‘The Culture War is Dead: Long Live the Culture War’

Last July, in her first speech as culture secretary, Lisa Nandy declared that “the era of culture wars is over”.

Then, later that month, education secretary Bridget Phillipson paused the enactment of one of the previous government’s most provocative culture war measures just days before it was due to come into force. This was the Higher Education (Freedom of Speech) Act 2023. 

A furious reaction ensued on the part of the culture warriors, and this included the deep-pocketed Free Speech Union (FSU), led by the newly ennobled Toby Young, announcing that it would seek judicial review of Phillipson’s action.

This was on the grounds that she had acted ultra vires — that is, exceeded her legal power or authority — and had also breached the public sector equality duty under section 149 of the Equality Act 2010 by removing protections for “people of certain protected groups”, such as “gender critical persons or those who espouse minority political views”.

As I previousl concluded in Byline Times, “How the Government deals with the ongoing fall-out from its pausing of the egregious Higher Education (Freedom of Speech) Act will be an early test of its mettle on this particular front.” 

Just days before the judicial review was due to take place, the Government backtracked. To quote the title of its press release on 15 January 2025: “Government reaffirms commitment to Free Speech in universities.”

Admittedly, it dropped two of the most contentious elements of the Act, namely the inclusion of student unions within its remit and the statutory tort that allowed legal action to be taken by anyone claiming that their freedom of speech had been restricted by a university.

The latter in particular would have put an intolerable burden on universities, already in considerable financial difficulty, and would have been a gift to those determined to stage events calculated to provoke protests that would enable them to claim that their free speech rights under the Act had been infringed: climate change and Holocaust deniers, anti-Muslim racists and myriad other aggrieved extremists of one kind or another would have been queuing up to mount such provocations.  

The revised legislation still imposes a duty on universities to promote free speech on campus and create appropriate codes of conduct. It also retains the oversight role for the Office for Students (OfS), England’s higher education regulator, and for its Director for Freedom of Speech and Academic Freedom, inevitably known as the free speech tsar.

The OfS maintains the power to investigate complaints about breaches of free speech from students, academics and external speakers. Universities which break the rules will be publicly held to account and could be required to pay compensation and fines; at worst, their registration could be suspended.

Freedom of expression on university campuses, and anywhere else for that matter, is obviously a serious issue. But the much vaunted “free speech fundamentalism” of Trump, Musk and Zuckerberg, faithfully amplified in the UK by the right-wing press, and particularly in the Telegraph by the likes of Alison Pearson and Isabel Oakeshott, has served to demonstrate all too clearly the highly partisan and provocative ends to which arguments for freedom of speech (albeit of a very specific kind) can be put. 

The Act had its origins in endless right-wing newspaper stories about people being “cancelled” and “no-platformed” at universities and in assiduous campaigning by lobbyists such as Policy Exchange and the FSU.

The kind of speech which it was aimed at freeing (and, by extension, the kind of criticisms of such speech that it was aimed at muzzling) is abundantly clear from the White Paper, Higher Education: Free Speech and Academic Freedom, presented to Parliament by education secretary Gavin Williamson in February 2021. Given the number of academics who criticised Phillipson for delaying the enactment of the Act, one wonders if they were fully aware of the impulses behind its creation.  

For example, in the Foreword, Williamson noted that “there are some in our society who prioritise ‘emotional safety’ over free speech”, complained of “the rise of intolerance and ‘cancel culture’ upon our campuses” and lambasted a “creeping culture of censorship”.

The White Paper itself claimed that there is growing concern within Government of a chilling effect on university campuses that means that not all students and staff feel able to express themselves without fear of repercussion. They may, for example, feel unsupported to challenge conventional wisdom or fear that their views on international political, historical or social issues will expose them to intimidation or harassment.

There is also evidence of students being concerned that they may face the prospect of differential treatment by lecturers, or adverse impacts on their career prospects, on the basis of their expressed political views. 

However, no examples of such behaviour are discussed in any detail, and the whole document is heavily reliant on two reports by Policy Exchange (here and here), whose co-author, Eric Kaufmann, has openly boasted about his role in the creation of the Act (here and here).

And it is surely significant that Professor Jonathan Grant of King’s College London, the author of another report cited by the White Paper to back up its arguments, accused Williamson of misrepresentation and engaging in a “conflation between so-called cancel culture and issues around the chilling effect”.

Calling the resultant Bill “excessive and over the top” he also had to request a correction from the Telegraph after Williamson wrote an article for it stating that he was “shocked” by the contents of the King’s study, claiming that it found “a quarter of students believed violence was an acceptable response to some forms of speech”.

However, what the report actually said was that this figure was comparable with the general public, 20% of whom held the same view.

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The University of Sussex Case

Any doubts about the kinds of freedom that the Act upholds and defends would surely be dispelled by the action which the OfS has very recently taken against the University of Sussex, fining it a record £585,000 for what it claims are breaches of the Act.

The origins of the case go back to October 2021 and the start of a student campaign calling for Professor Kathleen Stock to be sacked on account of what it claimed were her transphobic views. This attracted a vast amount of furious protest in much of the press, and, inevitably, the attention of the FSU. 

The OfS sought further information from Sussex and commenced an investigation on 22 October.  The decision to start this was not made public until a statement by an education minister in the Lords on 16 November after the Department for Education had been notified on 11 November.

Stock resigned on 28 October. She stated “the leadership’s approach more recently had been admirable and decent” while the university claimed to have “vigorously and unequivocally defended Prof Kathleen Stock’s right to exercise her academic freedom and lawful freedom of speech, free from bullying and harassment of any kind”.

However, as David Kernohan of the higher education website Wonkhe has pointed out, the process whereby the decision to investigate Sussex was taken, and whether it was acting entirely off its own bat, are matters which are entirely unclear. It would be particularly interesting to know the extent to which the OfS’s actions were a response to the press furore — much of which was based on inaccurate information and fuelled by culture war punditry.

And in this respect it is surely significant that the OfS was perfectly happy to allow its then chair, Lord Wharton, to write an article for the Telegraph, within days of the start of the investigation, in which he nailed its flag firmly to the absolutist mast by declaring: “The OfS stands for the widest possible definition of free speech — that is, all speech within the law.”

The OfS case was based mainly on one small document, namely the university’s Trans and Non-Binary Equality Statement, originally published in November 2018. This contained a requirement for “any materials within relevant courses and modules [to] positively represent trans people and trans lives”, a statement that “the curriculum shall not rely on or reinforce stereotypical assumptions about trans people” and a warning that  transphobic propaganda would not be tolerated.

This document, the OfS argued, exerted a chilling effect by creating the potential for staff and students to self-censor and not express certain lawful views for fear of facing disciplinary action.

Professor Stock was cited as a victim of this chilling effect, because she had stated that she became more cautious in her expression of gender critical views as a result of the policy. 

The OfS was also concerned that the policy risked interfering with the right to freedom of expression under Article 10 of the ECHR in ways that were disproportionate and therefore unlawful. Furthermore, it suggested that Sussex may have breached section 19 of the Equality Act 2010 by indirectly discriminating against individuals with gender critical beliefs — a protected characteristic.

It also raised the question of whether it had failed to comply with the Public Sector Equality Duty under section 149 of the same Act. This concerns protections for “people of certain protected groups”, such as “gender critical persons or those who espouse minority political views”, and, as noted earlier, played a key role in the FSU request for judicial review.

A second concern raised by the OfS related to governance failures, in that decisions were made by bodies not authorised to take them, raising the risk of insufficient scrutiny or expertise and potentially compromising compliance with legal and regulatory duties. These, the OfS argued, were not isolated incidents but part of a pattern suggesting “systemic weaknesses rather than a one-off lapse”. 

The OfS action was welcomed by Bridget Phillipson, who stated: “If you go to university you must be prepared to have your views challenged, hear contrary opinions and be exposed to uncomfortable truths. We are giving the OfS stronger powers on freedom of speech so students and academics are not muzzled by the chilling effect demonstrated in this case”. 

However, it also elicited an unusually forthright response from the university’s vice-chancellor Professor Sasha Roseneil, which revealed various disturbing aspects of the OfS investigation that relate to many of the issues discussed in this article.

As Roseneil explained, the three-and-a half year investigation was almost entirely desk-based, “trawling hundreds of university documents and webpages, reviewing policies, statements, guidance, and minutes to find potential breaches of the conditions of registration to which higher education providers must adhere”. (One is tempted to add: until it found what it was looking for).

The only person to whom the OfS spoke was Stock, and this in spite of its insistence that it “does not currently have a role to act on behalf of any individual”. 

Roseneil was warned by the OfS not to speak publicly during the investigation, which, among other things, meant she was unable to contribute to the Lords Industry and Regulators Committee Inquiry into the OfS.

This is particularly ironic given that the OfS’s treatment of Sussex mirrors some of the findings of the Inquiry. For example, that it “gives the impression that it is seeking to punish rather than support providers towards compliance, while taking little note of their views”, that “its approach to regulation often seems arbitrary, overly controlling and unnecessarily combative” and that “it has been selective in choosing which of its duties to prioritise”.

In this respect, the committee notes specifically those duties pertaining to freedom of speech, and observes that several witnesses had claimed that the “student interest” in which the OfS is supposed to be operating is defined by it “in line with the political priorities of Ministers rather than the priorities of students”. 

It also transpired that the OfS’s provisional decision in March 2024 was to levy a fine of £1 million, but this was reduced, along with most of the charges, after Sussex submitted an almost 2,000 page response.  Nonetheless, it is difficult to not to conclude that the OfS’s actions amount to a very public knee-capping, an impression only strengthened by free speech czar Arif Ahmed’s ominous pronouncement that: “We have significantly discounted the monetary penalties we initially calculated on this occasion to reflect that this is the first case of its type we have dealt with. We hope that publishing our findings in this case is helpful to all universities and colleges as they consider their own compliance with their freedom of speech duties, and ensure they have proper decision-making processes in place.”

Roseneil has concluded that the manner in which the OfS conducted its investigation and the conclusions which it reached demonstrate that it is “effectively decreeing libertarian free speech absolutism as the fundamental principle for UK universities” and “perpetuating the culture wars”. 

As already noted, a former chair of the OfS had appeared to endorse just such an absolutist position at the start of the Inquiry. And before he became the free speech czar, Ahmed had served on the advisory council of the FSU and voiced considerable enthusiasm for the libertarian conception of freedom of expression. (Of course, only a cynic would claim that this is exactly why he got the job). Various examples of such enthusiasm are discussed here, to which can be added a few more.

For example, an article in Index on Censorship on Stock and other targets of similar campaigns in which he complained of “the wholesale censorship, by a mob, of a legitimate and important point of view on a matter of public interest”. 

A piece in Spiked in which he celebrated his role in reversing a decision to disinvite Jordan Peterson from speaking at Cambridge; this was on the grounds that “we wanted anyone whom any academic saw fit to invite to be able to visit”. In this particular instance, a man who “espouses a moderate conservatism focused on self-discipline, on seeing the value in yourself and in others, and on finding meaning in life. And he connects religion with all of these things. He is no right-wing firebrand”. 

Finally another article in Spiked in which he congratulated himself on being involved in Cambridge rolling back a policy on various “micro-aggressions” which led him to complain that “our universities are very keen on restricting speech. This is partly because universities prefer to see themselves as social-justice factories rather than seats of learning”. In his view, “universities should each have their own free-speech officer, whose sole duty is to enforce compliance with the statutory duties on universities to promote free speech”, which sounds distinctly like a job application. 

When Gavin Williamson published the White Paper discussed earlier, Ahmed, not yet the czar, broadly supported it, noting that: “These proposals give valuable support to principles that everyone ought to defend. Of course in practice everything will depend on whether the regulator will use these powers impartially and with vigour”. Indeed so. 

None of this is to suggest that freedom of expression, whether in universities or anywhere else, is unimportant. Quite the contrary.  But it is criticise the way in which a fundamentalist conception of it has been relentlessly deployed by politicians, the right-wing press, the Tufton Street junk tanks and the FSU as a weapon in the culture wars. 

A  fundamental problem here is that the Act and its implementation by the OfS conflate freedom of expression and academic freedom — a category error that one would have expected a philosopher as distinguished as Ahmed to have spotted.

As Amia Srinivasan argued in an article published well before the OfS judgement but highly relevant to it, academic freedom is the freedom “to exercise academic expertise in order to discriminate between good and bad ideas, valid and invalid arguments, sound and hare-brained methods”.

Consequently it is perfectly permissible for “disciplinary gatekeepers to exclude cranks and shills from valuable communicative platforms in academic contexts, because effective teaching and research requires that communicative privileges be given to some and not others, based on people’s disciplinary competence”.

For example, editors of academic journals — of which I am one — frequently reject articles on the ground that they’re simply not good enough. This is called editing, and to represent it as an abridgement of freedom of expression would be frankly absurd.

Nor does voluble public opposition to certain ideas and those expressing them amount to “cancellation”. Of course, it’s very unpleasant to be shouted at, but it’s highly noticeable that the charge of “cancellation” is almost always levelled by those who have the privilege of endlessly holding forth in the Mail, Telegraph, Sun, Express, Times, GB News, UnHerd and so on. For example, Matt Goodwin (who, incidentally, claims that “I helped draft the original bill”, on the basis that he gave evidence at committee stage) took the opportunity of the OfS judgement to complain in the Mail that:

“In 2016, I fell foul of the woke orthodoxy when, as a professor of politics at the University of Kent, I stated my view that the result of the Brexit referendum should be respected. I wasn’t anti-EU, but I believed that in a democracy the will of the people should be sacrosanct. Overnight I became an outcast, subjected to virulent criticism that often felt like harassment. One professor told me I was barred from a workshop because of my unacceptable views. Some people on social media even spread the false rumour that I was a disciple of Donald Trump. They did everything they dared to smear my reputation.”

Nor is it ever claimed that people on the left such as Diane Abbott or Sadiqe Khan, who are the daily targets of torrents of racist abuse — and worse — have been “cancelled”. But this is because “cancellation” is a classic example of what Steven Poole calls “unspeak”, meaning a word that contains within itself a whole unspoken argument and set of implicit assumptions. Or as Amia Srinivasan puts it: 

“It appears to be content-neutral — a purely procedural complaint about ‘intolerance’ and the failures of the “free marketplace of ideas” — but in fact is substantively political. Cancellation is something the left does; when the right does it, it’s an exercise of free speech (‘triggering libs’).”

Indeed, the way in which “cancellation” is mobilised systematically, being applied only to certain targets of hostility and denied to others, is a symptom of an unspoken series of assumptions about the relative importance of those who populate the public sphere.

In particular, assumptions about whose views are worthy of respect and of being taken seriously and whose are “woke”, marginal, extreme or in some other way beyond the pale of mainstream political discourse. 

Such considerations demonstrate that the issue of freedom of expression is far more complex than the advocates of free speech fundamentalism would allow. The fact that, in the US, many of these are proving only too happy to demand the censorship of those with whom they disagree should serve as a warning that this doctrine isn’t quite the friend of freedom of expression, or indeed of freedom of any kind, that its name might suggest.

As Professor Roseneil has said, the OfS’s action constitutes “serious regulatory overreach” as a result of which “we believe that universities would not be permitted to expect their staff and students to treat each other with civility and respect”. In other words, their ability to act in their students’ best interests would be severely restricted and constrained, which could be seen as involving, broadly speaking, a form of censorship.

Given that the OfS makes much of acting “in the student interest” (whilst experiencing great difficulty in defining what this actually is), this would appear to be both contradictory and self-defeating. However, it certainly serves to confirm the suspicions of those academics who testified to the Lords committee mentioned earlier that as this “interest” isn’t defined by students themselves, the Government can advise and instruct the OfS to act in a “student interest” that in fact reflects its own interests. 

The Sussex affair gives strong grounds for believing that this is what has happened here, which raises serious concerns which go well beyond this particular case. One awaits the university’s appeal and its outcome with great interest.