless it’s actually illegal or violates someone’s human rights, in their view Article 10(2) doesn’t add any new reasons to restrict speech beyond what’s already in UK law.

    For them, the guidance extensively discussed protecting people from discrimination and harassment, didn’t force universities to allow “vicious, sustained and personal attacks”, and that universities could still have rules about behaviour – as long as they applied equally regardless of viewpoint.

    For them, all the draft did was ensure that universities can’t use vague concerns about “harm” to shut down legitimate debate and academic discussion.

    Act as if you’re free

    In the final version of the guidance, OfS adopts a three-stage process that then runs underneath its examples:

    Step 1 asks simply whether speech is “within the law” – defined as speech not prohibited by primary legislation, legal precedent, or secondary legislation. Crucially, university regulations and contracts don’t count as “law” here. If not, don’t allow it. If it is, move to Step 2.

    Step 2 considers whether there are “reasonably practicable steps” to enable the speech. Universities should consider factors like legal requirements (including any formal duties), maintaining essential functions, and physical safety – but explicitly cannot consider the viewpoint expressed, whether it’s controversial, or reputational impact. If steps can be taken, take them. If not, move to Step 3.

    Step 3 – only reached if no reasonably practicable steps exist – then asks whether any restrictions are “prescribed by law” and proportionate under the European Convention. This involves checking if there’s a specific legal rule authorising the restriction, and runs through that same four-part proportionality test weighing the importance of the objective against the severity of limiting the right.

    In other words, OfS has gone with AFAF’s interpretation – which is a key architectural difference.

    OfS’ process treats Article 10(2) considerations as a final backstop – something you only reach after exhausting practical options. But the Armenia case suggests these considerations should infuse the entire analysis from the start.

    When Strasbourg said speech must be “within the law,” it meant not just checking against explicit prohibitions, but understanding that Article 10 protection can shrink or disappear when speech unnecessarily tramples on others’ dignity or encourages discrimination.

    That matters because universities following the OfS guidance might think they’re obliged to host speakers who, while not technically breaking actual laws, are using their platform to create hit lists of activists or stir up discrimination – “permissive environments”.

    The guidance’s linear process could lead institutions to conclude they must exhaust all “reasonably practicable steps” before even considering whether the speech itself has already lost its Article 10 protection by targeting individuals for harassment.

    That’s not just a theoretical concern – it’s precisely what happened in Armenia, where domestic courts protected speech that Strasbourg found had crossed the line from legitimate discourse into unprotected speech.

    And for Waltham-Smith, Grower, and Murray, this leaves universities in an impossible position.

    No one could have witnessed

    They argue that the final OfS guidance seems to be confused about Article 17 (the “abuse of rights” clause). While it mentions Holocaust denial as an example, it then suggests universities still have duties to take “reasonably practicable steps” even for Article 17 speech.

    For Waltham-Smith, Grower, and Murray, this makes no sense – Parliament explicitly defined “freedom of speech” by reference to the Convention standard, which includes Article 17. You can’t cherry-pick which bits of the Convention apply.

    They note that OfS seems to have ignored the idea raised during the Lords debate that incorporating Article 10(2) was “axiomatically required” by the statutory definition. They suggest OfS has misunderstood that Article 10(2) isn’t just about defining what’s “within the law” – it’s baked into the very definition of “freedom of speech” that Parliament adopted.

    Their key criticism is that the guidance requires universities to exhaust all “reasonably practicable steps” before even considering proportionality and competing rights like Article 8 (privacy/dignity) or property rights. But for them, that gets the analysis backwards – you need to consider whether speech tramples on others’ Article 8 rights from the start, not as an afterthought.

    Crucially, in Minasyan v Armenia, Strasbourg struck down Armenia’s approach precisely because it over-privileged Article 10 without properly balancing Article 8 rights. OfS’ guidance arguably puts universities in exactly the same position – following an analytical framework that’s already been ruled non-Convention compliant.

    Put another way, universities following OfS guidance could find themselves breaching the Human Rights Act 1998 by using an approach that Strasbourg has explicitly rejected – OfS’ linear, checkbox approach misses the fundamental point that human rights require holistic balancing from the outset, not sequential consideration.

    And that takes us back where the see-saw all started – holocaust denial.

    Cause you wouldn’t know me today

    Back in 2021 on the day that the then universities minister Michelle Donelan appeared on PM, the exchange with presenter Evan Davies went as follows:

    Michelle: What this Bill is designed to do is ensure that we protect and we promote free speech that is lawful so any free speech that is lawful…

    Evan: It is lawful, Holocaust denial is in this country lawful isn’t it? So Holocaust denial is okay, you would defend a holocaust denier being invited to campus because that is part of the free speech argument?

    Michelle: Obviously it would depend on exactly what they were saying, whether they were straying into racism, whether they were straying into hate crimes, but a lot of these things that we would be standing up for would be hugely offensive and would be hugely hurtful…

    Less than 24 hours later, both her boss Gavin Williamson and PM Boris Johnson had flat out contradicted her – Donelan herself issued a panicky 10.15pm tweet thread making clear her view that antisemitism is abhorrent “and will not be tolerated at our universities”, and met with Charlotte Nicholls MP to:

    …confirm that she had misspoken and it was not the intention of the government that the new bill be used to defend Holocaust denial.

    Presumably to assuage critics, the final guidance simply declares that OfS “will not protect Holocaust denial” – full stop. But it doesn’t really say why – all the consultation response does is try to justify this by saying it’s because Holocaust denial would:

    …likely amount to incitement to racial hatred and harassment.

    That suggests a fundamental confusion about why Holocaust denial isn’t protected. In European human rights jurisprudence, Holocaust denial is the paradigmatic example of Article 17 speech – speech that abuses rights to destroy rights and therefore gets no protection whatsoever. You don’t need to prove it amounts to incitement or harassment – it’s simply outside the scope of protected speech from the start.

    By trying to shoehorn Holocaust denial into UK criminal law categories (incitement) or civil wrongs (harassment), OfS decides that it’s not properly engaging with the Convention framework that Parliament explicitly incorporated. It’s treating it as just another form of potentially illegal speech – rather than recognising it as categorically unprotected under Article 17.

    And that opens the door to all sorts of chaos.

    • We might imagine a speaker or campus group publishing lists of “woke professors undermining British values” or “Marxist students infiltrating the university” with names, photos, and course details. While not explicitly illegal, that would mirror the Armenian newspaper’s tactics and could encourage targeting and harassment.
    • A speaker systematically and deliberately misgenders trans students or staff, encouraging audiences to do the same. While potentially not reaching the threshold for harassment (which requires a “course of conduct”), it could violate dignity rights under Article 8.
    • A rugby club hosting a speaker to give a talk on “team bonding traditions” that promotes hazing rituals targeting women – like “sharking”, “seal clubbing”, or scoring systems for sexual conquests. While not directly instructing assault, it creates a culture where such behaviour is normalised and encouraged.
    • Student societies booking speakers who promote “player culture” – teaching tactics like getting women drunk to “lower resistance,” how to “neg” women to undermine confidence, or running “bootcamps” on manipulating “7s into thinking they’re 4s.” Carefully avoiding anything that could be construed as inciting assault while creating predatory environments.
    • SU comedy events featuring performers whose acts revolve around rape jokes, domestic violence “humor,” and audience participation segments where female students are singled out for sexual humiliation. Defended as “edgy comedy” but designed to normalize violence against women.
    • Student societies hosting speakers who argue that rape statistics are “feminist propaganda,” that most accusations are false, and encouraging male students to “protect themselves” by recording all sexual encounters or avoiding being alone with women. Creating an atmosphere where victims are pre-emptively discredited.
    • Academic presentations arguing certain racial groups are genetically less intelligent, complete with “scientific” graphs and data. While framed as academic discourse and not explicitly inciting violence, such content could encourage discrimination and lose Article 10 protection.
    • A speaker singling out specific LGBTQ+ students by name as “abominations” who will “burn in hell,” while stopping just short of calling for action against them. The speech might not meet the threshold for incitement but could constitute degrading treatment.
    • Presentations warning that specific ethnic groups are “replacing” the native population, using university demographic data to identify departments or residences with high numbers of international students. Technically discussing statistics but designed to stir hostility.
    • A staff member argues that disabled students are a “drain on university resources” and promoting selective admission policies based on genetic screening. Not explicitly calling for discrimination but creating an environment where it’s encouraged.
    • A society running workshops teaching young men that women are “inherently inferior,” should be “controlled,” and are “property” once in relationships might use pseudo-evolutionary psychology to argue women “want to be dominated” and teach tactics for emotional manipulation. While carefully avoiding explicit incitement to violence, the content systematically degrades women’s dignity.
    • A student club encouraging male students to publicly rate and shame female students based on their sexual history, creating websites or social media campaigns to track and expose women’s private lives. Not quite reaching the legal threshold for harassment but creating a fairly hostile environment.
    • Alumni speakers at formal dinners celebrating historical drinking society chants about “consensual non-consent” or sharing “conquest walls” where women’s photos were displayed as trophies. Framed as “preserving tradition” but perpetuating degrading treatment.
    • Presentations arguing women in higher education are “destroying society,” that female students should be “preparing for motherhood not careers,” and encouraging male students to “put women in their place.” Framed as cultural commentary, but intimidating women from participating in university life.

    Under the OfS framework, universities might think they need to find “reasonably practicable steps” to allow all of that – perhaps with security, protests managed at a distance, etc. But following the Armenia logic, all of the above could already lack Article 10 protection because it:

    • Systematically undermines other HRA rights
    • Encourages discrimination based on a protected characteristic
    • Creates an environment hostile to equal participation in education
    • Goes beyond legitimate discourse into targeted degradation

    The real danger is that content is specifically designed to stay just within legal boundaries while maximising harm – exactly the kind of speech that requires the full Article 10 balancing act from the start, not as an afterthought.

    Which is why, I suspect, that while OfS consistently says that it won’t protect holocaust denial, it can never quite bring itself to say that it would be OK to ban holocaust deniers.  

    Universities now face an impossible choice – follow OfS guidance and risk breaching the Human Rights Act, or properly apply Article 10 and risk regulatory action.

    What started as an attempt to protect academic freedom has morphed into a framework that could protect the worst forms of “permissive environments” to promote or condone stuff they’ve been making progress on tackling for years.

    The solution isn’t complex – OfS simply needs to align its guidance with the Convention framework that Parliament explicitly incorporated. Until then, every controversial speaker booking, every protest, every difficult decision will be made in the shadow of guidance that looks like it misunderstands what “freedom of speech within the law” actually means.

    And it’s students – particularly those with protected characteristics who that activity so often targets – who will pay the price.

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  • Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Will guidance on freedom of speech help the staff who fear physical attack for expressing their views?

    Just 44 days before duties on it go live, but some 389 days since it closed a consultation on it, the Office for Students (OfS) has finally published Regulatory advice 24 – its guidance to universities and colleges in England on freedom of speech that flows from the Higher Education (Freedom of Speech) Act (HEFoSA).

    The timings matter partly because it’s mid-June, there won’t be many (if any) big committee meetings left (let alone processes designed to engage with people on policy development ahead of approval), and it was OfS itself that fined the University of Sussex partly over the proper approval of some of its policies.

    And it’s not as if there are only minor drafting changes. An 11,773 word draft has become a 23,526 word final, and the list of 30 illustrative examples has grown to 52 – despite the fact that this new version omits all the duties on students unions (which the government announced last year it intends to repeal), and is now also silent on the free speech complaints scheme.

    All the detailed and prescriptive expectations in the original draft over how that should be promoted have gone – largely because we’re all waiting for Parliament to debate (sensible) changes that will cause students to have to use the Office of the Independent Adjudicator (OIA), rather than OfS, to resolve any complaints in this area.

    Alongside, there’s surely a record-breaking 788 paragraph analysis of responses and decisions off the back of the eleven question consultation, some alarming-sounding polling that will likely be making the news, and some short guides for students and staff.

    A lot of the new version of the guidance adds more detail into the examples – many are now more realistic, plenty are better at signalling the differences between “good ideas” and minimum expectations, and a whole host of them are now more accurately qualified with reference to key legal principles or tests, many of which have been emerging in case law since OfS started its consultation.

    That said, some are still so preposterous as to be useless. If there really is a college somewhere that requires students to seek written permission a month in advance to hand out leaflets or post flyers, where those flyers must be posted on a single designated noticeboard which is both small and on a campus where flyers may not be posted anywhere else, I’ll eat my hat – or maybe my pudding at the formal dinner at whichever Oxbridge college authors were reminiscing about when Example 38 was drafted.

    As there are 52 of them, this initial article doesn’t dive into all of the vignettes comprehensively – although doubtless a number of them (not least because of the judicious use of qualifiers like “depending on the facts of the case”) will continue to cause readers to cry “yeah but what about…” – which is presumably why OfS initially attempted to let lessons unfurl from the casework rather than publish guidance. And we may well end up looking at some of them in more detail in the coming days and weeks.

    What I have tried to do here is look at the major ways in which the guidance has developed, how it’s handling some of the bigger questions that both universities and their SUs were raising in responses during the process, and what this all tells us about OfS’ intended approach to regulation in this area as of August.

    As a reminder, we’re talking here about the duty to “secure” freedom of speech on campus (A1 in HEFoSA), and the expectations that OfS has around the requirements for a souped up Code of Practice (A2) for each provider. There’s no guidance (yet) over the “promote” duty (A3), and to the extent to which the previous version strayed into those areas, they’ve largely been removed.

    The sandbags are coming

    If we were to identify one theme that has dominated discussion and debate over the Free Speech Bill ever since then universities minister Michelle Donelan stumbled, live on Radio 4, into an apparent contradiction, it would be where free speech (to be protected and promoted) crosses the line into harassment – which of course, under a separate heavy new duty as of August 1st, is something to be actively prevented and prosecuted by universities. Middle grounds are no longer available.

    The good news is that the section on reconciling free speech duties with equality law, anti-harassment provisions, and other legal requirements is better than anything else OfS has published to date on the interactions and fine lines. So detailed, for example, are many of the sections that deal with harassment on campus that at times, it’s a lot more helpful than the material in the actual guidance on registration condition E5 (Harassment and Sexual Misconduct).

    People often, for example, find others’ conduct to be unpleasant or disagreeable – Para 47 reminds us that the concept of harassment in the Protection from Harassment Act 1997 is linked to a course of conduct which amounts to it, that a course of conduct has comprise two or more occasions, that the conduct must be “oppressive and unacceptable” rather than just “unattractive or unreasonable”, and must be of sufficient seriousness to also amount to a criminal offence.

    Similarly, the judgement of harassment isn’t purely subjective – it applies an objective test based on what a reasonable person would think, which helps provide a consistent standard rather than relying solely on individual perceptions.

    Hence in Example 1, a student publishes repeated comments on social media attacking another student based on lawful views, including “tagging” them in posts and encouraging others to “pile on”. The student’s speech is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment – and so carrying out an investigation into the student based on a policy that bans harassment would not breach the “secure” duty.

    Much of that flows from a newly reworked version of what counts as free speech within the law that translates some of the case law and principles set by the ECHR and the UK High Court in cases like Higgs v Farmor’s School. As such, while there’s still lines in there like “The Act protects free speech within the law – it does not protect unlawful speech”, there’s now much more helpful material on the different ways in which free speech might be curtailed or interfered with given other duties.

    To get there it outlines a three step test (with some wild flowchart graphics):

    • Step 1: Is the speech “within the law”? If yes, go to step 2. If no, the duty to “secure” speech does not apply.
    • Step 2: Are there any “reasonably practicable steps” to secure the speech? If yes, take those steps. Do not restrict the speech. If no, go to step 3.
    • Step 3: Are any restrictions “prescribed by law” and proportionate under the European Convention on Human Rights?

    There’s no doubt that it’s a more nuanced and balanced reflection of the legal position than we saw in the draft – albeit that it switches between “what to do in practice” and “what to say to students and staff in theory” in ways that are sometimes unhelpful.

    The problem is that the closer it gets to necessary complexity, the further away it gets from something that’s easy to understand by the very staff and students whose day to day conduct and confidence (what we might call the “culture” on campus) is supposed to be being influenced by the new duties.

    More importantly, as the examples unfurl, it’s both possible to spot numerous ways in which “it’s a balance” turns into Kafka’s cake and eat it, and to see how the “reasonably practicable steps” duty turns into something genuinely hard to understand in practice.

    Someone should do something

    One thing that’s not gone is a tendency in the examples to signal to the outside world that the new rules will tackle the things they’ve read about in the Times and the Telegraph – until you realise that they won’t.

    That Example 1 discussed above (highlighted in the accompanying press release) is a classic of the genre. On the surface it looks like OfS is tackling “mobbing”. But in reality, the whole point about pile-ons is that they’re almost never about one big evil ringleader engaging in conduct that is so “extreme, oppressive and distressing” that their course of conduct may amount to harassment.

    It’s more often than not a hundred micro-oppressions having the cumulative effect of making the target feel terrible. Even if you argue that aspects of social media culture are within the influence (if not control) of a provider, in other parts of the guidance OfS seems to be saying that because each micro-act isn’t harassment, you shouldn’t be trying to meddle in the culture of the campus.

    That problem becomes amplified in the section on microaggressions. In 2019, the Equality and Human Rights Commission (EHRC) found microaggressive acts to be a key component of a culture of racism on campus – and both argued that they could have an impact on equality of opportunity and good relations between different groups, and that universities must not ignore microaggressions that do not meet the definition of harassment in the Equality Act 2010 because of the cumulative impacts of repetition.

    But as soon as universities started to tackle microaggressions by, for example, encouraging their reporting, various anti-EDI culture warriors started to raise concerns. Discussing a scheme launched by Sheffield SU to have their halls reps understand the concept, Spiked’s Joanna Williams argued:

    They will need an odd combination of extreme sensitivity to offence – alongside a high degree of insensitivity to interrupting conversations – to point out exactly where the speakers went wrong. Presumably, candidates will also have to sit some kind of test to prove their own thought purity on all matters concerned with race and ethnicity.

    The Command Paper that led to HEFoSA was also worried:

    Schemes have been established in which students are paid to report others for perceived offences.

    And as Report+Support tools started to open up avenues for students to raise issues such that universities could spot patterns, academics – among them a fairly obscure Cambridge philosopher called Arif Ahmed – started to complain:

    The encouragement to report ‘inappropriate’ or ‘offensive’ behaviour amounts to a snitches’s charter. Any risk-averse white person will simply not engage with anyone from an ethnic minority, in case an innocent or well-meaning remark is overheard, misunderstood and reported. Whatever Downing College may think, being offensive is not an offence.

    Several years on, Arif Ahmed is OfS’ Director for Freedom of Speech and Academic Freedom, asserting that his appointment and approach isn’t “political”, and launching actual regulation (Example 39) that says this:

    University A promotes an anonymous reporting process. Students are encouraged to use a portal to submit anonymous reports to senior staff of “microaggressions”, which is not further defined. The portal includes free text boxes in which reporters may name or otherwise identify the individuals being accused. University A says that it may take action against named (or identifiable) individuals on the basis of any anonymous report that it receives.

    …Depending on the circumstances, the existence of the reporting mechanism and portal may discourage open and lawful discussion of controversial topics, including political topics and matters of public interest.

    …Reasonably practicable steps that A could now take may include remove the free text boxes from the anonymous reporting portal to be replaced with radio buttons that do not permit submission of any identifying data.

    There is a legitimate, if contested, political view that structural racism is fictional, harmful or both – and that what flows from it is division via concepts like microaggressions. There’s another view that to tackle racism you need to interrogate and tackle not just skinheads hurling abuse and painting graffiti, but the insidious yet often unintended impact of stuff like this (EHRC again):

    A recurring theme in our evidence was students and staff being dismissed as “oversensitive” and their experiences of microaggressions viewed as isolated incidents rather than a cumulative and alienating pattern of repeated slights and insults.

    Many staff and students reported that racial harassment doesn’t only happen overtly. All too often, offensive comments were justified by perpetrators as “jokes” or “banter”. The damaging effect of repeated microaggressions is often made worse by a lack of empathy and understanding when individuals decide to speak up about their treatment.

    In that “debate”, OfS has picked the side that we might have expected Arif Ahmed to pick. Whether he’s legally justified in doing so is one question – but let’s not pretend that the agenda is somehow apolitical.

    And for my next trick

    All of this is possible because of a central conceit in the guidance that relates back to a long-running theme in the rhetoric surrounding culture on campus – what we might call a “maximalist” approach to describing free speech, and a “minimalist “ (specific, legal thresholds) approach to harm and harassment.

    Anything goes unless it specifically breaks this specific law, and if you pretend otherwise you might end up “chilling” free speech.

    You might. But while insisting on an objective test to determine whether harassment has happened is a central feature, no such test of objectivity is then applied to whether a chilling effect has occurred – it becomes, in effect, about “potential” and feelings. Hence in its Sussex investigation, OfS said:

    …a chilling effect arose as a result of the Trans and Non-Binary Equality Policy Statement and the resulting breach of condition E1. By “chilling effect”, the OfS means the potential for staff and students to self-censor and not speak about or express certain lawful views. Staff and students may have self-censored as a result of the policy because they were concerned about being in breach of the policy and potentially facing disciplinary action for expressing lawful views.

    So having established that “harassment” has to amount to something objectively criminal, while “chilling” is in the eye of the Director, OfS is able to get away with railing against another newspaper favourite – by all but outlawing requiring academic staff to issue trigger warnings. Example 50:

    Depending on the facts, issuing a “content note” (informing attendees about sensitive material) in advance of this event may not be a reasonably practicable step for A to take. A standing requirement to use content notes may encourage more intrusive investigation of the content of seminars, readings or speaker events. An expectation of content notes may also discourage academics from exposing students to new controversial material (so as not to risk wrongly including no, or the wrong type of, content note).

    You could of course just as easily argue that failing to issue “content notes” could have a chilling effect on some students’ active participation. Alternatively, you could double down and chuck in a minimalist little qualifier for cover:

    However, there may be occasions when the use of specific content notes may be helpful to enable students to access material, if there is evidence that they are in fact helpful.

    The point isn’t to debate whether they work or not – the point is that OfS suddenly gets to pick and choose what it thinks could chill, while demanding that rules reflect specificity and extremity over individual conduct for harassment. It’s culture war politics shoehorned into regulation, with the law lingering around in the background.

    Is the process the punishment?

    You might remember a major news story in 2021 when a student at Abertay was investigated after other students complained that she made “hateful, discriminatory, sexist, racist and transphobic” remarks during an online seminar on gender politics.

    Following an investigation, it was determined that Lisa Keogh had a case to answer in relation to “making inappropriate comments” which “could be construed as discriminatory” – but after a panel reviewed recordings made available from the seminar, it found no evidence of discrimination:

    As a result, the board found there was insufficient evidence to support the allegations made against you on your behaviour in class and, therefore, decided to not uphold the charge of misconduct.

    Keogh’s argument was that she should never have been subject to formal processes in the first place – and so sued.

    Her case was basically that the university acted in breach of the Equality Act 2010 by pursuing her for “expressing her gender critical beliefs” and caused “stress at the most crucial part of my university career” – but Dundee Sheriff Court dismissed her case, with Sheriff Gregor Murray saying that university was entitled to take steps to investigate complaints:

    The number, nature and timing of the allegations, and the involvement of at least three final year students who were about to sit examinations, all placed the university in exactly the type of “tricky territory” that entitled it to investigate immediately.

    The defender was entitled to take steps to investigate complaints. It could not be guilty of discrimination simply because it did so. Following investigation in this case, the complaint against the pursuer was not upheld.

    Cases like that then get mangled into examples like Example 40 in the guidance. In the vignette, a professor expresses views that upset some students – they bring a complaint, there is a lengthy investigation process, and at the end of the process the university finds that there is no case to answer.

    This should have been clear to investigators at the outset, but the university was concerned that closing the investigation quickly would further offend the students who complained. The prospect of a lengthy investigation with an uncertain outcome may deter students and staff from putting forward unpopular views on controversial topics.

    Again, you can just as easily argue that rapidly dismissing students’ genuinely held concerns would have a chilling effect on their confidence to complain, and that students making formal complaints of this sort is so rare that a university would be wise to carefully investigate whether there’s an underlying fire accompanying the smoke.

    But as above, OfS seems to be saying “if students weren’t describing specific behaviours that would meet the harassment test, don’t even investigate” – applying a specific and objective test to harassment while being speculative and partial over its chilling test.

    A useful tool, but not that useful

    The original draft was fairly silent on antisemitism – an obvious issue given the high-profile nature of the coverage and political commentary on it, not least in the context of protests surrounding the war in Gaza.

    Notwithstanding the specific stuff on “time, place and manner” (see below and here) and what OfS might be counting as an “essential function” of a university (again, see below), what I would say is that if there’s a debate about whether action A, protest B or leaflet C amounts to antisemitism, it’s pretty obvious that those advocating the adoption of the IHRA definition are seeking to have it used when making a judgement.

    Some will argue (like Arif Ahmed once did) that universities should not adopt the definition:

    This “definition” is nothing of the kind; adopting it obstructs perfectly legitimate defence of Palestinian rights. As such it chills free speech on a matter of the first importance. I hope the Secretary of State reconsiders the need for it; but these new free speech duties ought to rule it out in any case.

    We’ve covered his mysterious conversion before – and wondered how that might manifest in any final guidance. It doesn’t, at all – but what we do get in the consultation commentary is this astonishing paragraph:

    We do not comment in this guidance on the IHRA definition of antisemitism or on any other proposed non-legally binding definition that a provider or constituent institution may wish to adopt. Nonetheless, we have adopted the IHRA definition because we believe that it is a useful tool for understanding how antisemitism manifests itself in the 21st century. The IHRA definition does not affect the legal definition of racial discrimination, so does not change our approach to implementing our regulatory duties, including our regulatory expectations of registered providers. A provider that adopts any definition (of anything) must do so in a way that has particular regard to, and places significant weight on, the importance of freedom of speech within the law, academic freedom and tolerance for controversial views in an educational context or environment.

    Some will argue that adoption – either by OfS or providers – has precisely the kind of chilling effects that are railed against at length throughout the guidance. Others will argue that adoption as a kind of interesting window dressing without using it to make judgements about things is pointless, raises expectations that can’t later be met, and allows antisemitism to go unchecked.

    I’d argue that this is another classic case of Kafka’s cake and eat it – which dumps a deep set of contradictions on universities and requires attention and leadership from regulators and politicians. We are still not there.

    Practicably reasonable

    As well as that central thread, there are various other issues in the guidance worthy of initial note.

    A major concern from mission groups was the way in which the new duty might play out over transnational branch campuses – especially those with rather more oppressive legal regimes over expression than here.

    We might have expected OfS to use some sort of “what’s practicable relates to the law in the country you’re delivering in” qualifier, but it has somehow managed to square the circle by simply stating, with no further qualification (P13) that:

    HERA does not require providers or constituent institutions to take steps to secure freedom of speech in respect of their activities outside England.

    It’s an… interesting reading, which is maybe related to the usual territorial extent qualifiers in legislation – the consultation commentary is similarly (and uncharacteristically) silent – but what it does appear to do is contradict the usual prescription that it’s about where the main base of the provider is, not where it’s provision is, that sets the duties.

    Even if some legal workaround has been found, it does start to call into question how or why OfS can regulate the quality of your provision in Dubai while not worrying about freedom of speech.

    Another section with a mysteriously short sentence is one on the original Donelan conundrum:

    The OfS will not protect Holocaust denial (by visiting speakers or anyone else).

    That’s a carefully worded sentence which seems to be more about OfS making choices about its time than an explanatory legal position. Unlike in many other countries, holocaust denial is not in and of itself illegal in the UK – although in the weigh up, Article 17 of the ECHR removes protection from speech that is contrary to fundamental convention values, and cases in the UK have tended to be prosecuted under other legislation such as section 127 of the Communications Act 2003 when the content is deemed “grossly offensive”.

    Quite why OfS has not chosen to explain that is unclear – unless it’s worried about revealing that all sorts of other types of grossly offensive stuff might fall under the balancing provision. And more to the point, as I’ve often said on the site, most holocaust deniers don’t announce that the title of their talk in Room 4b On Tuesday evening will be “the holocaust is a fiction” – which opens up the question of whether or not it’s OK to outlaw holocaust deniers who may or may not engage in actual holocaust denial when they turn up.

    The sole example in the guidance on the weigh-ups over external speakers and extremism is one where the proposed speaker is a self-professed member of a proscribed group. It’s easy to say “well it’s fine to ban them” – what we don’t have here is anything meaningfully helpful on the real cases being handled every year.

    And some of the media’s hardy perennials – universities doing things like signing up to charters with contested “values” or engaging in contested work like decolonisation – are also either carefully contorted or preposterous.

    Hence Example 51 describes a university that [overtly] requires that all teaching materials on British history will represent Britain in a positive light – one of the many not as clever as the authors think they are inversions of the allegations often thrown at woke, UK history hating academics.

    Meanwhile Example 52 nudges and winks at the Stonewall Charter by describing a department of a university that applies for accreditation to a charter body with links to the fossil fuel industry, where the accreditation process requires it to sign up to a set of principles that include:

    Fossil fuel exploration is the best way to meet our future energy needs.

    The text underneath is fascinating. Once you’ve got the “depending on the circumstances” qualifier out of the way, we learn that “institutional endorsement of this principle may discourage expression of legally expressible views”. That’s your “chilling” allegation again.

    But rather than warning against signing it, we merely get:

    …not implementing the provisions of any accreditation that risks undermining free speech and academic freedom is likely to be a reasonably practicable step that university B should now take.

    Replace that with the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, and you can see why the fudge above will satisfy no-one.

    I’ve read the para in the guidance several times now, and each time I read it I resolve different things. Either the university can take a position on contested ideas as long as these aren’t imposed on staff, or it can’t because taking the position on contested ideas would chill staff. Flip a coin.

    It’s that sort of thing that makes the otherwise helpful section that clarifies that you can have a code of conduct for staff and students so silly. Codes of conduct are fine as long as any restrictions on speech reference a legal rule or regime which authorises the interference, that the student, member, member of staff or visiting speaker who is affected by the interference has adequate access to the rule, and if the rule is:

    …formulated with sufficient precision to enable the student, member of staff or

    visiting speaker to foresee the circumstances in which the law would or might be applied, and the likely consequences that might follow.

    I’d tentatively suggest that while that makes sense, OfS’ own guidance represents a set of rules where forseeing how it might respond to a scenario, and the likely consequences that might follow, are clear as mud.

    To clear up protest and disruption rights, OfS stresses viewpoint neutrality, uses its “time, place and manner” confection we first saw last year, and also has a new oft-repeated “essential functions” of higher education qualifier of:

    …learning, teaching, research and the administrative functions and the provider’s or constituent institution’s resources necessary for the above.

    I can’t really call whether OfS thinks the sports hall counts, or whether it thinks the encampment is OK there, but not in a seminar room. Either way, it’s another of those vague definitions that feels open to abuse and interpretation by all sides of a dispute and by OfS itself.

    Another allegation thrown at universities is often about EDI training – Example 53 sets up the idea that an online EDI induction asks if white people are complicit in the structural racism pervading British society, where the only answer marked correct is “True” – a candidate who ticks “False” is required to re-take the test until they have explicitly assented to “True”.

    Maybe I’m being naive, but if that’s grounded in a real example I’d be more worried about that provider’s wider approaches to teaching and assessment than its approach to free speech.

    This university is a vile hell-hole

    A few other fun bits. Fans of reputation management will be disappointed to learn at Example 22 that a social media policy requiring staff to not to post material that is “unnecessarily critical”, coupled with a strong but lawful pop at the provider’s employment practices in a public post on social media, would represent a “protect” policy breach and a “protect” practice breach if the staff member ends up with a warning.

    Meanwhile, notwithstanding the silence over whether full-time SU officers are members or students of a provider, Example 23 has a student representative posting unfavourable commentary on university management on the SU’s website, along with some student testimonials describing students’ experiences of accommodation:

    University Z requires the student to remove this post on the grounds that if the post is reported more widely in the media, this would threaten University Z’s recruitment plans.

    That that would be a breach may feel like a problem for the small number of universities whose senior managers directly threatened SU officers over TEF student submission drafts.

    But more broadly, like so many other examples in the guidance, neither the staff nor the student example get at broader culture issues.

    You might argue that “reasonably practicable steps” in both cases might involve specific commitments to enable dissent, or more explicit encouragement of public discussion over controversial issues.

    You could certainly argue that much of the committee discussion marked “confidential” should be nothing of the sort, and that non-disclosure agreements imposed on settled-with complainants outside of the specific ban on those in sexual misconduct cases should be outlawed.

    You could also argue that in both cases, fears over future funding – your salary for the staff member, your block grant for the SU officer – are classic chillers that need specific steps to be taken. Alas, none of that sort of “why” stuff appears.

    There’s also still a whole bunch of headscratchers. What happens when three different providers have three different sets of policies and codes and all franchise their provision to a fourth provider? Should providers be inspecting the reputation rules in the employment contracts of their degree apprentices or other credit-based work based learning? Now the requirement to tell all new students about all this has been softened, isn’t there still a need to include a lot of FoS material in the still compulsory training to be offered as per E5? And so on.

    In the complaints scheme consultation, there was some controversy over the definition of visiting speakers – including when an invitation manifested as an actual invitation and who was capable of extending one. On this, OfS has actually decided to expand its definition – but neatly sidesteps the Amber Rudd dilemma, namely that while it’s easy to expect people in power to not cancel things because some object, it’s a lot harder to make a volunteer student society run an event that it changes its mind about, regardless of the reason.

    And when the guidance says that OfS would “generally” expect providers to reject public campaigns to punish a student or member of staff for lawful expression of an idea or viewpoint that does not violate any lawful internal regulations, we are still stuck in a situation where some basic principles of democracy for anyone elected on campus – staff, but more often than not, students – come into direct conflict with that expectation even if they are “organised petitions or open letters, an accumulation of spontaneous or organised social media posts, or long-running, focused media campaigns”.

    Changing the culture

    There may well be plenty more to spot in here – legal eagles will certainly be pouring over the document, expectations on all sides may need to be reset, and all in a context of very tight timescales – not least because much of the material implies a need for a much wider review of related policies than just “write a compliant Code”.

    Everyone should also think carefully about the YouGov polling. There are some important caveats to be attached the results and some of the splits based on wording, assumptions and whether it’s even reasonable to expect someone teaching something highly technical to be wading into the sex and gender debate. And whether you’re teaching, researching or otherwise supporting, it must be the case that not all subject areas include as much scope for controversy and “debate” than others.

    But even if you quibble over the N equalling 184, when 24 per cent of those who do not feel free in their teaching cite fear of physical attack, there is a problem that needs urgent interrogation and resolution.

    [Full screen]

    (Thanks as ever to DK for the visualisation of the YouGov polling – sample size 1234 adults and weighted for teaching staff in England, by age, gender, region, and contract type)

    We also still have the debate over the partial repeal of the Act to come too, some additional complexity over complaints to resolve, and as I note above, huge questions like “so can we adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism or not” remain unanswered – as well as a set of inevitable conflicts to come over the practical application of the Supreme Court ruling on the meaning of “woman” in EA2010.

    I should also say that I’ve not had time to properly interrogate the research aspects in the guidance – but we’ll get to that with my colleague James Coe in the coming days.

    What I’m mainly struck by – other than the ways in which a particular set of (contested) views on campus culture have been represented as apolitical – is the way in which, ultimately, much of the material comes down to the regulatory realities of expecting authority to behave.

    In some senses, that’s not unreasonable – governors and leaders hold considerable influence and power over students and staff, and what they ban, or punish, or encourage or celebrate can have important impacts that can be positive for some, and negative for others.

    But to the extent to which there really is a problem with free speech (and academic freedom) on campus, much of it feels much wider and organic than the hermetically sealed campus community assumptions at play in documents of this sort.

    I won’t repeat so many of the things I’ve said on the site over the past few years about confidence being key to a lot of this – suffice to say that the freedom ideal at play in here feels like something that is easier to experience when steps have been taken to improve people’s security, given them time and space to interact meaningfully with each other, and act specifically to boost their bravery.

    Not only should some of the solutions be about resolving conflicts and integrating the concerns into a more stable definition of what it is to be a member of staff or a student, of all the agendas in higher education, it strikes me that this area remains one where solutions and sticks and games of blame abound, but causal analysis feels hopelessly weak.

    In the absence of alternative guidance on the “promote” duty, if I was high up in a university, I’d be resolving to interrogate more carefully and listen more closely before I pretended that my shiny new Code of Practice will do anything other than tick the boxes while making matters worse.

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  • Voters strongly support prioritizing freedom of speech in potential AI regulation of political messaging, poll finds

    Voters strongly support prioritizing freedom of speech in potential AI regulation of political messaging, poll finds

    • 47% say protecting free speech in politics is the most important priority, even if that lets some deceptive content slip through
    • 28% say government regulation of AI-generated or AI-altered content would make them less likely to share content on social media
    • 81% showed concern about government regulation of election-related AI content being abused to suppress criticism of elected officials

    PHILADELPHIA, June 5, 2025 — Americans strongly believe that lawmakers should prioritize protecting freedom of speech online rather than stopping deceptive content when it comes to potential regulation of artificial intelligence in political messaging, a new national poll of voters finds.

    The survey, conducted by Morning Consult for the Foundation for Individual Rights and Expression, reflects a complicated, or even conflicted, public view of AI: People are wary about artificial intelligence but are uncomfortable with the prospect of allowing government regulators to chill speech, censor criticism and prohibit controversial ideas.

    “This poll reveals that free speech advocates have their work cut out for them when it comes to making our case about the important principles underpinning our First Amendment, and how they apply to AI,” said FIRE Director of Research Ryne Weiss. “Technologies may change, but strong protections for free expression are as critical as ever.” 

    Sixty percent of those surveyed believe sharing AI-generated content is more harmful to the electoral process than government regulation of it. But when asked to choose, more voters (47%) prioritize protecting free speech in politics over stopping deceptive content (37%), regardless of political ideology. Sixty-three percent agree that the right to freedom of speech should be the government’s main priority when making laws that govern the use of AI.

    And 81% are concerned about official rules around election-related AI content being abused to suppress criticism of elected officials. A little more than half are concerned that strict laws making it a crime to publish an AI-generated/AI-altered political video, image, or audio recording would chill or limit criticism about political candidates.

    Voters are evenly split over whether AI is fundamentally different from other forms of speech and thus should be regulated differently. Photoshop and video editing, for example, have been used by political campaigns for many years, and 43% believe the use of AI by political campaigns should be treated the same as the use of older video, audio, and image editing technologies.

    “Handing more authority to government officials will be ripe for abuse and immediately step on critical First Amendment protections,” FIRE Legislative Counsel John Coleman said. “If anything, free expression is the proper antidote to concerns like misinformation, because truth dependably rises above.”

    The poll also found:

    • Two-thirds of those surveyed said it would be unacceptable for someone to use AI to create a realistic political ad that shows a candidate at an event they never actually attended by digitally adding the candidate’s likeness to another person.
    • It would be unacceptable for a political campaign to use any digital software, including AI, to reduce the visibility of wrinkles or blemishes on a candidate’s face in a political ad in order to improve the appearance of the candidate, 39% say, compared to 29% who say that it would be acceptable.
    • 42% agree that AI is a tool that facilitates an individual’s ability to practice their right to freedom of speech.

    The poll was conducted May 13-15, 2025, among a sample of registered voters in the US. A total of 2,005 interviews were conducted online across the US for a margin of error of plus or minus 2 percentage points. Frequency counts may not sum to 2,005 due to weighting and rounding.

    The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

    CONTACT
    Karl de Vries, Director of Media Relations, FIRE: 215-717-3473; [email protected] 

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  • FIRE highlights artistic freedom with launch of new YouTube interview series featuring heavy metal and punk’s biggest stars

    FIRE highlights artistic freedom with launch of new YouTube interview series featuring heavy metal and punk’s biggest stars

    Today the Foundation for Individual Rights and Expression presents a new video series — “Fire with FIRE” — featuring some of the biggest and up-and-coming names in heavy metal and punk rock.

    Throughout the summer, FIRE will drop a new conversation every other week on our YouTube channel with the likes of:

    Artists can be the canaries in the coalmine. Too often, they are the first to be censored, or worse — much, much worse. 

    In Nazi Germany, the regime destroyed and banned certain art, particularly Jewish art, and labeled it “degenerate.” Jewish artists like Charlotte Salomon — who some argue created the first graphic novel — were sent to death camps and murdered by Adolf Hitler’s thugs.

    The Soviets were no better. Artists who rebelled against the confines of the state-approved artform of “Socialist Realism” were blacklisted, sent to the gulag, or executed. (After the Soviet Union’s fall, Russian dictator Vladimir Putin revived the old regime’s repression of artists, most famously targeting the punk rock and performance art collective Pussy Riot. Most members now live in exile after criticizing Russia’s brutal invasion of Ukraine.)

    In 1973, the military dictatorship of Gen. Augusto Pinochet tortured and murdered Chilean artist and folk singer Víctor Jara for his music and political activism. His murderers pumped him full of bullets and then dumped his body on a public road. Message sent. 

    After the Islamic Revolution engulfed Iran, the ultra-religious government banned Western heavy metal and punk music. The Iranian regime has persecuted, arrested, and thrown in prison musicians daring to play such music. In 2015, for example, the members of the Iranian death metal band Confess were sentenced to years in prison and 74 lashes for blasphemy, disturbing public opinion, and anti-government propaganda. They fortunately escaped to Norway. 

    America isn’t immune to such crackdowns on creative expression either.

    During the McCarthy era of the late 1940s into the 1950s, artists like director, actor, and writer Orson Welles; screenwriter and novelist Dalton Trumbo of “Spartacus” and “Johnny Got His Gun” fame; folk singer Pete Seeger; and many others were blacklisted because of their left-wing politics and Communist ties, real or imagined. 

    In the 1960s and 1970s, the FBI surveilled artists associated with the Civil Rights and antiwar movements. The bureau maintained files on John Lennon, The Monkees, and the proto-punk band MC5. Even the soul and gospel singer Aretha Franklin had a 270-page FBI file, with G-men monitoring her because of her connections to the Civil Rights movement and “Black extremists.” 

    During the 1980s, the Parents Music Resource Center — co-founded by future Vice President Al Gore’s wife Tipper — created a moral panic around heavy metal, punk, and pop artists like Twisted Sister, the Dead Kennedys, and Prince. The PMRC’s crusade led not only to “Parental Advisory” stickers on albums but also to what is arguably Glenn Danzig’s best composition ever, “Mother.” 

    Enter the “Fire with FIRE” interview series. 

    Every two weeks, FIRE will release conversations with six of the biggest metal and punk artists in music right now about their inspirations, their influences, and why free expression not only makes life worth living, but is also essential to a free society. 

    First up: Spencer Charnas of Ice Nine Kills. What a bloody mess this interview is. Our host Ryan J Downey slices into Spencer’s musical inspirations, why horror movies infest his music and art, and how Disney censored Ice Nine Kills — with Spencer getting the last howling laugh. 


    Like it. Share it. Tell us what you think in the YouTube comments. And let us know who you’d love us to interview in the future!

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  • Tufts PhD Student Released After Six-Week Detention Raising Academic Freedom Concerns

    Tufts PhD Student Released After Six-Week Detention Raising Academic Freedom Concerns

    Rümeysa Öztürk with her attorneyAfter six weeks in federal detention, Tufts University doctoral student Rümeysa Öztürk was released last Friday following a federal judge’s ruling that her continued detention potentially violated her constitutional rights and could have a chilling effect on free speech across college campuses.

    U.S. District Judge William K. Sessions III ordered Öztürk’s immediate release, stating she had raised “substantial claims” of both due process and First Amendment violations. The 30-year-old Turkish national, who was arrested on March 25 outside her Somerville, Massachusetts home by masked federal agents, had been detained at the South Louisiana ICE Processing Center in Basile, Louisiana—more than 1,500 miles from her university.

    “Continued detention potentially chills the speech of the millions and millions of individuals in this country who are not citizens. Any one of them may now avoid exercising their First Amendment rights for fear of being whisked away to a detention center,” Judge Sessions stated during Friday’s hearing.

    Öztürk’s legal team argued that her detention was directly connected to her co-authoring a campus newspaper op-ed critical of Tufts University’s response to the war in Gaza. During the hearing, Judge Sessions noted that “for multiple weeks, except for the op-ed, the government failed to produce any evidence to support Öztürk’s continued detention.”

    The Trump administration had accused Öztürk of participating in activities supporting Hamas but presented no evidence of these alleged activities in court. Öztürk, who has a valid F-1 student visa, has not been charged with any crime.

    Öztürk’s case is part of what appears to be a growing pattern of detentions targeting international students involved in pro-Palestinian activism. Her arrest by plainclothes officers, captured on video showing her being surrounded as she screamed in fear, sparked national outrage and campus protests.

    “It’s a feeling of relief, and knowing that the case is not over, but at least she can fight the case while with her community and continuing the academic work that she loves at Tufts,” said Esha Bhandari, an attorney representing Öztürk.

    The same day as Öztürk’s release, the U.S. Second Circuit Court of Appeals in New York denied an administration appeal to re-arrest Columbia University student and lawful permanent resident Mohsen Mahdawi, another case involving a student detained after pro-Palestinian advocacy.

    During her six weeks in detention, Öztürk, who suffers from asthma, experienced multiple attacks without adequate medical care, according to testimony. At Friday’s hearing, she briefly had to step away due to an asthma attack while a medical expert was testifying about her condition.

    Judge Sessions cited these health concerns as part of his rationale for immediate release, noting Öztürk was “suffering as a result of her incarceration” and “may very well suffer additional damage to her health.”

    In his ruling, Judge Sessions ordered Öztürk’s release without travel restrictions or ICE monitoring, finding she posed “no risk of flight and no danger to the community.” Despite this clear order, her attorneys reported that ICE initially attempted to delay her release by trying to force her to wear an ankle monitor.

    “Despite the 11th hour attempt to delay her freedom by trying to force her to wear an ankle monitor, Rümeysa is now free and is excited to return home, free of monitoring or restriction,” said attorney Mahsa Khanbabai.

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  • Federal Court Blocks Education Department’s Diversity Directive, Marking Victory for Academic Freedom Advocates

    Federal Court Blocks Education Department’s Diversity Directive, Marking Victory for Academic Freedom Advocates


    A federal judge in New Hampshire delivered a significant legal victory Thursday for proponents of diversity, equity, and inclusion (DEI) programs in education by granting a preliminary injunction against the U.S. Department of Education’s controversial February “Dear Colleague” letter that critics had denounced as an unprecedented attempt to restrict DEI initiatives nationwide.

    The ruling temporarily blocks the Education Department from enforcing its February 14, 2025, directive against the plaintiffs, their members, and affiliated organizations while litigation continues. The court determined the directive potentially contradicts established legal protections for academic freedom and may violate constitutional rights by imposing vague restrictions on curriculum and programming.

    The February directive had sent shockwaves through higher education institutions across the country, with many administrators and faculty expressing concern that their diversity programs could trigger federal funding cutoffs. According to court documents, some educators reported feeling targeted by what they characterized as a “witch hunt” that put their jobs and teaching credentials at risk.

    “Today’s ruling allows educators and schools to continue to be guided by what’s best for students, not by the threat of illegal restrictions and punishment,” said National Education Association President Becky Pringle in a statement following the decision. She further criticized the directive as part of broader “politically motivated attacks” designed to “stifle speech and erase critical lessons” in public education.

    The coalition of plaintiffs who filed the lawsuit on March 5 includes the National Education Association (NEA), NEA-New Hampshire, the American Civil Liberties Union (ACLU), ACLU of New Hampshire, ACLU of Massachusetts, and the Center for Black Educator Development.

    Sharif El-Mekki, CEO and founder of the Center for Black Educator Development, emphasized the significance of the ruling beyond its immediate legal implications. “While this interim agreement does not confirm the Department’s motives, we believe it should mark the beginning of a permanent withdrawal from the assault on teaching and learning,” he said. “The Department’s attempt to punish schools for acknowledging diversity, equity and inclusion is not only unconstitutional, but it’s also extremely dangerous — and functions as a direct misalignment with what we know to be just and future forward.”

    Education legal experts note that the case represents a critical battleground in the ongoing national debate about how issues of race, identity, and structural inequality should be addressed in educational settings. The preliminary injunction suggests the court found merit in the plaintiffs’ arguments that the Education Department overstepped its authority and potentially violated First Amendment protections.

    Sarah Hinger, deputy director of the ACLU Racial Justice Program, called the ruling “a victory for students, educators, and the fundamental principles of academic freedom,” adding that “every student deserves an education that reflects the full diversity of our society, free from political interference.”

    The lawsuit challenges the directive on multiple legal grounds, including violations of due process and First Amendment rights, limitations on academic freedom, and exceeding the department’s legal mandate by dictating curriculum content. The plaintiffs argue that the directive created a chilling effect on legitimate educational activities while imposing vague standards that left educators uncertain about compliance requirements.

    Gilles Bissonnette, legal director of the ACLU of New Hampshire, emphasized the importance of the ruling for educational inclusivity. “The court’s ruling today is a victory for academic freedom, the free speech rights of educators, and for New Hampshire students who have a right to an inclusive education free from censorship,” he said. “Every student, both in the Granite State and across the country, deserves to feel seen, heard, and connected in school – and that can’t happen when classroom censorship laws and policies are allowed to stand.”

    The injunction comes at a time when many colleges and universities have been reassessing their diversity initiatives amid increased public scrutiny and policy debates. Higher education institutions have expressed particular concern about maintaining both compliance with federal regulations and their commitments to creating inclusive learning environments.

    The Department of Education has not issued a public response to the court’s decision. The case will now proceed to further litigation as the court considers whether to permanently block the directive.

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  • Department of Education No Longer Posting Freedom of Information Requests

    Department of Education No Longer Posting Freedom of Information Requests

    The US Department of Education (ED) has stopped posting up-to-date Freedom of Information (FOIA) logs. These logs had been posted and updated from 2011 to September 2024 to improve transparency and accountability to the agency.  We have reached out ED for a statement. We are also awaiting for a number of information requests, some of which have taken more than 18 months for substantive replies. 

     

     

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  • ‘I hate freedom of opinion’ meme leads to sentencing in German court

    ‘I hate freedom of opinion’ meme leads to sentencing in German court

    Last year, FIRE launched the Free Speech Dispatch, a regular series covering new and continuing censorship trends and challenges around the world. Our goal is to help readers better understand the global context of free expression. Want to make sure you don’t miss an update? Sign up for our newsletter. 

    Guilty finding for German editor’s doctored “I hate freedom of opinion” image 

    Germany’s speech policing can’t stay out of the spotlight for long, apparently. This month, David Bendels, editor-in-chief for the Alternative for Germany (AfD)-affiliated Deutschland Kurier, received a seven-month suspended sentence for “abuse, slander or defamation against persons in political life.” 

    The offense? Bendels had edited and posted a photo of Interior Minister Nancy Faeser so that a sign she held said, “I hate freedom of opinion.” (Just think of how many different versions you saw of the Michelle Obama sign meme here in the U.S.) A Bavarian district court found Bendels guilty under a provision giving advanced protections to political figures against speech. Bendels’ sentencing has provoked criticism outside of his political circle, with figures like former Green Party leader Ricarda Lang questioning the “proportionality” of the ruling.

    Political speech under fire, from Thailand to Zimbabwe to Russia 

    • American academic Paul Chambers, a Naresuan University lecturer, has lost his visa and is facing trial after the Royal Thai Army accused him of violating Thailand’s oppressive lese-majeste laws. The laws, which ban insults to the country’s monarchy, regularly result in long prison sentences for government critics.
    • Hamas militants tortured a Palestinian man to death after he participated in anti-Hamas protests.
    • A St. Petersburg military court sentenced 67-year-old Soviet-era dissident Alexander Skobov to 16 years in prison for participating in the Free Russia Forum and making a social media post in support of Ukraine.
    • Indian comedian Kunal Kamra is experiencing a wave of retaliation after joking about state leader Eknath Shinde at a comedy club. Kamra is facing multiple criminal charges, including defamation, as well as death threats. But he isn’t backing down — his response on X included a “step-by-step guide” on “How to Kill an Artist.”
    • Zimbabwe police have detained journalist Blessed Mhlanga for weeks on charges of “transmitting information that incites violence or causes damage to property.” He had interviewed a veteran and political figure who called for the resignation of President Emmerson Mnangagwa.
    • Israeli military temporarily blindfolded, handcuffed, and detained filmmaker Hamdan Ballal, best known for the Oscar-winning documentary “No Other Land,”  while he was receiving medical care after settlers attacked him during Ramadan near his home in the West Bank.
    • Burkina Faso’s military junta is accused of forcibly conscripting journalists who criticized severe press freedom violations in the country.
    • Nigeria’s Borno State arrested a 19-year-old for his viral social media post criticizing public schools in the region and intend to charge him with “ridiculing and bringing down the personality of” the governor.
    • Lawyers representing dissenting voices aren’t free from consequences, either. An Iranian court sentenced a dozen lawyers who provided legal services to clients from the country’s 2022 protest movement to three years in prison on “propaganda” charges. 

    Turkey targets journalists amid protests

    Protesters gather in Istanbul after the detention of the city’s Mayor Ekrem Imamoglu.

    Last month, Turkish police banned protests in Istanbul and arrested the city’s Mayor Ekrem Imamoglu, a popular rival of President Recep Tayyip Erdogan. The crackdown has extended to the press, too. Authorities arrested BBC correspondent Mark Lowen and deported him for “being a threat to public order,” arrested AFP photographer Yasin Akgül for “taking part in an illegal gathering,” and charged Swedish journalist Kaj Joakim Medin for allegedly “being a member of a terrorist organization” and “insulting” Erdogan. 

    The latest in tech and censorship:

    • Late last month, a massive earthquake struck Myanmar, causing thousands of deaths and injuries. But the country’s military junta nevertheless continued severe restrictions on reporting and internet access, hampering recovery efforts.
    • The Kenyan high court in Nairobi ruled that a lawsuit alleging Meta’s content moderation practices fueled violence in Ethiopia can go forward.
    • Meta says it’s facing “substantial” fines because it “pushed back on requests from the Turkish government to restrict content that is clearly in the public interest” in the aftermath of Mayor Imamoglu’s arrest.
    • Turkish authorities also demanded the social media platform X block hundreds of accounts within the country, to which X partially complied but has since challenged some of the orders “to defend the expression of our users.”
    • X is also challenging the use of a provision of India’s Information Technology Act to issue content takedown orders.
    • India’s Supreme Court, in response to Wikimedia Foundation’s appeal against an order from the Delhi High Court, pushed back against that court’s demand that Wikipedia take down a page detailing Asian News International’s lawsuit against the Foundation.
    • The Investigatory Powers Tribunal issued a ruling opposing the UK government’s attempt to keep secret Apple’s appeal against orders that it offer a backdoor in its encrypted cloud service for users around the world.
    • European Union authorities are reportedly planning to announce penalties including “a fine and demands for product changes” against X for alleged violations under the Digital Services Act.

    Pakistan’s blasphemers still under attack

    Late last month, a Pakistan court sentenced five men to death for posting “blasphemous” content online, a common charge and penalty in Pakistan. But that’s not all. A Pakistani YouTuber is also facing blasphemy charges (not his first) for naming a perfume “295” — a reference to the blasphemy law in the country’s penal code.

    Let’s check back in across the pond…

    Lately, it seems not a day goes by without the UK’s free speech issues hitting the headlines. This month is no different. Here’s the latest:

    • As I’ve written about in recent editions of the Dispatch, the UK has been flirting with enforcement of blasphemy laws in the country. That risk has advanced with the charge of “intent to cause against the religious institution of Islam, harassment, alarm or distress” filed against a man who burned a Quran outside the Turkish consulate in London. The alleged target in the case — the “religious institution of Islam” — is notable.
    • On the other hand, the UK’s Advertising Standards Authority chose not to act on hundreds of complaints filed over an allegedly anti-Christian KFC ad that “depicts a man being baptised in a lake of gravy before transforming into a human-sized chicken nugget.”(Last year, the ASA did act against a comedy tour ad that could cause “serious offence” to Christians.)
    • A lower court in Poole found anti-abortion activist Livia Tossici-Bolt guilty on two charges of breaching a public spaces protection order for standing outside an abortion clinic with a sign that read “Here to talk, if you want.” The court gave her a conditional discharge and ordered her to pay £20,000 (about $27,000) in legal costs.
    • Over 30 police officers arrested six activists from Youth Demand at a Quaker meeting house in London “on suspicion of conspiracy to cause a public nuisance.” One member said the group was “so incensed” by the raid “that they didn’t even offer officers a cup of tea.”
    • Hertfordshire police are conducting a “rapid and thorough review” after the arrest and 11-hour detainment of  a couple on various charges, including harassment and malicious communications because they voiced complaints about their daughter’s school on WhatsApp.
    • The aforementioned arrests are just a drop in the pond — data obtained by The Times found that UK police are detaining around 12,000 people annually for “sending messages that cause ‘annoyance’, ‘inconvenience’ or ‘anxiety’ to others via the internet, telephone or mail.”

    China’s critics targeted in Hong Kong — and Canada 

    Chinese dissident artists Badiucao

    Chinese dissident artist and human rights activist Badiucao holding his Lennon Wall flag that he designed in support of Hong Kong’s pro-democracy movement, October 5, 2019.

    Milan digital gallery Art Innovation is facing criticism for its response to an artist it featured in a short video broadcast on billboards during a recent art fair in Hong Kong. In it, artist, CCP critic, and frequent target of censorship Badiucao mouthed the words, “You must take part in revolution,” a Mao Zedong quote and the title of his new graphic novel. 

    When he announced that he planned to publish a statement about his effort to skirt Hong Kong’s censorship laws, Art Innovation warned him there would “definitely” be legal action if material “against the Chinese government is published.” And in a social media post, the gallery said Badiucao was not upfront about the “nature of the work” so they “can consider it a crime.”

    And that’s not all the news out of Hong Kong. In recent weeks, a 57-year-old man was sentenced to a year in prison for “seditious” social media posts including some calling the Chinese government a “terrorist state” and an “evil axis power.” Police also took in for questioning the parents of U.S.-based democracy activist Frances Hui, who is wanted in Hong Kong on national security charges.

    Hong Kong’s campaign to target its activists is causing a stir elsewhere, too — in Canadian elections. Canadian member of parliament and Liberal Party candidate Paul Chiang stepped down from the April 28 election days after a video of comments he made earlier this year surfaced. In it, Chiang encouraged people to bring Conservative party candidate Joe Tay, who is wanted by Hong Kong authorities, to Toronto’s Chinese consulate to collect a bounty for him.

    P.S. If you enjoyed this newsletter, you may be interested in my book, “Authoritarians in the Academy: How the Internationalization of Higher Education and Borderless Censorship Threaten Free Speech.” It comes out Aug. 19 and is now available for pre-order!

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  • Sixty-one media organizations and press freedom advocates contest Perkins Coie executive order — First Amendment News 466

    Sixty-one media organizations and press freedom advocates contest Perkins Coie executive order — First Amendment News 466

    All of the vile executive orders issued by the Trump administration against law firms refer to purported “significant risks” associated with them, and have the same whiff of oppression:

    Below the veneer of such boilerplate claims lies a repressive truth: they’re designed to be punitive, and to produce a fear that leads to robotic subservience. They are but a part of Trump’s enemies list. And his orders are to be executed by his lackey Attorney General Pam Bondi — the same person who once said: “I will fight every day to restore confidence and integrity to the Department of Justice and each of its components. The partisanship, the weaponization will be gone.”

    Mason Kortz (left) and Kendra Albert

    Against that backdrop comes a courageous group of lawyers and press groups led Andrew Sellers, with Mason Kortz joined by Kendra K. Albert as local counsel. 

    Mr. Sellers filed the amicus brief on behalf of 61 media organizations and press freedom advocates in the case of Perkins Coie v. U.S. Department of Justice. At the outset he exposes the real agenda of the authoritarian figure in the White House:

    “The President seeks the simultaneous power to wield the legal system against those who oppose his policies or reveal his administration’s unlawful or unethical acts—who, in many cases, have been members of the press—and then deny them access to the system built to defend their rights. The President could thus ‘permit one side to have a monopoly in expressing its views,’ which is the “antithesis of constitutional guarantees.’”

    Mr. Sellers reminds us that “‘freedom of the press holds an . . . exalted place in the First Amendment firmament,’ because the press plays a vital role in the maintenance of democratic governance. To fulfill that function, the press relies on the work of lawyers. Lawyers assist the press in obtaining access to records and government spaces . . . because the press plays a vital role in the maintenance of democratic governance.”

    Andrew Sellars

    Andrew Sellars

    To honor that principle, Sellers argues that “the press relies on the work of lawyers. Lawyers assist the press in obtaining access to records and government spaces. They advise the press on how to handle sensitive sources and content. And they defend the press against civil and criminal threats for their publications.”

    Among other key points made in this important brief is the following one:

    If the Executive Order stands, many lawyers will be chilled from taking on work so directly in conflict with the President, out of fear for the harm it would cause to their clients whose relationship with the government is more transactional. For the lawyers that remain, the threat of a similar executive order aimed at them or their law firms would practically prevent them from doing their jobs, by denying their access to the people and places necessary to adjudicate their issues. 

    The project was spearheaded by The Press Freedom Defense Fund (a project of Intercept) and the Freedom of the Press Foundation.

    Some of the lawyers who signed this amicus brief include Floyd Abrams, Lee Levine, Seth Berlin, Ashley Kissinger, Elizabeth Koch, Lynn B. Oberlander, David A. Schulz, and Charles Toobin.

    The Table of Contents appears below:

    Introduction & Summary of Argument

    Interests of Amici

    Argument

    1. A Free Press Allows the Public to Check Overreaching Government but Requires Legal Support.
    2. The Oppositional Role of the Press Will Not Function if the Court Allows This executive order.
    3. The government will inevitably use this authoritarian power to target the press.
    4. The executive order will chill lawyers from working with the press.
    5. The lawyers that remain will be unable to do their jobs.
    6. Without a Robust Press, the Public will Lose a Key Vindicator of First Amendment Rights.

    Related

    Pronoun punishment policy in the Trump administration

    You know those email signatures at the end of messages? The ones that include a range of information about the senders — phone numbers, addresses, social media handles. And in recent years, pronouns — letting the recipient know that the sender goes by “she,” “he,” “they” or something else, a digital acknowledgement that people claim a range of gender identities.

    Among those who don’t agree with that are President Donald Trump and members of his administration. They have taken aim at what he calls “gender ideology” with measures like an executive order requiring the United States to recognize only two biological sexes, male and female. Federal employees were told to take any references to their pronouns out of their email signatures.

    That stance seems to have spread beyond those who work for the government to those covering it. According to some journalists’ accounts, officials in the administration have refused to engage with reporters who have pronouns listed in their signatures.

    The New York Times reported that two of its journalists and one at another outlet had received responses from administration officials to email queries that declined to engage with them over the presence of the pronouns. In one case, a reporter asking about the closure of a research observatory received an email reply from Karoline Leavitt, the White House press secretary, saying, “As a matter of policy, we do not respond to reporters with pronouns in their bios.”

    Dare one ask? Is pro-Palestinian speech protected?

    Esha Bhandari

    Esha Bhandari (Photo courtesy of the ACLU)

    Shortly after his inauguration, President Donald Trump vowed to combat antisemitism on U.S. college and university campuses, describing pro-Palestinian activists and protesters as “pro-Hamas,” and threatening to revoke their visas.

    The first target of these threats was Mahmoud Khalil, a pro-Palestinian activist and former student of Columbia University, who was a negotiator for Columbia students during talks with university officials regarding their tent encampment last spring, according to The Associated Press.

    Since his arrest, more than half a dozen scholars, professors, protesters and students have had their visas revoked with threats of deportation. Two opted to leave the country on their own terms, unsure of how legal proceedings against them would play out.

    Free speech and civil liberties organizations have raised concerns over the arrests, claiming the Trump administration is targeting pro-Palestinian protesters for constitutionally protected political speech because of their viewpoints.

    [ . . . ]

    First Amendment Watch spoke with Esha Bhandari, deputy director of the ACLU’s Speech, Privacy and Technology Project, about the First Amendment implications of the Trump administration’s alleged targeting of pro-Palestinian protesters and activists. Bhandari explained how actions taken under the Immigration and Nationality Act need to be consistent with the First Amendment, described the importance of the right to peacefully assemble, and expressed that all Americans, regardless of their viewpoint, should be concerned with the Trump administration’s actions and its chilling of speech.

    [Interview follows]

    David Cole on the war on the First Amendment


    Just released: Oxford University Press handbook on free speech

    Cover of “The Oxford Handbook of Freedom of Speech” edited by Adrienne Stone and Frederick Schauer

    Freedom of speech is central to the liberal democratic tradition. It touches on every aspect of our social and political system and receives explicit and implicit protection in every modern democratic constitution. It is frequently referred to in public discourse and has inspired a wealth of legal and philosophical literature. The liberty to speak freely is often questioned; what is the relationship between this freedom and other rights and values, how far does this freedom extend, and how is it applied to contemporary challenges?

    “The Oxford Handbook on Freedom of Speech” seeks to answer these and other pressing questions. It provides a critical analysis of the foundations, rationales, and ideas that underpin freedom of speech as a political idea, and as a principle of positive constitutional law. In doing so, it examines freedom of speech in a variety of national and supranational settings from an international perspective.

    Compiled by a team of renowned experts in the field, this handbook features original essays by leading scholars and theorists exploring the history, legal framework, and controversies surrounding this tenet of the democratic constitution.

    Forthcoming book on free speech and social media platforms

    Northeastern University Professor John Wihbey

    Northeastern University Professor John Wihbey

    Why social media platforms have a responsibility to look after their platforms, how they can achieve the transparency needed, and what they should do when harms arise.

    The large, corporate global platforms networking the world’s publics now host most of the world’s information and communication. Much has been written about social media platforms, and many have argued for platform accountability, responsibility, and transparency. But relatively few works have tried to place platform dynamics and challenges in the context of history, especially with an eye toward sensibly regulating these communications technologies.

    In ”Governing Babel,” John Wihbey articulates a point of view in the ongoing, high-stakes debate over social media platforms and free speech about how these companies ought to manage their tremendous power.

    Wihbey takes readers on a journey into the high-pressure and controversial world of social media content moderation, looking at issues through relevant cultural, legal, historical, and global lenses. The book addresses a vast challenge — how to create new rules to deal with the ills of our communications and media systems — but the central argument it develops is relatively simple. The idea is that those who create and manage systems for communications hosting user-generated content have both a responsibility to look after their platforms and have a duty to respond to problems. They must, in effect, adopt a central response principle that allows their platforms to take reasonable action when potential harms present themselves. And finally, they should be judged, and subject to sanction, according to the good faith and persistence of their efforts.

    Franks and Corn-Revere to discuss ‘Fearless Speech’

    Coming this Thursday over at Brooklyn Law School:

    Book Talk: Dr. Mary Anne Franks’ Fearless Speech

    Featuring:

    • Dr. Mary Anne Franks
      Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law, George Washington Law School; President and Legislative & Tech Policy Director, Cyber Civil Rights Initiative

    • Robert Corn-Revere
      Chief Counsel, Foundation for Individual Rights and Expression (FIRE)

    Moderators

    • William Araiza, Stanley A. August Professor of Law, Brooklyn Law School

    • Joel Gora, Professor of Law, Brooklyn Law School

    Discussants

    • Ron Collins, Co-founder of the History Book Festival and former Harold S. Shefelman Scholar, University of Washington Law School

    • Sarah C. Haan, Class of 1958 Uncas and Anne McThenia Professor of Law, Washington and Lee University School of Law

    Lukianoff’s TED talk

    Greg Lukianoff delivering his TED Talk on April 9, 2025

    FIRE President and CEO Greg Lukianoff (Photo by Gilberto Tadday / TED)

    Last Wednesday, FIRE’s Greg Lukianoff delivered his first TED talk at TED 2025 in Vancouver. He spoke on why so many young people have given up on free speech and how to win them back. As he noted in a recent post for his Substack newsletter, The Eternally Radical Idea:

    “After months of seemingly endless writing, rewriting, and rehearsing, I’m very happy with how it turned out! (Many thanks to Bob Ewing, Kim Hemsley, Maryrose Ewing, and Perry Fein for helping me prepare. Couldn’t have done it without them!)

    We’re not yet sure when the full talk will be available online, but we’ll keep you posted!”

    ‘So to Speak’ podcast: The plight of global free speech


    We travel from America to Europe, Russia, China, and more places to answer the question: Is there a global free speech recession?

    Guests:

    More in the news

    2024-2025 SCOTUS term: Free expression and related cases

    Cases decided 

    • Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
    • Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
    • TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

    Review granted

    Pending petitions

    Petitions denied

    Emergency applications

    • Yost v. Ohio Attorney General (Kavanaugh, J., “It Is Ordered that the March 14, 2025 order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)

    Free speech related

    • Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito & Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)

    Last scheduled FAN

    FAN 465: “‘Executive Watch’: The breadth and depth of the Trump administration’s threat to the First Amendment”

    This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.

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