Gaza campus protests: What are students’ free speech rights and what can universities do?

S tudents expressing solidarity with Palestinians and protesting Israel’s war in Gaza have set up encampments on campuses around the UK. Around 15 encampments have emerged in Oxford, Cambridge, Edinburgh, Warwick Manchester and others. They’ve also emerged in other countries, including France and Ireland.

Broadly, students are calling for transparency over and divestment from universities’ financial links with Israeli companies (particularly those involved in the arms industry). They are demanding university leaders cut ties with Israeli universities, increase resources (including scholarships for Palestinian students) and make long-term commitments relating to the rebuilding of higher education in Palestine.

The encampments follow similar action at more than 140 universities in the US. There, scenes of police arresting protesters have sparked intense debate about when (if ever) it is permissible to limit the free expression of students.

Universities have a difficult balance to strike between protecting student speech rights and ensuring campus safety.

In the US, public universities (as “arms of government”) are prevented from interfering with free speech under the Constitution’s First Amendment. While this doesn’t apply in the same way to private universities, most have agreed to uphold policies that closely resemble it. These rights must be balanced against reasonable considerations about the time, place and manner of the speech, as well as civil rights laws against harassment.

The UK does not have the same free speech protections, but many university leaders have made clear that their institutions support freedom of expression. They have reminded students of their duties to ensure that protest activities remain lawful and do not risk the safety of others.

They have encouraged students to follow university policy, and be mindful of other students, staff and members of the public. This generally means that they should not obstruct their access to work or get in the way of their education.

Rishi Sunak met with 17 vice-chancellors and representatives from the Union of Jewish Students (UJS), seeking reassurance that any antisemitism arising from the protests would be swiftly dealt with. And the education secretary, Gillian Keegan, called for vice-chancellors to “show leadership” to ensure that campuses are a safe place for all students.

— A demonstration against the Gaza-Israel war in Helsinki, Finland.

Are the protests legal?

Protests that take place on university campuses in the UK are considered legal exercises of the right to freedom of expression. The rights of freedom of expression and freedom of assembly are protected by the European Convention on Human Rights, which is enshrined in UK law under the Human Rights Act.

These rights are further reinforced by a 1986 UK education law, which requires universities to take “reasonably practicable” steps to protect freedom of speech on campus. This includes permitting and facilitating the right to protest.

There are notable exceptions. In England and Wales, speech that incites violence is considered unlawful, as is harassment on the basis of protected characteristics (race, religion, sexuality and so on). The law is slightly different in Scotland and Northern Ireland.

Expressed support for one of the UK government’s 79 proscribed organisations (including Hezbollah and Hamas) is also criminalised by the Terrorism Act.

When it comes to semi-permanent occupations, duties to facilitate freedom of expression will be in tension with universities’ obligations to keep students and staff safe. Sally Mapstone, the president of the vice-chancellors’ group Universities UK, said universities “may need to take action” if encampments interfere with the ability to take exams, graduate or go about other business.

In the past, universities have ended occupations by applying for a “possession order” from the High Court. This can lead to students being removed by bailiffs, as happened in March 2023 when the University of Bristol evicted students taking part in a rent strike.

In April 2024, Bristol Students Occupy for Palestine ended a four-week occupation of the university’s executive management building after they were served with a possession order.

Any universities that take this route would need to show that they have considered protestors’ freedom of expression and assembly rights, and that these have been outweighed by other competing obligations.

The encampments could also risk breaching the Police Crime Sentencing and Courts Act and the Public Order Act, introduced in 2022 and 2023. These controversial laws limit noisy protests and make it unlawful to cause “public nuisance”.

They also ban protests that cause serious disruption to the life of the community, including by tunnelling, locking-on and taking part in slow-walking protests. Again, any interventions (from either the university or the police) must be weighed against the freedom of expression rights of protesters.

Successful negotiations

So far, some of the protests have been successful. Management at Goldsmiths, University of London agreed to protesters’ demands, including investing in a number of scholarships for Palestinian students and reviewing the university’s investment policy. The encampment at Trinity College Dublin has ended after the university agreed to divest from “Israeli companies that have activities in the Occupied Palestinian Territory and appear on the UN blacklist in this regard”.

The University of York has also agreed to divest from weapons manufacturers. Other universities have established meetings between protesters and management, though most negotiations are still in the early stages.

Apart from upholding their legal obligations, universities should maintain open lines of dialogue with protesters. Doing so is not only essential from a safety perspective, but ensures that all are able to exercise their rights effectively. So far, most universities have been clear about their commitment to free expression, acknowledging lawful protest as a fundamental component of university life.

The free exchange of ideas will often make some people feel uncomfortable. But speech which harasses or threatens others is not only unlawful, it prevents them from taking part in university life as equals. Universities must also offer accessible channels of complaint for students and staff who have experienced abuse from others on campus.

Sources:

▪ This piece was originally published in The Conversation and re-published in PUBLIC SQUARE UK on 11 May 2024. | The author writes in a personal capacity.

▪ Cover: Unsplash/Ehimetalor Akhere Unuabona. (Licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.)