In its online guide to freedom of speech the University of Birmingham states:
Speech can and should be limited if it is thought to… cause a person… distress.
The guide aims to provide “practical advice” to staff and students at the University of Birmingham to help them “protect free speech”. The full passage from the guide is as follows:
When should freedom of speech be limited?
We have a legal duty to protect free speech. However, speech can and should be limited if it is thought to:
- Cause fear or provocation of violence
- Stir up hatred on grounds of race, religion or sexual orientation
- Express extremist views that risk drawing people into terrorism or are shared by terrorist groups, or encourage terrorism-related offences
- Cause a person harassment, alarm, or distress
- Breach criminal law or charity law
The passage refers to offences under the Public Order Act (1986). Speech that constitutes an offence under this act can be restricted. However, CAF has received legal advice that the guide misstates the law so as to make it more restrictive than it in fact is. Speech that merely causes distress is not unlawful, and cannot be restricted. To justify restricting distressing speech two further conditions must be satisfied:
- The speech must be “threatening or abusive”. Speech that is merely offensive or insulting does not qualify as threatening or abusive.
- The speech must be unreasonable.
These two conditions ensure that the permissibility of speech does not depend simply on its effects on its recipient. By omitting these conditions, the University of Birmingham implies that speech can be restricted simply because of its effects on its recipient. The effect is that the permissibility of speech is relativised and made dependent on individual sensitivities.
This is a fundamental difference between the law and the University of Birmingham’s presentation of it. The guide does not merely simplify for ease of presentation. It misstates, with the effect of claiming that the law is far more restrictive than it in fact is.
By hosting this description on its website, the University of Birmingham misleads its staff and students, and fosters a culture hostile to full freedom of speech within the law. It ought to correct its description, and notify staff and students.