When Claiming to Defend "Free Speech" Threatens the First Amendment
The Foundation for Individual Rights in Education (FIRE) is a model of illiberal free speech advocacy.
The idea of ardently defending free speech has become popular—but who’s doing the defending? Not all organizations that label themselves pro-free speech are equally committed to defending First Amendment liberties. This is especially true in cases of sociopolitical dissent, protest, and arguments for structural change.
In fact, one of the most prominent groups to bill itself as a defender of free speech has shown surprising tolerance for McCarthyist tactics against university leaders in recent days. The Red Scare during the late 1940s and early 1950s, which famously included the demagoguery of Senator Joseph McCarthy and the targeting of Hollywood by the House Committee on Un-American Activities (HUAC), not only encompassed some of the worst instances of political repression in U.S. history; it also targeted academia and had a “dramatic impact on American schooling.”
On December 5, 2023, the Republican-led House of Representatives scheduled a hearing titled “Holding Campus Leaders Accountable and Confronting Antisemitism.” Its ostensible purpose, which featured testimony from the presidents of three Ivy League universities, was to address antisemitic rhetoric and threats on various college campuses following Hamas’s attack on Israel on October 7, 2023, and the ensuing Israeli military assault on Gaza afterward. Harvard’s Claudine Gay, UPenn’s Liz McGill, and MIT’s Sally Kornbluth provided several hours of testimony before members of both major political parties during the hearing.
But the tenor of Republican House representatives’ questions took a significant turn early on. Inside Higher Ed put it this way:
House Republicans lambasted the leaders of three elite universities for more than four hours Tuesday in a contentious hearing that was focused on campus antisemitism but frequently veered into broader conservative critiques of higher education.
The hearing, in other words, was an extension of long-term reactionary strategies to smear elite institutions of higher learning in public view and rationalize severe budget cuts or political interference with their operation.
Republican New York Representative Brandon Williams, for example, argued:
If education is the solution, you don’t seem to be accomplishing that solution, even though you’ve had a 387-year run to stamp out antisemitism. . . . I’m looking backward. I’m saying, “How did you arrive here if education is your mission and antisemitism is the result?”
Chariwoman Virginia Foxx, a Republican North Carolina representative, amplified the anti-univerity goals of the hearing: “After the events of the past two months, it is clear that rabid antisemitism and the university are two ideas that cannot be cleaved from one another.” Addressing on-campus antisemitism while ensuring inclusive learning environments for Jewish students should be a widely shared educational and political priority. Opportunistically seizing on antisemitic incidents to further a manufactured culture war against universities is a dishonest and counterproductive way to do so.
Media organizations helped reactionary politicians fulfill their true aim—to delegitimize independent universities—in their reporting on the December 5 hearing with university presidents. A chorus of journalists called the hearing “disastrous,” implicitly legitimizing the spectacle of political interference that drove it. After UPenn’s McGill quickly resigned, the House further validated manufactured public outrage by approving a resolution demanding that Gay and Kornbluth resign from Harvard and MIT, respectively, as well.
Representatives from the Foundation for Individual Rights in Education (FIRE) made multiple television appearances to comment on the hearings. They appeared on CNN, C-SPAN, and HBO’s Real Time with Bill Maher to reiterate the organization’s standard hyperbole about free speech on college campuses, but spent little to no time decrying the McCarthyist tactics directed at three Ivy League presidents on national television. Theatrically appalled that Ivy League university presidents allegedly failed to denounce antisemitism on their campuses (in truth, they did), FIRE representatives failed to denounce blatant McCarthyism in Congress.
FIRE representatives’ laments about the alleged state of “free speech” on college campuses in the face of a clear hyper-partisan threat to First Amendment liberties is revealing. FIRE is part of a growing number of organizations—even a model for them—that boast about aggressively defending "free speech," but seldom refer to the "First Amendment" or "civil liberties." In other words, FIRE is a “free-speech-as-we-define-it” organization, not an organization dedicated to the First Amendment or civil liberties per se.
FIRE was founded in explicit hyper-partisan opposition to then-lawful affirmative action programs. The "individual rights" in its title symbolizes the right of university members to hold discriminatory, anti-integrationist views in educational institutions. Lawyer, civil libertarian, and author Henry A. Silvergate founded FIRE after publishing (with co-author Alan Charles Kors) The Shadow University: The Betrayal of Liberty on America’s Campuses in 1998 amid a wave of legal and political attacks on affirmative action. The authors erroneously described proactive programs to ensure equal educational opportunity and fair treatment of all students in universities as efforts “to enforce moral and political orthodoxies through abuse and coercion rather than reason,” leading to “censorship, self-censorship, and self-righteous abuse of power.” The credibility of FIRE’s claim to defend free speech and individual rights was compromised by coded rationalizations for discriminatory learning environments in colleges and universities.
FIRE later adopted a defense of free speech to oppose twenty-first century diversity, equity, and inclusion initiatives in universities. The bulk of FIRE's messaging and advocacy against those initiatives relies on a patent falsehood: that proactive diversity, equity, and inclusion efforts on campuses are censorship.
FIRE repeatedly insists that others demonstrate ideological consistency. “You have to be consistent,” Lukianoff complained to the Wall Street Journal in discussing university policies on campus political speech. What’s most consistent about FIRE’s ideological commitments, however, is not a robust defense of First Amendment liberties for all, but a decades-long commitment to opposing proactive measures to fully desegregate higher education and ensure equal—and lawful—treatment of historically excluded groups within. Defending free speech, at the cost of First Amendment liberties and academic freedom, is arguably the least consistent thing about FIRE’s advocacy.
Reactionary politicians in numerous state legislatures have transparently adopted FIRE's hyperbole about college campuses as pretexts for censorious bills or educational gag orders that restrict teaching materials and academic freedom in public universities as well as K-12 schools. The false notions about universities that FIRE promotes—that so-called thought police or speech police are censoring student and faculty viewpoints, enforcing rigid orthodoxies, and indoctrinating learners with reverse modes of discrimination—reappear across such measures.
The relatively easy translation of FIRE's messaging into political pretexts for regulating speech is no surprise. Their messaging about “free speech” shares a vocabulary and mindset with hyper-partisan think tanks that draft model legislation meant to control campus political expression. The Goldwater Institute’s highly punitive and litigious Campus Free Speech: A Legislative Proposal shares many premises with FIRE’s wildly hyperbolic descriptions of campus speech; it offers restrictive “solutions” to this manufactured “problem” that would significantly punish, and therefore curtail, perceived liberal modes of political expression in higher education.
In my book, Campus Misinformation: The Real Threat to Free Speech in American Higher Education, I explain how organizations like FIRE use pseudoscience to popularize falsehoods about students, faculty, and administrators—all while claiming to be data-driven researchers. Its “College Free Speech Rankings,” “Disinvitation Database,” or “Student Experiences Survey” look like empirically responsible tools, but they’re riddled with poor statistical analysis, biased presumptions, and vague methodologies. If you understand basic data analysis, it's easy to spot how they manufacture suspect data through bad survey methods or misinterpret others' data to support specious claims. In reputable opinion polling over time, college students and faculty consistently register the highest levels of support for free expression and tolerance for different views among all demographic groups. Yet FIRE uses pseudoscience to make it seem otherwise.
The purpose of this pseudoscientific dissembling is patently anti-First Amendment in spirit. FIRE does not call its rankings, databases, and surveys “professor watchlists,” but the general effect is the same: to let institutions know they’re being monitored, scrutinized, and potentially threatened with lawsuits.
In this case, the organization letting campuses know they’re being watched, with potentially chilling effects on free speech and academic freedom, is not itself accountable to public oversight. FIRE is accountable first and foremost to private, often wealthy and politically connected, donors. Yet it has established itself as a primary arbiter of free speech, turning "free speech" into a quasi-corporate brand rather than an inalienable right belonging to the people.
This is where their aggressive talking points about free speech on college campuses come in. Amplifying cynicism about universities rather than contesting the obvious McCarthyism now targeting higher education was a deliberate—and telling—choice in the wake of the December 5 House hearing.
Here’s FIRE President and CEO Greg Lukianoff, reacting to the televised grilling of university presidents and political demands for their “forced resignation” in a USA Today interview:
If the presidents of Harvard and Penn had run institutions that were consistently excellent on freedom of speech, then I'd be the first person in line defending even their ham-fisted answers during these hearings, saying that even though they didn't say it very well, they were correct. . . . But they sort of reaped what they sowed last week because they are terrible. They show a huge double standard when it comes to freedom of speech.
Alex Morey, leader of FIRE’s Campus Advocacy Program, appeared on CNN to lament what she called
the blatant hypocrisy, the blatant double standards that these college presidents are engaging right now. Now, cloaking themselves in the First Amendment, saying, gosh, it depends on the context, when 364 days a year, they're censoring people on their campuses for all kinds of things, you know, microaggressions, faculty not using trigger warnings, you know, professors expressing conservative views, for example.
The danger to the First Amendment itself lies in the nuances of Lukianoff’s and Morey’s rationale: if someone is inconsistent in their use of the First Amendment, then that person no longer has a credible claim to First Amendment protections—in this case, against overt political interference in higher education. FIRE is not promoting a robust defense of free speech or First Amendment liberties, but a novel consistency test: you can only claim free speech or First Amendment rights if some authoritative group believes that you exercise those rights with absolute ideological consistency. That idea is found nowhere in the First Amendment.
Politicians and bureaucrats who engaged in McCarthyism during the HUAC hearings, like their present-day equivalents in the current House of Representatives, defended freedom of a kind: the freedom to dictate conditions of speech in academia and compel academics to comply with tests of loyalty or ideological purity. Any organization that tacitly, if not explicitly, supports such illiberal and counterfeit forms of “freedom”—genuine threats to civil liberties under the First Amendment—defends free speech in name only.