The Thinkery and the Academy: Examining the Legal Parameters and Interactions of Academic Freedom and Freedom of Expression Under English Law Purchased

This paper examines how the right to free expression and academic freedom interact under English and international law, discusses how those two rights have traditionally been thought to interact, and considers how they can be brought together with the concept of academic free expression. In doing so, the article examines the legal parameters and key characteristics of academic free expression, namely: what is the protection afforded to it; what are its ‘qualifying criteria’; what are its limits and how might the protection afforded to it be lost; and, where might such protection not be lost as compared to the general right to free expression. To end, the article discusses why this all matters with reference to recent high-profile disputes over academic freedom, and examines how these issues interact with other UK laws, in particular, the upcoming Higher Education (Freedom of Speech) Bill.

This paper will explore why the developing corpus international and English law on academic freedom at times imposes rigorous requirements upon expression which seeks the heightened legal protections afforded to such freedom, and what those requirements are. To do so, I want to start with a journey back to Ancient Athens. You may think we’re about to visit the illustrious academy of Plato and Aristotle, birthplace of modern academia, but no. Instead, we open the doors to the Thinkery of Socrates, as imagined by Aristophanes. Here it is described in the words of one of its students, Strepsiades:

That’s the Thinkery—for clever minds.

In there live men who argue and persuade…

If someone gives them cash, they’ll teach him

how to win an argument on any cause,

just or unjust.^[1]

Or, in more prosaic terms, the Thinkery is the mocking characterisation of a school run by Aristophanes’ imagined Socrates, which educates its students in the art of sophistry and pseudoscientific thinking—for instance, consider the new measurement of distance designed with the creation of small wax booties for fleas. At the Thinkery, Strepsiades’ wayward and gambling addict son, Pheidippides learns the way of Wrong—the personification of the weaker argument which nevertheless defeats the side of Right and justice—and overcomes his legitimate creditors in argument. In other words, the Thinkery teaches one to speak and speak well, but with the ultimate goal of victory in mind rather than truth or justice.

Why though, you may ask, do we sully ourselves with a visit to this satirical corruption of the academy? Because I want to explore one of, perhaps, the most important and distinguishing characteristics of the academy: academic freedom. In particular, I will examine the relationship between the right to freedom of expression and academic freedom: where they differ and where they overlap. Ultimately, I want to consider the question: would the free expression of the Thinkery’s Socrates qualify for the protection of academic freedom?

1. What Is Academic Freedom and How Does It Differ from Freedom of Expression?

Before we can answer that question and (more generally) interrogate the questions of why rigorous requirements are placed on academic freedom and what those might be, we need to start with some definitions. Academic freedom is a concept for which there is almost universal acceptance of its importance, but one for which there is no straightforward and universally accepted definition. As such, we start with the question what is academic freedom and how is it distinct from freedom of expression generally?

In my view, the clearest and most comprehensive definition of academic freedom appears in the UNESCO (1997) Recommendation on the Status of Higher Education Teaching Personnel. I will consider this in much more detail later, but the crispest summary of the key principles is given by Professor Terence Karran (et al.) (2021)^[2]:

The substantive elements are freedom to teach and research. [Freedom to teach] normally includes freedom to determine: what shall be taught (curriculum); how it shall be taught (pedagogy); who shall teach (via transparent selection procedures); whom shall be taught (the right to determine entry standards); how students’ progress is evaluated (assessment methods); and whether students’ progress (via marking criteria and grade determination). Freedom to research normally includes the determination of: what shall be researched; the research method; the purpose of the research (and the refusal to undertake unethical research); the decision to publish (or not), the avenues and modes (conference presentations, journal articles) of disseminating research findings.

Karran also explains that these substantive principles are upheld by three supportive elements, namely: self-governance (which includes voicing opinions on and being involved in the governance of the university); tenure; and, autonomy, both institutional and individual, i.e. the collective right to be free from external interference and the individual right to be free from inappropriate internal interference.^[3] From this definition, we can pick out elements, for example, disseminating research findings, which inherently demand a right to free expression.

The precise parameters of that right are something which I will explore. Though, to be clear before moving on, I consider the individual right to academic freedom is more important than the institutional right to academic freedom: both because of the other (e.g. business) priorities and marketisation^[4] of the institution^[5] may undermine the purpose of academic freedom and because individual academic freedom is to be properly conceptualised as a human right. In my view, the conception of academic freedom (of expression) as an individual right is significant particularly in the current climate because of live disputes between academics and their university employers: consider, for example, the case of Professor Jo Phoenix and her former employer, the Open University.^[6]

For now, let us consider the right to free expression more generally. As so much has been written about freedom of expression as a general right,^[7] I don’t propose to offer a detailed definition. However, for the purposes of comparing it to academic freedom, I do want to offer a few thoughts on the breadth of the freedom.

To do so, perhaps one of the best places to start is the classical justification for free expression as set out famously by John Stuart Mill in his essay On Liberty. He says:

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

Mill thinks there is value in refuting all falsehoods irrespective of their inherent worth and so, subject to his harm principle, it follows that such expression should be protected even if it is intemperate, offensive and passes the bounds of ‘fair discussion’. He goes on to say that it would be rarely possible for the law to interfere with ‘controversial misconduct’, of which the gravest form is to ‘argue sophistically, to suppress facts of arguments, to misstate the elements of the case, or misrepresent the opposite opinion’. In other words, the protection for free expression is very wide-ranging for Mill and we can conclude that even Aristophanes’ Socrates and his sophistic rhetoric fall within the ambit of its protection.

The formulation of the right which is most familiar to a European audience is that in Article 10 of the European Convention,^[8] effectively incorporated into English law by the interpretive obligations of the Human Rights Act 1998.^[9] As is well known, this freedom is wide-ranging in its modes (covering, e.g. painting,^[10] protest,^[11] production of plays,^[12] etc.), character (covering, e.g. artistic, political, journalistic expression,^[13] etc.) and scope. On that latter point, the freedom extends not just to inoffensive ideas, but those which offend, shock or disturb^[14].

Subject to certain absolute limitations (e.g. importantly, holocaust denial^[15]) and strictly construed restrictions prescribed by law as provided for under Article 10(2),^[16] this is a wide-ranging right with no stringent entry qualifications for the freedom to be engaged.

2. What Are the Differences Between Free Expression and Academic Freedom?

Having looked at definitions of both concepts, let’s now consider the key differences. The classic distinction between academic freedom and free expression generally has been neatly framed in this way:

We should think of campuses as having two different zones of free expression: a professional zone, which protects the expression of ideas but imposes an obligation of responsible discourse and responsible conduct in formal education and scholarly settings; and a larger free speech zone… where the only restrictions are those of society at large. Members of the campus community may say things in the free speech zones that they would not be allowed to say in the core educational and research environment.^[17]

The key underpinning for this distinction could be summarised as the fact that, ‘at the most fundamental level…the only operational goal of academic work should be to produce and disseminate knowledge and understanding’.^[18]

Simpson (2020)^[19] goes much further and argues that academic freedom, because it drives towards intellectual rigour, should be more restricted: ‘Content-based restrictions on speech, which are anathema to a free speech ethic, are thus an integral part of serious academic practice’. In describing what’content-based restrictions’ are, he refers to the work of Robert Post and refers to the relevant disciplinary standards and, generally, to academic standards, intellectual rigour and coherence.^[20]

For Simpson, this is the key difference: free speech is essentially entitled to protection irrespective of whether the ideas are ‘bad, wrong, offensive or false’ whereas academic freedom is much more rigorous and subject to scrutiny and approval by other academics. He says of academic freedom: ‘people’s speech will routinely be suppressed, because of substantive evaluations of its content by the domain-relevant authorities—evaluations which ignore any free speech-based aspiration to content neutrality’.

A stronger distinction between academic and free expression is made by Scott (2022).^[21] She disputes that academic freedom, unlike the freedom of expression, is a human right, because it is a collective right applying to members of the academic community built upon shared responsibility (i.e. it does not apply to everyone) which aims towards critical knowledge production. She views academic freedom as a ‘licence granted to scholars to pursue research and teaching without external interference from the likes of politicians, philanthropists and administrators’, which helps mediate between the state’s desire to maintain its own authority (frequently under challenge by academics) and its desire to further the public good advanced by academics.

However, she distinguishes this from a free flow of expression in that there are restraints unique to academic freedom and the collective knowledge production that it serves to protect. She quotes Sitze (2017),^[22] who strongly opposes the concept of the marketplace of ideas on campus, when he says, ‘free inquiry in academia is predicated on voluntarily assumed forms of unfreedom that are unique to the academy’. By ‘unfreedom’ Sitze means ‘the voluntary assumption of limits on the sayable and the thinkable, limits that entail distinctions of true and false’ which are ‘the precondition for…discovery.’ An example that Sitze gives is that the astronomer who claims the moon is made of green cheese^[23] and explains that, if this restraint were not applied, the discovery of new knowledge would not be possible. Or, as he puts it, some falsehoods do not contribute to the pursuit of truth and so should not be protected by academic freedom: the pursuit of truth can and should be distinguished from the unfettered exchange of opinions.^[24]

Scott further argues that to consider academic freedom a human right would actually remove the obligations to think critically on which it relies and to individualise the right would be to minimise its distinctive nature and the ‘specific ethical and procedural responsibilities upon which it depends’. As I will go on to discuss, my view is that Scott goes too far in drawing this distinction between academic freedom and free expression and, in fact, it is possible to conceive of academic freedom as an individual right, indeed an individual human right, and nevertheless retain the key qualities of academic discourse.

3. Academic Free Expression

With that in mind, I want to explore this distinction between free expression and academic freedom and examine how the law might bring these two together more closely with the concept of academic free expression. I will discuss what the law says about the parameters of academic free expression—in particular how its protections are gained and how they might be lost. Overall, I will explain why I conceptualise academic freedom as a specialist, hybrid kind of human right which incorporates key characteristics of a professional freedom.

As far as the constitutional and legislative protection for academic freedom is concerned in the UK, Karran (2007)^[25] in an in-depth comparative study concluded that the UK was the sick man of Europe. He^[26] (2021) summarises the English law position thus:

In sum, it is clear that the level of legal protection for academic freedom in the UK is deficient with respect to constitutional protection (either directly, or indirectly via freedom of speech) when compared to other EU states.

Furthermore, the [Higher Education and Research] Act [2017], which ostensibly offers legal protection to UK academics, is less detailed than that in other EU nations, does not appear to include teaching, and indicates that the academic freedom of individual academics is derived from institutional autonomy, and hence limited to the context of individual academics’ relationships with their employing institutions. Given that UK academics have no job security, it is difficult to see what freedoms, if any, this deficient legal framework offers them in practice.^[27]

While this summation of the English law is correct as far as it goes, it does not give sufficient consideration to the impact of the Human Rights Act 1998 (the ‘Human Rights Act’) and the incorporation of relevant Strasbourg jurisprudence. By virtue of that Act, courts and tribunals must take into account such case law when determining a question which has arisen in connection with a Convention right, including Article 10,^[28] and any UK legislation must be read and given effect to by the courts in such a way that, so far as it is possible to do, is compatible with the Convention rights.^[29] Furthermore, it is unlawful for courts or public authorities, which includes universities, to act in a way which is incompatible with any Convention right.^[30]

This omission is significant because of the particularly enhanced level of protection which is afforded to academic free expression by the Strasbourg case law.

4. What Are the Key Characteristics which Distinguish AFE from Free Expression Generally?

In short, the answer to this question is that academic free expression is, under international law, a specialist subset of the more general Article 10 right to free expression. It is particularly characterised by the more rigorous intellectual requirements demanded of it and the heightened level of legal protection that it accordingly enjoys.

The case of Sorguc v. Turkey^[31] is a good starting point for our consideration of the character of academic free expression. This 2009 case concerned a construction professor who criticised the appointment of assistant professors and was successfully sued for defamation by one such assistant. It was relevant here that the impugned statements were made through the distribution of a paper at a scientific conference. The Strasbourg court found that this was a violation of the Professor’s right to what it termed ‘academic freedom of expression’, a concept that it recognised as flowing from his wider right to academic freedom generally.^[32] Although his comments were essentially value judgments, they were made on an issue of public importance, namely the assessment of the appointment and promotion system in universities. The court recognised that an academic value judgment is not necessarily susceptible to strict proof and doesn’t require it, provided there is a factual basis from which it flows.

In a comment which neatly sets the stage for our discussion, the court said that it ‘underlines the importance of academic freedom, which comprises the academics’ freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction’.^[33]

To summarise other key case law, the overriding characteristic of academic free expression is one of a supercharged Article 10 protection.^[34] The Strasbourg court has said, once activated, it deserves ‘the highest level of protection under Article 10’^[35] and that ‘any restrictions on the freedom of academics to carry out research and to publish their findings’ must be submitted to ‘careful scrutiny’ and ‘the need for any restrictions must therefore be established convincingly’.^[36] Indeed, in the 2022 case of Torres v. Spain,^[37] even a censure without actual sanction was too much of a fetter on academic free expression to be tolerated by the Strasbourg court.

This means that its protection is stronger than non-academic expression which is also protected under Article 10 and this can be clearly seen when it interacts with the Article 8 right to privacy of another.^[38] On that, the Strasbourg court has said: ‘[with other things being equal] the presence or absence of an “academic element” in an impugned comment or utterance may be decisive in finding whether a particular “speech” which otherwise would constitute an unlawful infringement of personal rights is protected under Article 10’.^[39]

Overall, therefore, academic free expression is at the pinnacle of Article 10 protection and it will be very difficult to show that restrictions under Article 10(2) are justified as ‘however minimal the sanction’, it was liable to have an impact on his right to free expression and have a ‘chilling effect in that regard’.^[40] But the question arises, how does expression qualify for such protection?

5. What Are the Minimum Qualifying Criteria for AFE?

To answer that, I think it is helpful to break down academic expression very broadly and roughly into two categories: core academic expression, covering the central academic work such as books, research papers, etc.; and, ancillary academic expression, which covers extramural expression, dissemination of core academic expression and other expression flowing from core academic expression or otherwise from the academic’s professional competence and/or expertise as an academic. I don’t intend these categories to be overly rigged or even necessarily all-encompassing, but I think they are very useful as a lens through which to consider the way Strasbourg has dealt with academic free expression and for making sense of the qualifying criteria it has described in two of its leading judgments.

With respect to core academic expression, I want to consider the case of Aksu v. Turkey^[41] and its discussion of scholarly standards which allowed the impugned expression in question in that case, a book on the Roma, to be entitled to protection as academic free expression. In that case, Mr Aksu, a gentleman of Roma origin, complained about the book, ‘The Gypsies of Turkey’, which was published by the Turkish Government and authored by an academic. He said the book breached his Article 8 right to privacy^[42] because it contained offensive remarks about his Roma identity and perpetuated negative stereotypes about the community. The Grand Chamber of the Strasbourg court ultimately dismissed Mr Aksu’s case and found that the local courts had struck the right balance between the interests of Mr Aksu and the Roma community and the academic’s Article 10 rights.

In so doing, it emphasised that the local courts put significant weight on a report prepared by seven university professors which concluded that the book was an academic study based on scientific research and themselves noted that it was based on scientific data. In addition to that, the Grand Chamber noted that impugned passages must be considered within the context of the academic work as a whole and recognised that the method of research used by the academic was important in granting an impugned passage protection. In this case, the academic author had collected information from members of the Roma community, the local authorities, and the police and had observed their lifestyle ‘according to scientific observation principles’.^[43] With that in mind, the court concluded that it must ‘submit to careful scrutiny any restrictions on the freedom of academics to carry out research and to publish their findings’.^[44] Overall, what we see in the Aksu case, is the Strasbourg court validating a rigorous research methodology in an academic book as the basis for activating the enhanced protection for academic free expression.

With respect to ancillary academic expression, we have already seen from the case of Sorguc that academic value judgments outside of core academic expression are protected under the aegis of academic free expression. This protection is explored in greater depth by the court in the case of Erdogan v. Turkey.^[45] In this case, Erdogan was a professor of constitutional law at a University in Ankara. He published an article in a quasi-academic quarterly which was highly critical of the judges of Turkey’s constitutional court in a decision to dissolve a political party. The judges each then successfully brought defamation claims against him.

In weighing up the proportionality of this interference with Professor Erdogan’s Article 10 rights, the court underlined the importance of academic freedom and academic works, holding that: ‘academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction’.^[46] This principle meant it had to submit the restriction to particularly careful scrutiny. Importantly, the court also recognised that the protection for academic free expression would apply not just to academic or scientific research (i.e. core academic expression as in Aksu) but also to ‘views or opinions, even if controversial or unpopular in the areas of their research, professional expertise and competence’.^[47] In other words, extramural speech^[48] which flows from their research and/or professional expertise and/or competence would be entitled to the same type of protection as core academic expression. In Professor Erdogan’s case, even though his comments were harsh and offensive value judgments, they had sufficient basis in fact and sufficient connection to his academic expertise to be protected.^[49] The court also interestingly took note of the fact they appeared in a quasi-academic quarterly as opposed to a popular newspaper, though it doesn’t press this point too hard.^[50] Indeed, the judgment’s concurring opinion goes further and says the place of publication will not be a decisive factor.^[51]

In addition to the findings of the main judgment, three of the judges in the Erdogan case also produced a helpful concurring opinion which seeks to draw out some general principles for consideration in cases of academic free expression, in particular with respect to extramural speech, which includes addresses to the general public. It notes the special status of academic free expression, as compared to other types of freedom of expression. The typical justification of the needs of a democratic society is not sufficient. Instead, because of the hugely significant import of academic expression, the court needs to take into account ‘the need to communicate ideas, which is protected for the sake of the advancement of learning knowledge and science’.^[52] Again, the court here is emphasising the special character of academic freedom, as realised in Article 10 of the Convention under the guise of academic free expression. It highlights, with reference to Professor Erdogan’s case, how extramural academic discourse, flowing from their research and professional expertise and competence, serves the public interest and is crucial to guaranteeing democracy. Such speech deserves ‘the highest level of protection under Article 10’ and the presence of an ‘academic element’ will usually be decisive in determining whether impugned speech is protected under Article 10.^[53]

The concurring judgment then goes on to set out a test for determining whether extramural speech (in my terms, ancillary academic speech) has a sufficient ‘academic element’ to merit the ‘utmost protection’ under Article 10.^[54] According to that test, it is necessary to establish:

1. whether the individual concerned can be considered an academic; and
2. whether the contested expression falls within the areas of their research; and/or^[55]
3. whether such contested expression falls within their professional expertise and competence.

In short, because Professor Erdogan’s words, even though they were offensive value judgments, were ‘part of an explanatory opinion based on the scholarly analysis conducted by a professional academic in the field of constitutional law’^[56] they had an academic element and were entitled to protection. We can see therefore that ancillary academic expression—in the words of the court ‘informed opinions’ and not ‘factually correct…research-and-facts-related’ statements are integral parts of the professional freedom needed for academics to play their role in informing the public and guaranteeing democracy^[57] (in that the right to free expression allows citizens to, among other things, question the legitimacy of governments and, further academic free expression allows them to do so in a competent and informed way.^[58]

The notion that academic freedom can be considered to have characteristics of a professional freedom is supported by Eric Barendt.^[59],[60] He views the process of peer review as an exercise in ensuring that the work in question meets the required ‘professional standards of accuracy and coherence’. He compares it to the professional freedoms, and the attendant responsibilities and standards, of doctors and lawyers and goes as far to say that academic freedom is ‘a professional freedom than a set of individual rights’. In saying that, I think he is right that academic freedom is a kind of professional freedom, in that it is limited to a certain class of people and carries with it minimum standards broadly moderated by that class as a whole, but he is wrong to suggest that this means it cannot also be an individual right. I think that is clearly contradicted by the way in which Strasbourg approaches the concept of academic free expression.

This is further supported by how the concept of academic freedom has been conceptualised in the 1997 UNESCO recommendation of the status of higher education teaching personnel,^[61],[62] the purpose of which was to describe the parameters of academic freedom and to recognise its importance to ‘the development of humanity and modern society’.^[63]

The Recommendation is expansive in its description of the individual rights and freedoms which academics should enjoy to properly perform their roles.^[64] It summarises the right to academic freedom as follows:

the right, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative bodies.

However, these rights are carefully circumscribed with a long and detailed list of the attendant duties and responsibilities^[65]. By way of example, the Recommendation cites the need for them to ‘base their research and scholarship on an honest search for knowledge with due respect for evidence, impartial reasoning and honesty in reporting’^[66] and talks of the need for them to be ‘conscious of a responsibility, when speaking or writing outside scholarly channels on matters which are not related to their professional expertise, to avoid misleading the public on the nature of their professional expertise’.^[67]

Overall, what the Recommendation gives us is probably the most comprehensive overview in an international instrument of the nature of the rights of individual academics to academic freedom, alongside a detailed consideration of the duties and responsibilities which sit alongside such rights, conceived through the prism of professionalism. My view is that this is entirely consistent with the way in which Strasbourg has considered academic free expression.

6. Academics as ‘Public Watchdogs’ and Parallels with Journalism

By way of further support for the contention that professionalism is a useful prism through which to conceive the international law conception of academic free expression, on top of the cases referred to above, I think a useful analogy can be drawn to the more established body of Strasbourg case law on the rights and responsibilities of journalistic free expression and academic free expression.

By way of a brief summary of the Article 10 case law on journalism, Strasbourg has acknowledged the press plays a vital role as ‘public watchdog’^[68] and has a pre-eminent role in a state governed by the rule of law. However, the enhanced rights to free expression which journalists enjoy are not unlimited.^[69] The press must ‘not overstep certain bounds…its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest…Indeed, the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism.’

But what are the tenets of responsible journalism? Strasbourg gives us some further assistance. It has said journalistic free expression is ‘subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism’.^[70] Those principles will obviously be applied in a fact-sensitive way by the courts and we need not overly concern ourselves with the precise specifics of what the ethics of journalism might demand as we are interested in whether the Strasbourg courts might apply a similar set of responsibilities on academic free expression in future cases.

My answer is that I think they would. We have already seen that Strasbourg has done this to a significant extent in the case law we have which explicitly addresses academic free expression. In addition to that the court has said, in respect of the proviso I’ve just described, ‘the same principle must apply to others who engage in public debate’^[71] and, furthermore, it has indicated that it considers academics to share journalists’ role as a public watchdog.^[72] In future cases, I think it would be reasonable to infer that Strasbourg would adopt further general principles to underpin the minimum responsibilities for academic free expression, namely that it must be, borrowing from UNESCO’s 1997 Recommendation^[73] ‘in accordance with their professional responsibility and subject to nationally and internationally recognized professional principles of intellectual rigour, scientific inquiry and research ethics’.

What though, for the time being, might we say further about the outer limits of academic free expression and where its enhanced Article 10 speech right might be lost?

7. The Limits of AFE and Where It Might Be Lost

Returning again to the decision of the Grand Chamber in Aksu v. Turkey, we find a good example of where the court may draw a line. It was relevant to the decision of the majority of the Grand Chamber panel that the book did not make blanket, negative statements about all Romas. However, we should also consider the opinion of the dissenting judge in that case. It was her view that the book in question was perpetuating negative stereotypes of Roma and stated that ‘the fact that the book had been written by an academic and therefore to be considered as an academic work is neither a justification nor an excuse for insulting ethnic dignity’.^[74] To support that contention, she referred to Article 2 of a 1978 UNSECO declaration,^[75] which states ‘any theory which involves the claim that racial or ethnic groups are inherently superior or inferior…or which bases value judgments on racial differentiation, has no scientific foundation and is contrary to the moral and ethical principles of humanity’.

On the facts, the majority did not agree with her assessment that this is what the academic’s book was doing with respect to the Romas. However, it seems likely that, had the book strayed into intentionally denigrating an entire racial group, the court would have afforded it little or no protection under Article 10. As such, it seems likely that little protection would be afforded to expression, even if it comes from an academic, which includes expounding theories which involve the claim that racial or ethnic groups are inherently superior or inferior, or which bases value judgments on racial differentiation, has no scientific foundation and is contrary to the moral and ethical principles of humanity. I think this is entirely consistent with the rest of the Strasbourg case law on academic free expression—note again the key qualifier that the expression must be without a scientific foundation.

More generally, note that Article 17^[76] of the Convention prevents the use of Convention rights to abolish or limit the rights of others guaranteed by the Convention. In practice this means that certain speech is considered beyond the pale by the ECtHR and worthy of no protection by the Convention and accordingly no protection as academic free expression irrespective of their origin—holocaust denial is a core example of this.^[77]

8. What Are Not Necessarily Limits to AFE

Having looked at the limits of AFE and where it might be lost, let us turn to some instances in which one might expect—or, in the case of a University as an employer, hope the protection might be lost. In this regard, we can also examine more closely the grounds upon which a University may look to restrict an academic’s expression under Article 10(2) of the Convention,^[78], which will most often involve an attempt to show that such restriction is proportionate to the aim of protecting the reputation or rights of itself or others.

The first such instance which I want to consider is where the expression in question damages, or has the potential to damage, the reputation of the institution with which the individual in question is affiliated and to which they owe a duty of loyalty as an employee. This is important as reputational damage to the institution is a commonly relied upon the ground for disciplining academics whose expression has been impugned. In this regard, consider the case of Kharlamov v. Russia,^[79] which concerned a tenured professor in the physics department of the Orel State Technical University. The president of the University organised an internal conference for the election of its academic senate. As he had not been consulted about this conference, Professor Kharlamov attacked its legitimacy and accused the University of breaching his employment rights. In response, the University accused him of undermining the professional reputation of the University and sued him for defamation. The local courts found against the Professor and he referred the matter to Strasbourg, which ultimately found that there had been a breach of his Article 10 rights to academic free expression.

In doing so, the court made some illuminating comments about the nature of academic free expression where the expression of an academic employee is alleged to have damaged the institution’s reputation. The court began its analysis by explicitly recognising that employees owe ‘a duty of loyalty, reserve and discretion …, and that in striking a fair balance the limits of the right to freedom of expression and the reciprocal rights and obligations specific to the professional environment must be taken into account’.^[80] However, the court recognised the academic context in which this expression occurred was vital and said: ‘The principle of open discussion of issues of professional interest must thus be construed as an element of a broader concept of academic autonomy which encompasses the academics’ freedom to express their opinion about the institution or system in which they work’.^[81]

In finding in favour of Professor Kharlamov, despite his obligations to the University as its employee, the court put particular emphasis on the failure of the domestic courts to give weight to the fact that this was academic free expression and, in a comment which should cause all University administrators to pause for reflections, said ‘the “dignity” of an institution cannot be equated to that of human beings. The Court considers that the protection of the University’s authority is a mere institutional interest of the University, that is, a consideration not necessarily of the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10(2)’.^[82]

Overall, we can draw three key principles from this case: (1) an academic criticising their institution—in this case, the internal democracy of university governance—will squarely fall within the enhanced protection for academic free expression^[83]; (2) it will be very difficult for a University to rely upon its own institutional reputation as grounds to lawfully interfere with academic free expression; and (3) an academic employee’s duty of loyalty to its institutional employer will similarly be a difficult ground on which to rely for a University seeking to establish that it has lawfully interfered with such expression.

On that third point, we can take some further guidance from the case of Wojtas-Kaleta v. Poland.^[84] By way of summary, the journalist in this case publicly criticised her employer, a Polish public television company. In response, she was reprimanded by her employer on the basis that she had breached a specific written obligation on her to protect her employer’s good name. The Polish courts found that this reprimand was legitimate as she had failed to observe the obligation of loyalty imposed on her as an employee. The Strasbourg court disagreed with this conclusion and found that there had been an interference with her Article 10 right to free expression.

Again the court began its analysis with a recognition that employees owe duties of discretion and loyalty to their employer, however, it remarked ‘having regard to the role played by journalists in society and to their responsibilities to contribute to and encourage public debate, [the court] considers that the obligation of discretion and constraint cannot be said to apply with equal force to journalists, given that it is in the nature of their functions to impart information and ideas’.^[85] Furthermore, it also re-iterated its position that ‘there is little scope under Article 10(2) of the Convention for restrictions on debate on questions of public interest’.^[86]

As discussed earlier there is a helpful parallel to be drawn between journalists and academics, particularly as regards their role as public watchdogs. As was made clear by the court in the case of Erdogan in particular, a key function of academic expression is to contribute to and encourage public debate, as well as imparting information and ideas. In this respect, there is little to distinguish academics and journalists—though, indeed, one might go further and say that there is greater scope for academics to express themselves in that way on matters which disturb the status quo and challenge received wisdom.^[87]

Overall, I think what we can take from Wojtas-Kaleta is further confirmation of the third lesson from the Kharmalov case, namely that even an express written obligation not to bring one’s employer into disrepute will be a difficult ground for an institutional employer to rely upon if seeking a justification for interference with academic free expression.

9. Why Does This Matter?

Why does this all matter? It matters because more and more we are seeing intense disputes on our campuses over issues of academic freedom and academic free expression. This has prompted the Government to legislate in the form of the Higher Education (Freedom of Speech) Bill. I will return to that later, but now I want to consider two recent and highly emotive cases: those of David Miller and Kathleen Stock. The facts of both cases will be well known to those interested in academic freedom, so I will rehearse them only briefly here.

David Miller, formerly employed by the University of Bristol, was dismissed having been accused of anti-Semitism, promoting anti-Semitic conspiracy theories, inciting hatred against Jewish students by claiming the Bristol Jewish Society was part of a Zionist movement and by making negative comments about the state of Israel.^[88] This incident received extensive coverage in the national media.^[89] Naturally, his supporters claimed that his dismissal was a breach of his right to academic freedom.

Kathleen Stock was formerly employed by the University of Sussex and was forced to resign after being subject to an intense campaign of bullying and harassment by her critics, who claimed that she was guilty of transphobia. Again, this incident received extensive coverage in the national media^[90] and was even debated in Parliament.^[91]

I highlight these cases because they work very well as a pair to illustrate the principles of academic free expression which I have discussed. I am prompted to address these two incidents, in particular, by the work of Professor Anthony Julius (2022).^[92]

He has written, very convincingly in my view, that ‘while both Miller and Stock can claim the benefit of political free speech, only Stock can claim the benefit of academic free speech’. He comes to that conclusion by examining the liberal doctrine of free speech and identifying two central qualities: the system principle and the emancipation principle.

The former separates out different forms of speech (academic from political, artistic, legal, etc.), populates it with actors and institutions, and then develops its own peculiar standards for regulation. What I have been discussing so far is a good example of this system principle in operation with respect to the distinctiveness and regulation of academic free expression. Julius encapsulates this well when he says: ‘it has standards…it is severe in its judgments. Among its requirements: objectivity, rigour, integrity…’dumb courses’ devised and taught by academics are not protected by the liberal academic free speech doctrine’. He is clear as well that academic free speech must be distinguished from political free speech.

The emancipation principle, Julius identifies, is the ‘combative edge’ of the liberal doctrine and acts to combat ‘counter-discourses…ways of thinking and speaking, that in their irrationality are damaging to liberal societies’. With respect to academic free speech, the edge is turned against the pseudosciences: creationism, astrology, alchemy, etc., and it entails a positive obligation to exclude these from the academy in the name of academic integrity.

Turning to the controversies, Professor Julius’ view of Stock’s most recent book was that it is a serious work of a serious academic, but—in sharp contrast—his view of Miller’s work is that it contains no academic substance and that ‘his conspiracy mongering is actively inimical to academic values’. Of Miller’s work he says: ‘The feeble? Everything that should matter to an academic: methodology; research; evidence; history. The forcible? Everything that an academic should shun: extravagant claims, unmoored from evidence; the antisemitic premises of the work; the verbal assaults on Jewish students—assaults which are the inevitable outcome of his writing and speech-making’.

I don’t propose—and indeed am not qualified—to undertake a detailed assessment of the nature of Stock and Miller’s work. I also appreciate the risk of choosing two real cases which are so open to controversy and disputes over their facts. The purpose of taking this risk is to distinguish between expression which qualifies as academic free expression and expression which does not (in doing so, it is important to note that I am making no comment on whether Miller’s speech would be unlawful under English or international law, nor whether it might still qualify as ‘ordinary’ Article 10 free expression, even if it does not qualify as an academic free expression). Therefore, if we accept (for the purposes of an exercise in illustrating and applying the principles discussed above with reference to a set of facts)Julius’ view of the facts, conclusion and academic judgment in putting Miller’s most contested work into the realm of anti-Semitic conspiracy theorising, we can in my view safely conclude that the relevant English and international law supports his philosophical stance of differentiating between political and academic free speech and granting the protection of the latter only to Stock. The lack of academic substance in Miller,^[93] as Julius puts it, disqualifies him from the enhanced protection of academic free expression for the reasons discussed above. It certainly lacks that essential academic element, but the conspiracist thinking is worse than that. It adopts some of the trappings of academic discourse in that it is ‘pseudo-critical, pseudo-evidence-based thinking’ and that it is also simultaneously anti-academic in that it provides no real mechanism for falsification. This is on all fours with the way that the Strasbourg jurisprudence which I have discussed is developing and the distinctions which it draws.

10. The Introduction of the Higher Education (Freedom of Speech) Bill

With the introduction of the Higher Education (Freedom of Speech) Bill^[94], understanding these distinctions is crucial—most particularly so for the new Director for Freedom of Speech and Academic Freedom, who would be well advised to become adept at interrogating these boundaries.

The new Director will be responsible for all of the Office for Students’ free speech functions, which will include its functions with respect to monitoring and enforcing the new registration conditions for Universities on free speech and academic freedom, promoting those concepts and providing guidance on them, monitoring the new duties on Students’ Unions, monitoring overseas funding for universities and Students’ Unions, and administering the new free speech complaints scheme where there is an alleged duty of certain core duties under the Bill. Clearly, this will be a busy and demanding role.

A running theme throughout the Bill is the distinction drawn between ‘freedom of speech’ and ‘academic freedom for academic staff’.^[95] As such, it is worth interrogating how the Bill defines and distinguishes these concepts and analysing how the Bill will fit within the legal context of the Human Rights Act and the Strasbourg jurisprudence which we have already discussed.

11. The Definition of Free Speech under the Bill

‘Freedom of speech’ is defined as including the ‘freedom to express ideas, beliefs and views without suffering adverse consequences’.^[96] So far, so obvious: that is rather the point of freedom and really adds nothing new. The crucial caveat in the Bill is that the speech must be ‘within the law’.^[97] This phrase is taken from the existing, similar duty in section 43 of the Education (No 2) Act 1986 and, when introduced in that pre-Human Rights Act time, probably meant something like the English common law conception of free speech, which was articulated by Lord Hoffmann in 1994^[98]:

It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. The freedom is subject only to clearly defined exceptions laid down by common law or statute.

So, for example, speech which is defamatory or contrary to the criminal law would not be protected: for example, racially or religiously aggravated offences under 29–32 Crime and Disorder Act 1998 and various offences under the Public Order Act 1986 and the Terrorism Acts of 2000 and 2006. This is, of course, difficult to demonstrate considering the criminal burden of proof is much higher than the civil burden of the balance of probabilities. More difficult, and usually more relevant, is interaction with civil wrongs, such as harassment under the Equality Act 2010.^[99] That being said, unless the harassment is purposeful, it will generally be difficult to show that harassment has occurred in an academic context or where the impugned speech is protected as academic free expression.^[100]

The immediate objection to that interpretation of ‘within the law’ is what about holocaust denial? Aside from certain context-specific instances—harassment under the Equality Act is a prime example—this is not specifically outlawed in the UK as it is in other countries. The gap here is filled by the Human Rights Act and the Convention. As discussed,^[101] public authorities and the courts must read and give effect, so far as it is possible to do so, to primary legislation in a way which is compatible with Convention rights and, when determining an issue concerning a Convention right, must take into account any judgment of the European Court of Human Rights. In other words, the courts will read ‘within the law’ through the lens of the Convention and won’t extend the protection of the Bill to holocaust deniers, falling outside the scope of the Article 10 protection of the Convention as they do.

Finally, we should remember that the right to free speech will include the right to academic free expression, something which will extend to academics irrespective of whether they are employed by the institution or visiting. This makes it a more powerful duty than it might first appear and leads us on to considering what additionally the definition of academic freedom in the Bill offers.

12. The Definition of Academic Freedom Under the Bill

Academic freedom for academic staff’ is defined as ’their freedom within the law—(a) to question and test received wisdom, and (b) to put forward new ideas and controversial or unpopular opinions, without placing themselves at risk of being adversely affected in [by]…(a) loss of their jobs or privileges at the provider; [or] (b) the likelihood of their securing promotion or different jobs at the provider being reduced.

Much of this definition won’t be new for Universities as it closely mirrors the definition of academic freedom in their governing documents for most of them.^[102] It is also one of the public interest governance principles with which Universities are obliged to comply.^[103]

However, it is not a satisfactory definition if one considers the definitions of academic freedom which we discussed above—these focus on broader rights to research and to teach, as well as attendant rights such as academic free expression. Instead, the Bill’s definition focuses much more on expression than crucial elements intrinsic to the rights to teach and research, such as determining the curriculum and how it is taught or the focus, purpose or collaborations of research.^[104] One might say that such rights are all implicit in the Bill’s definition of academic freedom, but that is a stretch in my view and they are only brought in to the extent they have been explicitly recognised in the Strasbourg jurisprudence. At the very least, leaving such matters to implication is very unsatisfactory given that Parliament had a ‘blank piece of paper’ when drafting the Bill.

The other striking difference to what we have been discussing with respect to academic freedom is the absence of any notion of minimum responsibilities and standards which are, as I have explored above, associated with definitions of academic freedom generally and academic free expression under the Strasbourg case law. Unlike some of the missing elements mentioned above, I do not think the Strasbourg jurisprudence rides in to impose these minimum standards in all cases just because the individual in question is an academic. It may be that a member of academic staff says something which doesn’t reach the standard of academic free expression as conceived by Strasbourg, but does fall within the Bill’s definition of academic freedom.

For example, a Theatre Studies professor may totally deny anthropogenic climate change. This doesn’t obviously flow from their professional competence or expertise nor does it obviously have an academic element, but it does test received wisdom and would be controversial. Such speech would be more exposed to legitimate inference by the University under Article 10(2) because it lacks enhanced protection as academic free expression, but it’s not incompatible with the Convention for the Parliament to afford some additional speech protection to academics—the Office for Students already effectively does this by employing a near-identical definition of academic freedom. Indeed, reading down the Bill to reduce the scope of the protection that Parliament has introduced would not be required for compatibility with the Convention.

Unless speech is outside the Convention because of Article 17, such speech would still be protected by Article 10 and the question of whether interference is legitimate falls to be considered under Article10(2).^[105] Even if speech doesn’t meet the requirements of academic free expression, that doesn’t mean it is wholly without protection—it may be protected nonetheless under the Bill, albeit at a lower level under the Convention.

These differences do give rise to the question, however, how exactly is the speech element of this definition (i.e. questioning and putting forward, etc.) materially different from the general right to free expression, particularly as understood through the lens of the Strasbourg jurisprudence on academic free expression? It would be strange to suggest that the general right doesn’t entail the freedom to question and test received wisdom or put forward controversial opinions. I think the answer is that it doesn’t add much.

Instead, what the Bill does add is an explicit right for academic staff to demand (through the tort or the complaints scheme) that their Universities take reasonably practicable steps to ensure they are not at risk of losing their jobs, privileges or chances of securing promotion, i.e. an enhanced process duty. Looking at the Bill this way gives rise to two worrying implications: does the general duty to secure free speech for others on campus not include a right to be free of the risk of losing their jobs; and, can the duty for academic staff be discharged by simply putting appropriate processes and risk mitigation in place, i.e. it isn’t a prohibition on dismissal itself.

So, then, how should the Academic Champion conceive of the speech rights under the new Bill? I think the answer is that there are essentially four sets of speech rights here:

a) First, ‘Ordinary’ free expression which is subject to the core process duty to take reasonably practicable steps to secure it, i.e. the normal process duty.

b) Second, ‘Ordinary’ free expression of an academic which does not qualify as an academic free expression but which is subject to the ‘enhanced process’ duty, but not entitled to heightened protection under the Convention.

c) Third, the academic free expression of a visiting academic speaker which is subject to the ‘normal process’ duty because they are not a member of the provider’s academic staff, but is entitled to a heightened level of protection of the Convention.

d) Fourth, the academic free expression of a member of the provider’s academic staff which is subject to the ‘enhanced process’ duty and enhanced protection under the Convention.

As one can see, I don’t think it will be an easy task for the Champion or the courts to unpick these four categories of speech in any given case. One of the most significant issues which I see with the Bill is the failure to properly grapple with the distinction between free speech on campus generally and academic freedom more specifically.

If one considers what the literature says about the nature of academic freedom and academic free expression, then it is a real problem to muddy the distinction between academic freedom and free speech. Such confusion also chips away at the key philosophical underpinning for academic freedom: pursuit of the ultimate goal of truth and knowledge production^[106] in a democratic society.

13. Conclusion on the Rights of Aristophanes’ Socrates

With that in mind, let’s conclude by returning to the Thinkery. We’ve already seen that Mill would probably extend his concept of free speech to Socrates’ pseudoscientific pontificating about the farts of a gnat and his sophistic rhetoric. Such speech too would fall within the scope of the ordinary protection of Article 10 of the Convention—though he should perhaps not expect much protection if there is a clash with the rights of others. The question is: does such speech have the academic element required to qualify as academic free expression?

While I admit I am not a scientist, I would suggest that taking to a basket on the end of a rope so as to better observe the properties of the sun is probably not in line with modern methodological and other scientific norms. As such, I think we can conclude his work on physical phenomena doesn’t qualify as core academic expression. But what about the things he says while employing sophistic rhetoric? I think here too he would struggle. This would be speech which is not necessarily flowing from an expert grounding or informed opinion with a basis in truth—it may happen to be, but the fact that truth is not the goal, there is a serious risk that there is not. Of course, given the skill of the sophistic rhetoric employed, it will be a monumental task to tell the difference between an intellectual fraudster and an academic genuinely seeking to foster truth and knowledge.^[107] I believe that this demarcation problem will be the most challenging question that the Academic Champion and the courts—guided by the Academy in a general sense – will have to tackle in the near future as far as academic free expression is concerned.

1. The Clouds—Aristophanes (115—120). ↑

2. Karran, Beiter and Mallinson in ‘Academic freedom in contemporary Britain: A cause for Concern?’ Higher Education Quarterly—July 2021. ↑

3. Or, as Badamachi puts it in Academic freedom: how to conceptualise and justify it? (Philosophy & Social Criticism, Volume 48, Issue 4, May 2022): ‘Institutional autonomy, understood as administrative autonomy, is incomplete because there is no guarantee that the administrators will always assign priority to academic freedom over other values’. ↑

4. See discussion of marketisation in ’Saving Britain’s Universities, Academic Freedom, Democracy and Renewal’ Jones and Cunliffe [2020]. See here: https://www.cieo.org.uk/wp-content/uploads/2020/08/Saving-Britains-Universities-Cieo-1-1.pdf ↑

5. See Badamachi [2022] where he argues ‘academic freedom as professional and intellectual autonomy as to be prior to institutional autonomy in order to protect the free speech rights of academics’. ↑

6. See https://www.crowdjustice.com/case/harassed-silenced-for-my-gender-critical-views/ for an overview of the case being brought by Professor Phoenix against the Open University, which in part pertains to the University not respecting her rights to academic freedom. ↑

7. The ‘Guide to Article 10 of the Convention—Freedom of Expression’ as published by the European Court of Human Rights is, for example, an excellent guide to legal protection for the right. As noted below, the Convention is given effect in English law through the Human Rights Act 1998. https://www.echr.coe.int/documents/guide_art_10_eng.pdf ↑

8. Article 10 (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. (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. ↑

9. Discussed more fully below. ↑

10. Muller and others v. Switzerland (App no. 10737/84). ↑

11. Mariya Alekhina and others v. Russia (App no. 38004/12). ↑

12. Ulusoy and others v. Turkey (App no. 34797/03). ↑

13. See variously in the Article 10 Guide: https://www.echr.coe.int/documents/guide_art_10_eng.pdf ↑

14. Handyside v. the UK (App no. 5493/72). ↑

15. Article 17 of the Convention prevents certain types of speech from being protected under Article 10 on the basis that they would be an abuse of the right to free expression. Holocaust denial (see Garudy v. France App No. 65831/01) is a core example of this, but see the European Court of Human Right’s Guide on Article 17 for more discussion: https://www.echr.coe.int/Documents/Guide_Art_17_ENG.pdf ↑

16. See, for example, Stoll v. Switzerland (App no. 69698/01). ↑

17. Erwin Chemerinsky and Howard Gillman, Free Speech on Campus (New Haven: Yale University Press, 2017), 77, emphasis in original. ↑

18. Hammersley (2017 Higher Education Quarterly, Volume 70, No. 2, pp 108–126). ↑

19. Ethics 130/3 (2020): 287–319. ↑

20. Robert C. Post, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State (New Haven: Yale University Press, 2012), ↑

21. Critical Times 5:1 (April 2022): 1–19. ↑

22. Massachusetts Review 58, no. 4 (2017): 589—207. ↑

23. He says it would be wrong to suggest that a court, with reference to the First Amendment of the US Constitution, would compel an academic institution to retain a professor who transmitted this claim as truth in the classroom. Furthermore, if these distinctions are not drawn, the academy becomes no different qualitatively to Fox News, Facebook or Twitter. ↑

24. Massachusetts Review (n 22). ↑

25. Karran in ‘Academic freedom in Europe: A preliminary comparative analysis’ Higher Education Policy, 20(3) 289–313. ↑

26. Karran, Beiter and Mallinson in ‘Academic freedom in contemporary Britain: A cause for Concern?’ Higher Education Quarterly—July 2021. ↑

27. The Office for Students—the higher education regulatory body in the UK—is required by section 2(1)(a) Higher Education and Research Act 2017 to have regard to the need to protect the institutional autonomy of English higher education providers. ↑

28. Section 2(1) of the Human Rights Act. ↑

29. Section 3(1) of the Human Rights Act. ↑

30. Section 6(1) of the Human Rights Act. For discussion of universities as public bodies, see 3.04 and 13.15 of The Law of Higher Education Third Edition, Farrington and Palfreyman. In the recent case of Sanchez v. University of Bristol [Claim No: 008LR988], it was accepted at [12] without discussion that the University was a public authority for the purposes of the HRA 98. Insofar as an academic institution will be typically dealing with its employees in what is arguably a private capacity, this is a difficult argument for the employer to rely upon. In Mba v. London Borough of Merton [2014] 1 W.L.R. 1501, Elias LJ held at [34] that Article 9 of the Convention (freedom of religion) was directly engaged in an employment dispute as the employer (a local council) was a ‘public body’. ↑

31. App no. 17089/03. ↑

32. [21]. ↑

33. [35]. ↑

34. For a fuller discussion of this, see Murray (2022) 33 E.H.R.L.R. Issue 4, pages 366—380. ↑

35. Erdoǧan v. Turkey (nos. 346/04 and 39779/04). ↑

36. See Aksu v. Turkey (nos. 4149/04 and 41029/04). ↑

37. Ayuso Torres v. Spain (no. 74729/17). ↑

38. For an example of the interaction see Aksu. ↑

39. Erdoǧan – see [6] of the concurring opinion of Judges Sajo, Vucinic and Kuris. ↑

40. Kula v. Turkey App no. 20233/06. ↑

41. App nos. 4149/04 and 41029/04. ↑

42. Everyone has the right to respect for his private and family life, his home and his correspondence. ↑

43. [72] of Aksu. ↑

44. [71] of Aksu. ↑

45. App nos. 346/04 and 39779/04. ↑

46. [40]. ↑

47. [40]. ↑

48. On the issue of extramural speech Hammersley (2017) says: ‘there is no distinctive right, I suggest, to challenge the implications that speakers in the public sphere draw from the findings, only to deny any claims on their part that those implications have been endorsed by scholarly evidence. Public engagement outside these limits must come under the heading of free speech, and therefore be exercised as a citizen not under the auspices of the academy’. I do not agree with this approach and prefer the approach of the Court in Erdogan. Hammersley’s attempt to draw a bright line for academic freedom illustrates why the concept of academic free expression is particularly useful: it obviates the need for boundaries of the enhanced protection to be drawn so artificially and so closely to research findings. The concept also gives room for the enhanced protection to apply more widely, for example, to criticism of institutional governance and curricula. ↑

49. [45]. ↑

50. [45]. ↑

51. Concurring opinion [8]. ↑

52. Concurring opinion [5]. ↑

53. Concurring opinion [6]. ↑

54. The test is described at [8] of the concurring opinion. ↑

55. In Erdoǧan, the main judgment holds that these limbs should be applied as alternatives whereas the concurring opinion suggests that they should be applied cumulatively and that the test for AFE accordingly be more restrictive, for example, it would suggest a polymath traditionally working in English might not have AFE protection for a first peer-review journal article in Mathematics (which would be an odd conclusion). In general, we consider that the former should be preferred—this reading would ensure consistency with the Grand Chamber judgment in Aksu (where the focus was more on the inherent academic quality of the impugned work) and relevant international instruments. In our view, the logic of the concurring opinion is that, to qualify for academic free expression, an individual must be an academic and their expression must be a conclusion or opinion based on their expertise and competence gained as an academic and so, properly construed in accordance with the leading judgment, Aksu and the international instruments, limb (b) of the test in the concurring opinion should be understood as including both the sphere of an academic’s research and their professional expertise and competence. Indeed, the three judges would seem to agree with this when they say at [7] ’his public comments [were] on a matter of public concern in the area of this professional competence, which is constitutional law’ and accept that just (1) and (3) of the test need be satisfied. The implications of not understanding the judgment that way would, in our view, rub too much against the grain of the balance of the ECtHR jurisprudence on AFE. In any event, the concurring opinion does note that they were concerned with extramural expression (the publication in Erdoǧan was a quasi-academic quarterly) and therefore should only be held as authority that the court may apply more rigour in examining such expression. ↑

56. [9] of the Concurring Opinion. ↑

57. [10] of the Concurring Opinion. ↑

58. See Post (2012) cited at footnote 20 above. ↑

59. Academic Freedom and the Law: A comparative analysis (2010). Stanley Fish (‘Versions of Academic Freedom: From Professionalism to Revolution’ [2014]) also advocates for a version of academic freedom as a’guild slogan’ rooted firmly in professionalism akin to that of doctors and lawyers (as he calls it, the ‘it’s just a job school’), but stops short of ‘invoking large abstractions’ such as the importance of academic freedom to democratic society (in marked contrast to Strasbourg). Of the versions of academic freedom which he delineates in his book, the position which I advocate is closest to the ‘For the common good’ school. This, as Fish outlines, has firm positions on professional standards, but in a less severe fashion as space is made for arguments for the common good, such as the importance of academic freedom to a democratic society. ↑

60. Further support for this contention can be found by returning again to the case of Sorguc v. Turkey which was discussed above. There, the court sets the scene for its discussion of academic free expression by placing reliance on a 2006 Recommendation by the Council of Europe on academic freedom and university autonomy. This states as follows: ↑

61. Recommendation concerning the Status of Higher-Education Teaching Personnel adopted by the UNESCO general conference in November 1997. ↑

62. The usefulness of the Recommendation in the context of interrogating academic freedom has been addressed by Terence Karran et al., particularly in their work analysing the protection for academic freedom in the law of European States: see pp 254—345 of European Journal of Comparative Law and Governance 3 (2016); and, ’Academic freedom in contemporary Britain: A cause for concern?’ in Higher Education Quarterly—July 2021. ↑

63. Preamble of the Recommendation. ↑

64. [25]–[32]. ↑

65. [33]–[36]. ↑

66. [34(c)]. ↑

67. [34(k)]. ↑

68. See [63] Thorgeir Thorgeirson v. Iceland (App no. 13778/88). ↑

69. The following quotes are from [50] of Bedat v. Switerzland (App no. 56925/08). ↑

70. See [93] Axel Springer AG v. Germany (App no. 39954/08). ↑

71. See [90] Steel and Morris v. UK (App no. 68416/01). ↑

72. See [168] of Magyar Helsinki Bizottság v. Hungary (no. 18030/11). ↑

73. https://unesdoc.unesco.org/ark:/48223/pf0000160495 ↑

74. [6] of dissenting opinion in Aksu. ↑

75. Article 2 of the Declaration on Race and Racial Prejudice, adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) on 27 November 1978. This is also referred to by the Court in the leading case on discrimination under Article 14 of the Convention – DH v. Czech Republic (2008) 47 E.H.R.R. 3. ↑

76. Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention. ↑

77. For examples of this principle generally, see Garaudy v. France (dec.) 2002 and Witzsch v. Germany (no. 2) (dec.) 2005. ↑

78. Article 10(2) reads as follows: ‘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’. ↑

79. App no. 27447/07. ↑

80. [27]. ↑

81. [27]. ↑

82. [29]. ↑

83. See also the case of Sorguc above. ↑

84. App no. 20436/02. ↑

85. [46]. ↑

86. [46]. ↑

87. See definition of academic freedom in section 202(2)(a) of the Education Reform Act 1988. ↑

88. https://www.bbc.co.uk/news/uk-england-bristol-58765052 ↑

89. For example, see also www.theguardian.com/education/2021/oct/01/bristol-university-sacks-professor-accused-of-antisemitic-comments and www.dailymail.co.uk/news/article-10050367/University-Bristol-professor-sacked-disciplinary-hearing-comments-Israel.html ↑

90. For example: www.theguardian.com/world/2021/oct/28/sussex-professor-kathleen-stock-resigns-after-transgender-rights-row and www.dailymail.co.uk/news/article-10141421/Feminist-professor-Kathleen-Stock-QUITS-University-Sussex.html ↑

91. https://hansard.parliament.uk/lords/2021-11-16/debates/FBF4A25A-0AE7-45C2-A525-D5649D96C543/Debate ↑

92. Current Legal Problems (2022), pp 1–44, https://doi.org/10.1093/clp/cuac001 ↑

93. It is important to note that it is not submitted that David Miller is a holocaust denier and nothing in this article should be construed as suggesting that. ↑

94. https://bills.parliament.uk/bills/2862/publications ↑

95. See, for example, Sections 1 and 5(2) of the Bill. ↑

96. See section 1 (new A1(11)) of the Bill. ↑

97. See section 1 (new A1(1)) of the Bill. ↑

98. [651] of R v. Central Independent Television plc [1994] 3 All ER 641. ↑

99. Section 26 of the Equality Act 2010. ↑

100. For a full discussion see Murray (2022) 33 E.H.R.L.R. Issue 4, pages 366—380. I conclude that there is clear guidance from the courts, European Court of Human Rights and the Equality and Human Rights Commission that the unique environment of the academy (and the unique legal framework which protects expression in that context) means there is a high bar to making out a successful claim of harassment contrary to s.26 of the Equality Act 2010 where the effect of the impugned conduct is in question. ↑

101. See above. ↑

102. See section 202(2)(a) of the Education Reform Act 1988, from which it is derived. ↑

103. See https://www.officeforstudents.org.uk/advice-and-guidance/regulation/registration-with-the-ofs-a-guide/public-interest-governance-principles/ and also see section 2(8)(c) the Higher Education and Research Act 2017. ↑

104. For a fuller discussion of the component parts of the freedoms to teach and to research, see Karran (2009) in Higher Education Policy (2009) Vol. 22, Number 2. ↑

105. For further discussion of this in the context of AFE, see above. ↑

106. Badamachi [2022] believes that this justification alone is weak and should be buttressed ‘by stronger justifications such as the justification of the university as a realm of democratic free debate and the autonomy of academics to speak freely’. By the former, he means the importance of open debate to creating a space in which students are exposed to a variety of arguments, hone their critical faculties, and learn to respect the plurality of views in the demos. By the latter, he refers to the idea that ‘individuals are entitled to speak freely in line with their chosen conception of good as a result of their autonomous capabilities’, and notes an academic’s autonomy is driven by their values of seeking truth and disseminating knowledge. ↑

107. There are two difficult problems here: (1) by whom the minimum criteria are determined—impugned academic discourse may also be, for example, challenging underlying methodological principles or received wisdom about them; and (2) once we have those criteria, how are they applied in any given case. ↑