Introduction

Freedom of expression is increasingly under strain in Western societies across the political spectrum. Societies have become so deeply polarised that public discourse is marked by vociferousness, intolerance, and a performative posture of openness and tolerance toward opposing ideas. More often than not, views that are unpopular with certain minorities or majorities lead to the ostracisation of individuals and the dismissal of ideas labelled as woke, extremist, leftist, right-wing, or otherwise objectionable through trial by media in the court of public opinion. This diagnosis of polarisation, self-censorship, and ideological monoculture within higher education is empirically and theoretically documented across multiple jurisdictions. Thus, a central question of this piece is whether student unions, like universities, ought to be prevented by law from ‘no-platforming’ speakers.

Indeed, across the relevant literature, there is broad agreement that higher education systems in the UK and comparable jurisdictions are experiencing heightened polarisation, with consequential chilling effects on speech. Goodwin concludes, on the basis of empirical survey data, that significant levels of self-censorship exist among academics and students, particularly those holding minority political viewpoints, driven primarily by informal social and professional sanctions rather than formal legal constraints (Goodwin 2022, pp. 4–9). Garry’s sociological analysis complements this account by demonstrating how polarisation and moralised disagreement generate informal norm-enforcement mechanisms within universities, especially in student-led spaces, resulting in localised and episodic forms of ideological closure rather than a uniform monoculture (Garry 2023, pp. 176–178). Almost 20 years ago, Palfreyman adopted a more cautious and historically grounded perspective, rejecting alarmist claims of systemic collapse but nonetheless already identifying recurring cultural and institutional pressures, including political correctness and managerial governance, that render academic freedom legally intact yet culturally vulnerable, thereby incentivising risk-averse behaviour and selective silence (Palfreyman 2007, pp. 19–22). Much of his findings remain true to this day.

The debate surrounding ‘no-platforming’ in the United Kingdom is no exception and constitutes a particularly symptomatic manifestation of this broader malaise. It epitomises the tense and fragmented political discourse over whether all ideas ought to be tolerated and whether individuals holding views deemed problematic should be denied access to academic fora in which to disseminate their ideas and engage in debate with others. Comparable dynamics are identified in the literature as a shift from contestation to exclusion within universities, often justified in the language of harm prevention and emotional safety. Goodwin documents how academics and departments increasingly avoid contentious topics, alter curricula, or decline to invite lawful but controversial speakers, not on grounds of illegality but due to anticipated complaints, reputational damage, or concerns framed in terms of student wellbeing and harm prevention (Goodwin 2022, pp. 10–14). Garry complements this empirical account by analysing student-union policies and governance practices in which disagreement is moralised and reframed as institutional endorsement of harm, leading to procedural exclusion rather than critical engagement (Garry 2023, pp. 176–180). In both accounts, exclusionary decisions are typically justified through broad and indeterminate notions of emotional safety rather than evidence of concrete risk, producing localised forms of ideological closure in which intellectual disagreement is displaced by administrative or moral gatekeeping rather than addressed through debate.

This broader concern provides the political and normative backdrop to the Higher Education (Freedom of Speech) Act 2023. The Act reflects the UK Parliament’s explicit recognition that freedom of speech and academic freedom within higher education have been perceived as vulnerable to erosion, particularly through institutional and associational gatekeeping practices (UK Parliament 2023, Explanatory Notes, paras. 2–4). The existence of widespread self-censorship among academics and students, especially among ideological minorities, provides the empirical predicate for legislative concern, rather than isolated ‘no-platforming’ incidents (Goodwin 2022, pp. 4–7, 17–19).

While earlier legislative proposals more explicitly contemplated direct restrictions on ‘no-platforming’ practices, the enacted statute instead focuses on imposing enforceable duties on higher education providers and students’ unions, coupled with regulatory oversight by the Office for Students (OfS). Thus, the Explanatory Memorandum frames the Act as a response to structural incentives that chill speech rather than as the creation of a positive “right to be heard” (UK Parliament 2023, Explanatory Notes, paras. 2–4).

‘No-platforming’ Legislative Framework

‘No platforming’ describes a refusal by a student union or university to provide a forum to a speaker, typically because the speaker is associated with views regarded as racist, fascist, discriminatory, or otherwise harmful. The practice often appears in student union constitutions, bylaws, or university statutes, and it raises acute tensions between freedom of expression, the protection of others (including students), and the maintenance of an environment conducive to education. The literature consistently identifies such practices as part of a broader phenomenon of ideological enforcement within academic institutions rather than isolated governance decisions (Garry 2023, pp. 177–179; Goodwin 2022, pp. 11–13).

Considered in the Academic Freedom (Freedom of Speech) Bill but not pursued in its original form as enacted in the Higher Education (Freedom of Speech) Act 2023 c.16, the legislation nonetheless creates a novel complaints architecture, including a statutory role for the OfS as a free speech regulator. The Explanatory Memorandum makes clear that this mechanism is intended to provide redress where lawful speech has been curtailed, while stopping short of conferring an absolute right to be hosted or amplified (UK Parliament 2023, Explanatory Notes, paras. 25ff).

A first point of legal architecture is that Article 10 ECHR is framed as a guarantee against “interference by public authority.” In orthodox terms, private bodies do not owe Convention duties in the same way as core public bodies and hybrid bodies (contrast Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37 with HRA 1998, s 6(5)). On that footing, there is no freestanding, directly enforceable Article 10 (ECHR) “right to a platform” against a student union or a university as such, particularly where the institution is structured as a private entity. Nor does Article 10 confer a positive entitlement to be invited, hosted, or amplified. Even where Article 10 is engaged against the State, it is not a right to a particular microphone. This doctrinal distinction between public authority obligations and private institutional autonomy is well established in UK academic freedom scholarship (Palfreyman 2007, pp. 23–27).

However, as the Explanatory Memorandum to the 2023 Act expressly recognises, Parliament has chosen to transcend a purely vertical conception of free speech protection. The imposition of statutory duties on universities and students’ unions reflects the judgement that bodies charged with carrying out the publicly funded and publicly significant function of higher education occupy the position of functional public authorities within a critical public sphere. By functional public authorities one means institutions which, although not reducible to the state in a formal or constitutional sense, exercise powers of access, exclusion, discipline, and resource-allocation within a sphere that is both publicly constituted and normatively central to democratic life. They administer a public mission delegated and supported by the state, shape the conditions under which debate and dissent may occur, and make decisions with direct consequences for the effective enjoyment of expressive freedom. Their autonomy, while valuable, cannot justify the creation of a rights-free zone in which fundamental expressive freedoms are left without effective protection. Rather, their role as institutional gatekeepers is precisely why the law should subject them to duties designed to guard against no-platforming and the suppression of lawful speech. The Act therefore reflects a deliberate policy choice to approximate Article 10-like obligations without formally reclassifying these bodies as public authorities. As such, the Act shows that despite the non-enactment of ‘no-platforming’ legislation, it does not follow that the law should be indifferent to ‘no-platforming’ decisions by universities and student unions. Universities and student unions occupy a distinctive institutional position. They are not merely private clubs selecting dinner guests, but they are central civic institutions fulfilling a public mission in the common interest. They exist to cultivate democratic competence, critical reasoning, and the contestability of ideas. It is their mission to serve not only individual scholars but the public interest in knowledge production and democratic competence (Palfreyman 2007, pp. 19–21; Oleksiyenko & Jackson 2021, pp. 1058–1059).

In that sense, the essential conditions of university life include freedom of expression and academic freedom. An institution that systematically denies space to contested viewpoints does not merely manage its reputation, but it reshapes the intellectual environment in which students learn to test arguments, challenge error, and live with disagreement. Empirical evidence indicates that environments lacking viewpoint diversity correlate with increased self-censorship and reduced intellectual risk-taking (Goodwin 2022, pp. 6–9; Garry 2023, pp. 178–179). That is why a legal regime closely aligned with the values and structure of Article 10 ECHR is normatively justified, even if Article 10 does not apply directly to universities and student unions as a matter of strict horizontal effect.

Justifying Statutory Constraints on ‘No-Platforming’

In light of the foregoing, the appropriate approach is not to pretend that student unions are public authorities for all purposes, but to recognise that Parliament may legitimately impose speech-protective duties on bodies that exercise gatekeeping power over a key public sphere. Such duties do not create an absolute right to be heard. Rather, they constrain the circumstances in which ‘no-platforming’ is permissible and require decisions to be evidence-based, procedurally fair, and proportionate. This mirrors the distinction in the academic literature between institutional autonomy and institutional responsibility (Oleksiyenko & Jackson 2021, pp. 1059–1061; Palfreyman 2007, pp. 27–30). This can be defended on at least three grounds.

First, universities and student unions are “bottleneck” institutions. A campus platform is not merely a physical room, but it carries reputational validation and access to students as an audience at a formative stage. Exclusion therefore has outsized effects on public deliberation, even if the excluded speaker can post online. Secondly, these bodies often benefit from public funds, public regulation, and public privileges. It is coherent to attach public-interest conditions to such benefits. Thirdly, the internal governance of these bodies is vulnerable to capture by small, organised factions. A legal duty of viewpoint-neutrality within the law can protect pluralism without extinguishing protest or the ability to criticise speakers.

The central difficulty is to draw a principled line. Controversial ideas alone cannot justify exclusion, but some speech acts are not merely “controversial”, they are abusive, discriminatory, or pose demonstrable risks to public order. The literature repeatedly warns against conflating offence with harm, noting that such conflation accelerates ideological censorship (Garry 2023, pp. 176–177; Goodwin 2022, pp. 12–14). A robust test should therefore distinguish (i) speech that is lawful yet offensive or unpopular, which should ordinarily be allowed from (ii) speech that is tantamount to proselytism in the sense of targeted incitement, harassment, or dehumanisation of protected groups or (iii) speech that creates a demonstrable, evidence-based risk of disorder, intimidation, or rights-violations that cannot be mitigated by less restrictive means.

More fundamentally, this requires strong rejection of the “heckler’s veto” as a constitutional imperative. A regime genuinely committed to freedom of expression cannot treat the prospect of protest, offence, or disruption as sufficient reason to silence lawful speech, because that would allow opponents of speech to determine its permissibility in practice. The vice of the heckler’s veto is precisely that it privatises censorship and converts threatened hostility into a decisive ground for exclusion. For that reason, the constitutional protection of free expression imposes positive obligations on the state and on institutions charged with safeguarding public debate. Their duty is not exhausted by mere non-interference but extends to securing, so far as reasonably possible, the practical conditions under which speech may be heard despite hostility. Given this, it is imperative to confine the circumstances in which speakers may lawfully be refused a platform, and it is submitted that, this can be achieved through a five-stage test for lawful ‘no-platforming’ as set out in the next section.

Limiting the Circumstances When Platform May Be Refused: A Five-Stage Legal Test for Lawful ‘No-Platforming’

A workable legal test for when a student union or university may lawfully refuse a platform should have five elements.

1.⁠ ⁠Presumption of access for lawful speech: The default should be that a lawful speaker invited by a bona fide organiser is permitted to speak. The burden should lie on the institution to justify ‘no-platforming’. Mere offence, moral distaste, reputational anxiety, or anticipated criticism should not suffice.

2.⁠ ⁠Illegality and abuse-of-rights threshold (hard edge): If the proposed speech would involve unlawful expression such as incitement to violence, criminal harassment, threats, or speech prohibited by public order or equality law, refusal is plainly justified. In addition, the institution should be permitted to refuse where the invitation is being used as a vehicle for conduct that falls within the logic of Article 17 ECHR (abuse of rights) just like the Convention cannot be relied upon to destroy Convention values. The Strasbourg Court’s approach in M’Bala M’Bala v France [2015] ECHR No. 25239/13 illustrates this point and could be used as a valid framework for developing the now moot ban contained in the discussed legislation. In that case, French comedian Dieudonné’s Article 10 complaint was rejected because the contested performance amounted to overt anti-Semitism incompatible with the Convention’s “letter and spirit.” The relevance for campus policy is not that everything offensive loses protection, but that certain forms of expression; that is, overtly antisemitic, racist, or dehumanising displays designed to undermine democratic equality, can be treated as outside the protective rationale of free speech. Where the conduct is effectively proselytism or hatred rather than contribution to debate, refusal may be legitimate.

3.⁠ ⁠Demonstrable public order risk (evidential threshold): If illegality is not made out, refusal should still be possible only where there is a substantiated risk of disorder, intimidation, or rights-violations, supported by specific evidence rather than speculation. The evidentiary standard should require: (a) an identified risk, (b) a demonstrated causality between the event and the harm, and (c) a likelihood of occurrence that is more than remote. “Controversy” or the possibility of protest is not enough. The institution must show why ordinary mitigation would not work.

4.⁠ ⁠Necessity and proportionality with “least restrictive means”: Even where a legitimate aim exists (public safety, prevention of disorder, protection of the rights of others), the institution must demonstrate that refusal is necessary and proportionate, and that less restrictive measures would be insufficient. Mitigations might include security arrangements, ticketing, moderated Q&A, structured debates, time limits, clear conduct rules, or alternative venues. This stage operationalises the logic of Article 10(2) ECHR, i.e., what matters is not whether the institution dislikes the message, but whether restricting the event is the minimum required to avert a concrete harm.

5.⁠ ⁠Procedural safeguards and reasoned decisions. The decision must be transparent, reasoned, and timely, it should identify the evidence relied upon, the mitigation options considered, and why refusal is proportionate. There should be an internal appeal and, ideally, access to an independent review mechanism. A duty to give reasons is especially important because it disciplines decision-makers to move from ideology to justification.

This model also accommodates a form of “institutional restraint” whereby universities and student unions are neither neutral in the sense of indifference to the conditions of academic life, nor activist in the sense of treating their platform as a reward for ideological conformity. Oleksiyenko and Jackson explicitly caution against reducing academic freedom to market-style competition or moral signalling detached from epistemic responsibility (Oleksiyenko & Jackson 2021, pp. 1060–1062). This is tantamount to admitting that the legitimate institutional stance of academic institutions and student unions is to protect the ecosystem of inquiry and debate. That means protecting robust, even abrasive, contestation, especially where speakers advance unpopular positions within the law, while being entitled to resist events that are functionally vehicles for intimidation, discriminatory abuse, or credible threats to public order.

Critically, the test must not collapse into a “heckler’s veto.” If protest is expected, the institution’s first obligation should be to facilitate both speech and lawful protest, not to cancel the speaker. Empirical studies show that cancellation in response to anticipated protest incentivises disruption and increases intolerance rather than safety (Goodwin 2022, pp. 14–16). Only where protest-related risks are specific, serious, and unmanageable through proportionate mitigation should cancellation occur. Otherwise, the law would incentivise disruption as a tactic to suppress speech. The recent murder of Charlie Kirk invites us all to rethink this carefully. However much one may disagree with Charlie Kirk’s philosophy and jurisprudence, the reality is that he has consistently been open to debate and intellectual exchange, regardless of whether he prevailed in those debates (see for instance Cambridge Union, “Charlie Kirk + Q&A / Debate | Cambridge Union”, Youtube). The point of debate is not to win or to lose, nor is it necessarily to alter one’s viewpoint by its conclusion. Conversation is not about agreement. Etymologically, to converse means to exchange with, not to converge in thought, thereby preserving individual agency, personality, and independent reasoning. It is precisely through the clash and exchange of ideas that intellectual engagement occurs. In this context, all individuals should be permitted to express their views, whether those views please or displease a vociferous minority or a silent majority, subject to the safeguards developed hereinbefore.

However, the 2023 Act remains institutionally incomplete. The reliance on an ex-post complaints mechanism is insufficient. The literature is clear that post-hoc remedies do little to counteract chilling effects once exclusion has occurred (Garry 2023, p. 179; Goodwin 2022, pp. 17–18). Independent decision-making bodies within universities should constitute the first point of call, with OfS review operating as an appellate layer. As presently structured, the Act risks allowing de facto ‘no-platforming’ through delay or administrative inertia. Moreover, the complaints scheme under section 8 of the 2023 Act is not yet in force, further weakening immediate protection.

Conclusion

In conclusion, while universities and student unions are not straightforward “public authorities” for Article 10 ECHR purposes, their public mission and gatekeeping power justify a legal regime that constrains ‘no-platforming’ in a manner closely analogous to Article 10. The correct legal solution is not an absolute prohibition on refusal, but a structured duty whereby lawful speech should be protected by default, refusal must be justified by illegality/abuse-of-rights, or by demonstrable public order or rights-based risks, and any restriction must be necessary, proportionate, and procedurally fair. That framework preserves the essential conditions of university life, namely, freedom of expression and academic freedom, while recognising that speech that is tantamount to proselytism or hatred, or that creates evidenced risks that cannot be mitigated, may properly be excluded. This conclusion aligns with long-standing academic analyses of academic freedom as a structural condition of democratic society rather than a discretionary institutional value (Palfreyman 2007, pp. 19–23; Oleksiyenko & Jackson 2021, pp. 1057–1059; Goodwin 2022, pp. 4–6).

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Kane Abry – Dr Kane Abry is an academic lawyer in private and public law qualified in France and England and Wales, and is affiliated with The University of Edinburgh and the University of Roehampton where he is the programme leader of the LLB curriculum. His research interests include EU competition law, commercial law, international law, constitutional law, and legal history.