The Bill on Freedom of Speech is not about freedom of speech. It is not about academic freedom either. It might still be needed.

The Bill on Higher Education (Freedom of Speech) is expected to be adopted soon. Despite thorough legislative travail and extensive public discussion a lot remains unclear about the Bill. Can analysing the situation in an international comparative perspective help to understand what is happening and contribute to a way forward? 

There is not much agreement about important questions regarding the Bill. Is it needed? Will its current provisions allow to achieve what the legislator genuinely strives to achieve? If adopted, would it even be possible to implement the Bill? 

A key question is “what is the Bill about?”

Reading the draft, with the broader public debate in mind and looking at similar situations in the world, one could observe that despite its name, which includes “Freedom of Speech”, and repeated assertions in the body of the draft that it is intended to protect academic freedom (“of the academic staff” alone, implicitly excluding students and professional staff), the Bill is not about freedom of speech in general and it is not about academic freedom either. The Bill is about freedom of speech on campus. Claiming to be about something else, about academic freedom, in particular, can be confusing, even dangerous.

This can be corrected. We in the UK are not alone in the confusion. The last 20-25 years have marked the emergence of a crisis of academic freedom, including in the West. In part, this is an intellectual crisis. In Europe, academic freedom had been taken for granted for too long and, at present, we lack a conceptual reference for it that is up to date, shared and effective. That leads to difficulties of codification, monitoring and practice. Many excellent references exist, including in the national or international legislation. They don’t work well.

When Wilhelm von Humboldt set forth his highly consequential understanding of academic freedom at the beginning of the nineteenth century, the focus was on the relationship between the emerging nation state and the university. Today, two centuries later, the state is not the only key parameter in the equation. We struggle to understand and protect academic freedom for lack of a clear and effective conceptualisation that accounts for the international and supranational dimensions of higher education. Besides, academic freedom is also threatened by sub-state and non-state actors, including from within the university itself.

The UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel (1997) proposed a new understanding for academic freedom, to be applied everywhere. It was ratified by many countries. Only very few people – academics, students, university administrators or public authorities- have ever heard about it, anywhere. This is often considered a good recent conceptualisation of academic freedom. The problem is that it is not effective – it doesn’t work.

The EU Commission referred Hungary to the European Court of Justice in 2017 for infringement of academic freedom. In its ruling, the Court made recourse to commercial legislation, for lack of sufficient, effective, and shared European legal references about academic freedom itself. The ECJ ruled that, in part, Hungary has infringed upon the right of Central European University to establish and deliver commercial services, rather than education and research. 

So what is academic freedom, and how should it be conceptualized and regulated today to avoid confusion? Is it a human right? For sure, if we think of the repression in higher education in Myanmar, for example. A human rights approach, however, doesn’t apply to what could otherwise be easily accepted as academic freedom disputes, for example between a dean and an individual academic regarding the use of a particular research paradigm in the respective faculty. Is academic freedom a value, thus not something that can be easily legislated upon and must be subject to considerations of cultural diversity and differences?

Is academic freedom the same as freedom of speech? 

If that was the case, should we understand and protect higher education and science only as discourse and not as complex situated social practices that are more than just about communication and free expression?

To whom does academic freedom apply? To academics only? Students as well? Possibly to professional staff and higher education administrators too? 

Efforts to address the crisis are under way in several countries and regions, influenced by particular national, regional and broader geopolitical contexts. In Europe, 49 countries (the UK included) adopted in 2020 a common reference, which frames academic freedom as a fundamental value of higher education and a precondition for the production, transmission, dissemination and use of knowledge as a public good. Why ”value” and not a human right or fundamental right? It was a successful tactical approach to avoiding arcane, maybe impossible continental-wide legislative routes. 

Adding to the crisis, there is the tendency to misconstrue academic freedom as freedom of speech alone. The UK has gone the furthest in this regard, having chosen to codify academic freedom as freedom of speech through special legislation. That is what the Bill does, even though unintentionally. 

A democratic government has not only the right but also the obligation to protect academic freedom and freedom of speech when they are threatened, including through legislation. This Bill, however, risks to perpetuate the confusion between academic freedom and freedom of speech, the broader intellectual and regulatory confusion around academic freedom, thus the crisis of academic freedom, with potentially ruinous consequences. 

If the Bill is really about freedom of speech on campus, why not state this explicitly, justify it clearly in the text of the law itself, and calibrate the ensuing provisions accordingly? This would also simplify implementation and jurisprudence later on, and avoid aggravating the crisis of academic freedom.

Liviu Matei, Head of the School of Education, Communication and Society at King’s College London, member of the Governing Council of Magna Charta Universitatum Observatory, and founder of the Global Observatory on Academic Freedom.

The opinions expressed by the author of this blog are his own and do not engage any of the organisations he is affiliated with.