Tag: freespeech

  • Everyone’s a free-speech hypocrite | The Foundation for Individual Rights and Expression

    Everyone’s a free-speech hypocrite | The Foundation for Individual Rights and Expression

    This essay was originally published in The New York Times on Sept. 23, 2025.

    If you’re a free-speech lawyer, you face a choice: Either expect to be disappointed by people of all political stripes — or go crazy. I choose low expectations.

    Again and again, political actors preach the importance of free speech, only to reach for the censor’s muzzle when it helps their side. If, like me, you defend free speech as a principle rather than invoke it opportunistically, you get distressingly accustomed to seeing the same people take opposite positions on an issue, sometimes within the space of just a few months.

    On the first day of his second presidential term, for example, Donald Trump signed an executive order titled “Restoring Freedom of Speech and Ending Federal Censorship,” castigating the Biden administration for pressuring online platforms to censor Americans’ speech. Last Thursday Mr. Trump mused that when broadcasters portray him negatively, “maybe their license should be taken away.”

    Or consider hate speech. The concept was developed in the 1980s by leftist legal scholars like Richard Delgado and Mari Matsuda, and it shaped the campus speech codes and so-called political correctness of the 1990s. Intellectuals on the right were quick to contest the idea of hate speech — U.S. law does not recognize a general hate-speech exception to the First Amendment, and never has. Charlie Kirk rejected the idea of using hate speech rationales to crack down on free speech. Yet after Mr. Kirk’s assassination, Republicans rushed to promise crackdowns on hateful expression, deploying the same concept.

    Critics of the idea of hate speech, including my organization, have long warned that the concept is so vague and broad that it provides a handy weapon to censor almost any opinion.

    Last week, Attorney General Pam Bondi vowed that “we will absolutely target you, go after you, if you are targeting anyone with hate speech.” When Mr. Trump was asked about this statement by Jonathan Karl of ABC, he said that Ms. Bondi would “probably go after people like you,” and that Mr. Karl’s network — which last year settled a defamation lawsuit brought by Mr. Trump — paid “$16 million for a form of hate speech.”

    Critics of the idea of hate speech, including my organization, have long warned that the concept is so vague and broad that it provides a handy weapon to censor almost any opinion. Unfortunately we have been vindicated on this point.

    Consider, too, the fight against so-called misinformation and disinformation. The Biden administration created (and then quickly shuttered, following criticism) an advisory board at the Department of Homeland Security on the threat of disinformation. The Biden administration also pressured social media platforms to censor Americans who posted what the administration considered obvious falsehoods, including the suggestion — now considered plausible by a large assortment of mainstream institutions and experts — that the coronavirus originated from a laboratory in Wuhan, China.

    Today, the right is making the same mistakes. The late-night talk show host Jimmy Kimmel included a line in a recent monologue suggesting that Mr. Kirk’s killer was a Trump sympathizer — which prosecutors’ documents seem to contradict. In the wake of conservative outrage, ABC suspended Mr. Kimmel’s show. That was an overreaction: If partisan wishful thinking were a regulatory infraction, few comedians or commentators on the left or the right would still have a job. (ABC said on Monday that it would resume Mr. Kimmel’s show on Tuesday.)

    It’s possible that Disney, ABC’s parent company, would have punished Mr. Kimmel on its own. But the Trump administration took the initiative. Before ABC suspended Mr. Kimmel’s show, the chairman of the Federal Communications Commission, Brendan Carr, said during a podcast interview: “We can do this the easy way or the hard way. These companies can find ways to change conduct, to take action, frankly on Kimmel, or there’s going to be additional work for the F.C.C. ahead.”

    Using your opponents’ nastiest tools doesn’t persuade them to disarm; it inspires retaliation.

    And then there’s cancel culture. The right has long balked at the use of social pressure to punish conservative thinkers by, for instance, getting them fired from their jobs. The rise in cancellations that began around 2014 was initially celebrated by the left, which it defended as “consequence culture.” Now comes the inevitable role reversal. A few days ago, Vice President JD Vance urged those who saw people celebrating Mr. Kirk’s assassination to “call them out,” including by calling “their employer.”

    I don’t like having to make a case for human rights such as freedom of speech by appealing to self-interest; these are supposed to be rights whose importance transcends one’s personal needs. But for political partisans, it’s often the only argument that cuts through. So here’s my practical warning: The weapon that you reach for today will be used against you tomorrow.

    Using your opponents’ nastiest tools doesn’t persuade them to disarm; it inspires retaliation. Tit for tat, forever and ever.

    “Free speech for me, but not for thee” is an all-too-familiar impulse in politics. But the point of the principle of free speech is that how we respond to ideas we don’t like is ultimately not about our opponents’ rights — it’s about ours.

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  • OfS free-speech absolutism allows abuse, harassment, and bullying

    OfS free-speech absolutism allows abuse, harassment, and bullying

    • By Professor Sasha Roseneil FAcSS PFHEA, Vice-Chancellor and President of the University of Sussex.

    On 26 March 2025, after a three-and-a-half-year long, deeply flawed, investigation into freedom of speech and academic freedom at the University of Sussex, the Office for Students issued the unprecedently high fine of £585,000, and decreed a form of free-speech absolutism as the new golden rule for universities.  Henceforth, it would appear that universities can only control a very narrowly defined version of unlawful speech that ignores our broader legal and ethical obligations to students and staff. It is an unworkable and highly detrimental decision for the whole higher education sector.

    The investigation was initiated in October 2021 in the context of protests against gender-critical philosopher Professor Kathleen Stock, around the time that she decided to resign from her position at Sussex. Much of the media and public reaction to the OfS’s decision has seen it as vindication of Kathleen Stock, and indeed the OfS itself gives as a reason for publishing the decision, that it would be ‘likely to make Professor Stock feel vindicated and may also vindicate her in public perception’. Indeed, the only person interviewed in the investigation was Kathleen Stock. This is despite the OfS acknowledging that it did not have the power to act on behalf of any individual, and that it has not investigated the circumstances relating to Kathleen Stock.

    Many commentators also regard the outcome as vindication of the gender-critical beliefs that Kathleen Stock professed during her time at Sussex and since. But again, the investigation was not a judgement in the toxic disputes about sex and gender, and the identities and rights associated with each. It is not the OfS’s role to make such judgements – in its own words it is ‘viewpoint neutral’ – just as it not the role of a university, or a Vice-Chancellor, to do so.

    Universities are arenas in which the most controversial ideas of the day are contested – and recent years have seen waves of protest and unrest on campuses across the world about a number of fiercely disputed issues. It is the job of university leaders to facilitate and contain that contestation so that it serves to advance the purpose of universities – the education and development of students and the advancement of knowledge and understanding. Continual efforts to promote and protect overlapping but not identical liberties – freedom of speech and academic freedom – are vital in this. So too are actions to ensure the absence of intimidation and bullying, and to create inclusive, supportive, and respectful learning and working environments, in which people of diverse backgrounds, beliefs and identities can succeed as individuals and come together in productive dialogue, however vehemently they might disagree. Indeed, the exercise of academic freedom and freedom of speech depends on this. Freedom of speech cannot mean the ability to shout the loudest or to abuse and frighten less powerful opponents into silence.

    The OfS’s has just made this work of universities infinitely harder, if not impossible. The single short offending document identified by the OfS, on which the weight of its findings rest, was designed to protect the welfare of trans and non-binary staff and students, a student group the OfS itself identifies as at particular risk in relation to access to and participation in higher education. When adopted at Sussex in 2018 – around the same time as at many other universities across the country – thinking about how best to support trans and non-binary people within universities was just beginning, and gender-critical beliefs had not yet been recognised as ‘protected philosophical beliefs’ under the 2010 Equality Act.   

    If the OfS is ‘viewpoint neutral’, its findings about a policy statement seeking to support trans and non-binary staff and students must be understood to apply to all staff and students – whatever their beliefs and identities. A thought experiment helps make the point: replace the trans and non-binary people with whose protection the offending document is concerned with members of other minoritised and marginalised groups – Jewish, Black, Muslim or Gypsy, Roma and Traveller people, disabled people, or lesbians and gay men, for instance.

    The implications of the OfS decision are wide ranging and highly corrosive of attempts to create diverse, inclusive, and equal working and learning environments, and threaten university autonomy. Under the OfS’s ruling, it would seem that universities cannot seek to prevent our curricula from relying on or reinforcing stereotypical assumptions about (for example) Jews or Black people, because to do otherwise could limit lawful speech. Universities cannot, from now on, remove antisemitic or racist propaganda from campus unless what it says is unlawful – again, extremely narrowly defined. And universities should not discipline anyone who engages in abuse, harassment or bullying unless that abuse, harassment or bullying meets the legal definition of harassment or hate speech – even if it breaches a range of other duties and obligations.

    In effect, the decision implies that universities cannot have policies that aim to reduce abuse, bullying and harassment – whether motivated by transphobia, antisemitism, homophobia, Islamophobia, racism, or sexism – beyond simply reproducing existing restrictions in law (which restrictions the OfS appears not to understand – for example, it does not appreciate that abuse, bullying and harassment are restricted by the Public Order Act 1986).

    It is, I fear, a charter that risks giving free rein to antisemitic, anti-Muslim, homophobic, racist, sexist, and anti-trans speech and expression in universities, as long as it stays just on the right side of the law.

    Moreover, the decision could be significantly at odds both with the wider legal obligations of universities in relation to equalities, and with the OfS’s own regulatory expectations regarding equality of opportunity for students, the quality and standards of the academic experience, and the soon to be introduced requirement to take steps to protect students from harassment and sexual misconduct.

    The OfS’s regressive and dangerous decision threatens the cohesion and governability of each of England’s diverse and vibrant universities, and it must be set aside. Today Sussex is publishing our pre-action protocol letter, which sets out the grounds of our legal challenge. I invite the OfS to respond positively, and to become a regulator that seeks collaboration and open dialogue with universities rather than punishment.

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