Freedom of speech versus the ‘right to participate’
NEWS FROM UNCIBAL
‘Tis this Delegate’s trade for t’ speak,’ said Stephen, ‘an’ he’s paid for ‘t, an’ he knows his work. Let him keep to ‘t. Let him give no heed to what I ha had’n to bear. That’s not for him. That’s not for nobbody but me.’
-From Hard Times
Two weeks ago, the Office for Students (OfS), the UK’s university regulator, issued the University of Sussex with a fine of £585,000 for failing to uphold freedom of speech and academic freedom. This was the culmination of an investigation, taking over three years, into the University’s trans- and non-binary equality policy statement, which the OfS decided had a ‘chilling effect’ on the speech of staff and students. This was because that statement declared, among other things, that ‘transphobic propaganda’ (i.e., gender-critical views) would ‘not be tolerated’. The trigger for the investigation was the turmoil surrounding the resignation of Professor Kathleen Stock, a philosopher at Sussex who was hounded out from her position by trans activists after having expressed the view that biological sex is real and matters.
The reaction from Sussex itself has been curious. One might have expected a certain amount of contrition and a period of self-reflection. But the response has, rather, been something like that of a wounded terrier. The OfS, according to Sussex’s Vice-Chancellor, Sasha Roseneil, is in the grip of a ‘sort of libertarian, free speech absolutism’ that has led it to ‘persecute’ an innocent university and ‘perpetuat[e] the culture wars’. A judicial review appears to be in the offing (you can read the Pre-Action Protocol letter here); the main thrust of the argument would appear to be that the OfS is wrongfully preventing universities from restricting lawful speech, and that this will in turn restrict universities’ ability to prevent ‘bullying’ that would otherwise be lawful – for example, in the form of an ‘academic shouting at students’. (Never mind, of course, circumstances in which large numbers of students shout at an academic, which would more accurately describe the Kathleen Stock scenario.)
As Roseneil herself put things, with disarming honesty, ‘it cannot be that we are only able to expect people to obey the law’. Universities need to go beyond the law, you see, in restricting speech: they need to ‘create diverse, inclusive and equal working and learning environments’. And this means stopping people from saying anything that might upset anybody else – with the proviso, of course, that this applies more forcefully depending on who ‘anybody else’ refers to.
Sussex’s robust stance has been backed up by a deeply odd contribution from Professor David Green, Vice-Chancellor of the University of Worcester. ‘Using coercive powers of the state risks terrifying university leaders into a culture of compliance,’ Professor Green told the Guardian, and this is ‘the very opposite of the democratic and free culture for which we should be working’. He continued with a sweeping declaration: ‘the OfS has chosen to deal Sussex and all England’s higher education institutions a lesson in authoritarianism’.
This is the reasoning of the Bizarro World: enforcing freedom of speech requirements with respect to an issue of immense public interest is ‘the very opposite’ of a democratic and free culture; fining a university for failing to protects its staff from a mob is ‘a lesson in authoritarianism’. Up is down, left is right, backwards is forwards and cats are dogs. But we should not be satisfied with ending our analysis there. Roseneil and Green are intelligent, reasoning adults. So what is the explanation for this upside-down interpretation of what terms such as ‘democratic’, ‘ free’, and ‘authoritarianism’ mean?
The answer is that both of these figures are, presumably unconsciously, implicitly echoing the types of arguments that are now routinely made in global governance circles with respect to how freedom of expression fits into what democracy entails and requires. And examining the assumptions on which their comments rest reveal that those arguments now thoroughly permeate the thinking of the highly educated, internationally mobile, ultra privileged ‘new elite’ class who still populate the upper echelons of our institutions. In short, that class now finds itself in the grip of a rejection of the concept of freedom of speech, or freedom of expression, and a replacement of it with something that better fosters a ‘democratic and free culture’ as they conceive of it – namely, a putative ‘right to participate’.
To see the explicit expression of this reasoning, it is useful to examine the most recent iteration of the United Nations Office of the High Commissioner for Human Rights’ Management Plan, a policy document that sets out the strategic priorities of the Office and, by implication, of the UN human rights system in general, for a three-year period (the current one running from 2024-2027).
The way the Plan does this is exceedingly complex; perhaps taking a leaf out of Keir Starmer’s book on policy planning, the OHCHR postulates a ‘Theory of Change’ which acts through realising ten conditions; six ‘strategic directions’, a further six ‘pillars’; various ‘global targets’; eight ‘organisational effectiveness action plans’, and so on. But the overall message is fairly straightforwardly summarised and indeed is all laid out in the very title: realising human rights is essentially a matter of good management. Everything works best when well-intentioned experts are in charge. As Volker Türk, the High Commissioner puts it in his introduction, the name of the game is for benevolent technocrats to ‘craft solutions that will benefit all our human family’.
What this means is that a caveman-like insistence on deploying the blunt object of ‘freedom of speech’ is definitely off the table. The thing about ‘freedom of speech’ is that it implies, broadly, an approach erring on the side of laissez-faire. But the trouble with, as it were, laissezing things faire is that it means there is nothing really for experts to direct, manage, craft, or plan. Indeed, laissez-faire represents rather the opposite – a lot of disorganisation, messiness, and imperfection. When people have freedom of speech they use that freedom to say things. And since there’s just no telling what those idiots will come out with, the results are guaranteed to be chaotic.
UN human rights experts would nowadays, then, rather be seen dead than have their names associated with a preference for freedom of speech (or its rather more accurate equivalent, freedom of expression). Instead, the done thing is to refer to the existence of a ‘right to participate’. The idea here is that merely securing freedom of expression would not really capture all that needs to be done in order to make sure that everybody is able to express themselves freely, because sometimes people express themselves in such a way as to attack or drown-out others’ voices. Rather, what needs to happen is state-directed curation of ‘civic space’ so as to ensure that people are not ‘excluded from conversations relevant to them’ and everyone can ‘meaningfully participate in public affairs’.
This, it turns out, means something like the opposite of laissez-faire. It means ensuring that everyone can ‘[access] information from independent sources’ and ‘meet in participatory spaces that are enabling, inclusive, and safe’. It means ‘support[ing] efforts to combat discrimination with respect to participation in public affairs’ and ‘tackl[ing] practical issues including access for persons with disabilities and the marginalization of older persons as a result of technological change’. It also means ‘encourag[ing] innovative forms of participation, such as popular assemblies and citizens’ conventions’. And it includes ‘focus[ing] on youth and child participation’ so as to ‘ empower children and youth to engage meaningfully in public affairs’.
The picture of the role of the State that emerges is something like that of an enthusiastic secondary school teacher who holds well-organised class debates in which everybody gets a chance to speak. All are included, all are safe, and everything that is expressed is meaningful. And it is necessary for the State to cultivate this environment by overseeing and orchestrating this process, the reasoning goes, because without it people would end up being excluded or otherwise prevented from making their voices heard.
There is a veneer of neutrality or objectivity about the presentation of all of this. But, of course, all of the pupils in a school class debate generally know what the teacher really thinks, and what they really mustn’t say. And, sure enough, the whole concept of the ‘right to participate’ is really, for the most part, a sham. What is actually going on is not the neutral umpiring of a general debate, or the structuring of a civic space in which everybody can ‘meaningfully’ express themselves, but the careful and programmatic inculcation of an awareness of what is or is not permissible by way of ‘participation’ in ‘civic space’ in 2025.
The OHCHR’s Management Plan does its best to disguise this, but ultimately it cannot help itself revealing its priorities. One of these, for example, is the insistence that realising the right to participate means extending special protection to the views of what the Plan refers to as ‘human rights defenders’, which is UN code for human rights NGOs, ‘independent journalists, trade unionists, and environmental activists’. These groups come first and foremost in the realisation of the right to participate, and it is when they are faced with censorship, intrusions of privacy, disinformation and hate speech that the State must take special measures. This hardly, it goes without saying, suggests a neutral arena in which all views from across the political spectrum are given equal weight.
And there are no prizes for guessing the particular priorities which the Plan sets out in respect of what the ‘right to participate’ must look like when implemented in practice. ‘Anti-gender narratives’ must be ‘countered’, as must ‘discourses of fear and mistrust’; ‘new narratives’ must be fostered so as to ‘support equal, diverse and inclusive societies’; civil society must be mobilised in such a way that ‘groups at risk of marginalization’ can help to ‘identify problems caused by climate change’; and so on. In other words, in the actual shakedown, the creation of an enabling, inclusive and safe civic space in which all are able to meaningfully express themselves turns out to mean the careful curation of a hymn sheet from which all are permitted to participate in singing. One is free to meaningfully express oneself provided one’s meaning is not in any way fearful, mistrusting, or otherwise working orthogonally to what is ‘equal, diverse and inclusive’. And what is ‘equal, diverse and inclusive’ naturally is determined by those who are genuinely equipped to understand what those concepts really mean – that is, human rights experts.
The ‘right to participate’ is, in other words, a double-edged sword. It is contingent on how one wishes to participate and what one wishes to express. If one is willing to be ‘meaningful’, then one may participate to one’s heart’s content, especially if one is a member of a ‘group at risk of marginalisation’. But if one is being mistrustful or fearful or dishing out hate speech, misinformation, or anti-gender narratives, then one may not participate at all – because all that one is doing is trampling over the right to participation of those who deserve it. To bring the matter back to Kathleen Stock and good old Professors Roseneil and Green, it was Stock who was at fault, in this framing, for perpetuating mistrust and fear – and the OfS has no business encouraging her and those like her to ‘participate’ any further. Its priority, as an organ of the State, is to make sure that public spaces are ‘enabling, inclusive and safe’ – based on a particular conception of the views which it is most necessary to protect. (It follows that the students who were hounding Stock out of the university were of course doing the Lord’s work in policing the boundaries of an enabling, inclusive and safe space.)
Why did things take this particular turn? How did the transmogrification of freedom of expression into the ‘right to participate’ take place? Regular readers will not be surprised to find me referring back to Antony de Jasay at this juncture. De Jasay, long ago, made perfectly clear why it is that things should have developed this way in Western societies. The point is not difficult to grasp. A laissez-faire approach to civil rights, or what de Jasay called ‘freedom-as-immunity’, was always unstable in an environment of political hedonism, meaning one not characterised by pre-political commitments to underlying minimalist norms. Under conditions of political hedonism, the State’s only role is to make life better – to maximise utility. But since any human population is characterised by a wide heterogeneity of preferences that cannot be aggregated into a single utility function, what this means in practice, inevitably, is selecting which preferences to prioritise at the expense of others.
And freedom of expression is no different. Human beings are not ants; they have differing perspectives and views. And those differing perspectives and views are often at odds – one cannot, for example, reconcile a gender-critical feminist perspective with that of a trans-rights activist when it comes to matters of sex and gender. A State which grants to itself the role of maximising utility therefore finds itself in an impossible position with respect to these two individuals: it must in the end, in the words of de Jasay, ‘choose whom it had better please’ – who gets to express themselves and who doesn’t. And when this rationale is multiplied across all of the possible conflicting views and preferences in society with respect to all possible issues, the result is a State which must arrogate to itself the complete responsibility for picking and choosing which views and preferences are permitted into the public sphere and which are not, based on its own understanding of what is appropriate at any given moment.
That things should move in the direction of a ‘right to participate’ – with the civic space being increasingly carefully curated in the interests of some conception of how best to maximise utility – is therefore simply natural when there is no underlying rationale for the State’s existence beyond satisfying needs and wants. If it must satisfy needs and wants it must in practice select which to satisfy, and this implies managerialism, not freedom. The more genuine freedom that there is, the less certainty that will follow, and the weaker the State’s grasp on its role of utility-maximiser will become. This cannot be tolerated – and viewpoint neutrality, or laissez-faire, insofar as such concepts promote genuine freedom, must therefore be made to die.
That university leaders, the quintessential modern establishment insiders, should intuitively understand this is obvious. These are political animals who have risen to the pinnacle of higher education management by carefully reading the signs and listening to the mood music. The perspective of the ‘right to participate’ is thus one which they have gladly imbibed. That the OfS has been willing to try to tack to another direction is welcome. But in the long-term one suspects that erring on the side of freedom of expression can only last, and expand, when the idea that the State’s role is merely to maximise utility is abandoned, and a pre-political commitment to the ideal of free speech as an emanation of individual autonomy and agency is re-embraced. How, and whether, this happens, though, is anyone’s guess.
This article (A Lesson in Authoritarianism) was created and published by News From Uncibal and is republished here under “Fair Use”
Featured image: imgur.com
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