FIRE, censorship, and the disturbing Constitutional ignorance of college students

The Foundation for Individual Rights in Education (FIRE) was founded in 1999, with its founders expecting that it would last only ten years. But you probably know that the organization is still going strong. In fact, it’s going stronger than ever due to the rise of the Authoritarian Left and student Offense Culture, as well as Obama’s “urging” campuses to expand how Title IX, the sexual harassment regulation, is construed—an expansion that has come into conflict with First Amendment rights and thrown many campuses into a turmoil (see an example here).

In fact, only a few years ago I remember FIRE being widely regarded as a right-wing fringe organization, largely because it took on the thankless task of defending free speech and expression on campuses—something that often required them to counter liberal attempts to censor “hate speech.” And FIRE is still supported generously by right-wing groups like the Koch Foundation. That’s exactly why progressives like us should fund them, for a liberal philosophy is the traditional repository of individual rights, including the right to criticize religion! Most progressive causes in the U.S., like the civil rights and gay-liberation movements, have succeeded precisely because they were able to speak freely in ways others found offensive. A gay liberation movement would not succeed in Saudi Arabia, for its proponents would not only be censored, but killed.

It’s an indication of the Zeitgeist, then, that FIRE is now so busy that it’s the subject of a new New York Times profile, “Fighting for free speech on America’s campuses.” Greg Lukianoff, the president and chief executive of FIRE, dates the beginning of the big rise in censorship on American campuses:

“Something changed,” Mr. Lukianoff said. “I don’t entirely know why.” But he can date the shift: October 2013, at Brown University, when the New York City police commissioner, Raymond Kelly, was invited to speak but was shouted down by students over his support of stop-and-frisk practices.

“I count that as the symbolic beginning because that’s when we noticed an uptick in student press for disinvitations, trigger warnings and microaggression policing,” he said. “That doesn’t mean administrators have stopped doing goofy things, but now they can say, at least more convincingly, that they are being told by students that they need to do those things.”

I was unaware of the 2016 Gallup survey quoted in the article (Free Expression on Campus: A Survey of U.S. College Students and U.S. Adults; free pdf), but, as reported by the Times, its findings are disturbing:

  • Asked if colleges should have policies against slurs and other intentionally offensive language, 69 percent of students said yes, while 27 percent believed they should be able to restrict expression of potentially offensive political views. And 63 percent wanted schools to restrict costumes that stereotype racial or ethnic groups.

In other words, roughly 2/3 of students think their schools should restrict First Amendment rights they enjoy in society as a whole.

While 76 percent agreed that students should not be able to prevent the news media from covering campus protests, nearly half supported reasons for curtailing that coverage: biased reporting (49 percent), the right to be left alone when protesting (48 percent) and the right to tell their own story on the internet and social media (44 percent). For black students, percentages are higher (66 percent, 61 percent and 54 percent).

Black students were least sanguine about the right to peaceable assembly: 60 percent saw it as a threat, compared with 29 percent of white students.

And yet, despite the 2/3 mandate for speech and dress censorship, over half recognize that their own campuses have a climate that suppresses free speech:

Over all, 54 percent polled said the climate on their campus “prevents some people from saying things they believe because others might find them offensive.”

Finally, if you go to the report, you’ll find another result:

  • U.S. college students are highly confident about the security of each of the five First Amendment rights, particularly freedom of the press (81%), freedom to petition the government (76%) and freedom of speech (73%).

Yet these are the very rights they want to remove or restrict on their own campuses! I’m not sure what’s going on here, unless students simply don’t understand the First Amendment and its historical interpretation by courts, which includes allowing speech now largely seen as “hate speech.” We’ll get to this ignorance in a minute.

In the meantime, FIRE has been extraordinarily successful in investigating and rectifying violations of First Amendment rights on campus (my emphasis below):

A lawsuit is FIRE’s tactic of last resort, especially when it comes to speech codes. In about 90 percent of cases, it uses “persuasion,” as staff members call it, to get administrators to revise or revoke questionable parts of a code. Depending on the level of “obstinacy,” Mr. Bonilla said, “the levers of publicity” — news releases, op-eds, media appearances — kick in. Most administrators, wary of bad press or an expensive suit, eliminate the speech codes.

As Mr. Lukianoff likes to note, FIRE has not lost a speech-code legal challenge yet. (He recounts many of them in his 2014 book, “Unlearning Liberty: Campus Censorship and the End of American Debate.”)

I’ve read that book, and it’s very good as well as eye-opening. I’ll soon offer a free copy as the prize in an as-yet-undetermined contest.

The Times piece does show some criticism of FIRE by universities, but I don’t find it compelling. And the article offers up one more bit of information relevant to the Christakises Halloween Dustup at Yale University:

Katie McCleary, a Little Shell Chippewa student raised on the Crow Reservation in Montana, is a Yale junior who was active in the protests. “I would not seek out FIRE even though they say they are founded for reasons of defending students who feel their voice is lost,” she said. “It seems like a specific kind of lost voice that they are interested in. It’s usually a voice that’s racist and says things that are immoral. I’d rather speak for myself.”

This shows a profound misunderstanding of the First Amendment. The court cases and complaints do indeed often involve protecting “offensive” speech (here characterized as “immoral” or “racist”). If someone didn’t find the speech offensive, there wouldn’t be any complaints requiring interventions by FIRE. But make no mistake about it—if McCleary’s right to speak her mind was violated on campus, FIRE would be there for her. Her criticisms make no more sense than saying that because accused criminals are usually guilty, yet are entitled to a defense (one that’s free if you’re indigent), then the whole judicial system is worthless.

The ignorance of students about the Constitution is amply displayed in another article in yesterday’s Times: “Want a copy of the Constitution? Now, that’s controversial!” Apparently, students passing out the Constitution on campus is considered a subversive activity

Passing out the Constitution on campus isn’t the benign activity one might expect, especially when egged on by the Foundation for Individual Rights in Education. The group provides a pocket-size “Student Activist Edition” of the Constitution, which includes directions on how to hand it out and what to do if you get stopped: “Refer administrators to the First Amendment (p. 43)”; “Consider taking a video of the conversation”; “Contact FIRE for further assistance.”

On Constitution Day — the day delegates signed the document, Sept. 17, 1787 — a student Army veteran at Modesto Junior College in Fresno, Calif., was prevented from distributing copies and told to make an appointment to use the “free-speech zone,” a small, remote area available only certain hours of the day (three states now prohibit public colleges from designating only certain areas as free-speech zones). Likewise, at the University of Hawaii, Hilo, student members of Young Americans for Liberty, a national libertarian group, were ordered back to their table after handing out copies.

It’s hard to imagine that such activity could rise to the level of infraction, but both are cases FIRE filed suit over, and settled for a combined $100,000.

When I put up the following video, made by a provocateur, showing students at Yale (a hive of The Perpetually Offended) signing a petition to ban the First Amendment, some commenters here chimed in saying that the video was fake, or edited to make people look bad. I’m not so sure about that! People simply don’t know what the founding document of America law really says—or means.

 When the Constitution of the U.S. is regarded as subversive and worthy of banning, then we’re really in trouble.

h/t: Greg Mayer


  1. Posted August 2, 2016 at 9:59 am | Permalink

    this is an absolute disaster for the future of the country. Tyranny is always only 1 generation away from reality.

    Thank you American left for nurturing and feeding this monster and for valuing feelings over facts.

    • Ken Kukec
      Posted August 2, 2016 at 11:53 am | Permalink

      The censorship occurring on campus is ridiculous. But anyone who sees this nonsense as an existential threat to our Republic is being just as pearl-clutchingly ridiculous.

      As Jerry writes above, “a liberal philosophy is the traditional repository of individual rights[.]” Look at the keystone US Supreme Court cases on free expression and take note of who litigated on behalf of the free-speech proponents, and of which Justices authored the pro-free-speech opinions. If you enjoy reading and watching and listening to the material of your own choosing, if you cherish the right to write and speak your mind, thank the Left.

      • Posted August 2, 2016 at 1:15 pm | Permalink

        I find campus censorship dangerous. It is indoctrinating the future elite of the country. 20th century history of Europe shows how easy it is to lose free speech.

        • Ken Kukec
          Posted August 2, 2016 at 1:41 pm | Permalink

          Those who would curb free speech will always be with us. (Hell, most people don’t believe in freedom for speech they disagree with.) It’s when the rest of us stop speaking out against them that a nation is in trouble.

          The loss of free speech in Europe during portions of the 20th century was a symptom of an even greater evil. In this respect, someone like the current GOP candidate for president presents a much greater threat to free expression than all the students and all the faculty and all the administrators across the nation’s campuses combined. They are merely a virus that proves our immune system is still producing antibodies. He is possibly on the verge of gaining awesome political power.

          • Saul Sorrell-Till
            Posted August 3, 2016 at 6:15 am | Permalink

            I’d agree with that. There’s a very slight tendency on the part of liberals like Dave Rubin, Godless Spellchecker and other liberal centrists to become so subsumed in their frustration with the illiberal left that they begin to engage in a subtle kind of apologetics on behalf of the right. I stopped watching Dave Rubin after every guest seemed to be a right-wing critic of the left, and this in a year when the far-right is resurgent worldwide. It borders on solipsism to focus wholly on a student/academic PC left when the biggest cretin in American political history is on the verge of being elected.

            It doesn’t make me any less infuriated by the illiberal left, but it’s worth keeping some perspective.

  2. jeffery
    Posted August 2, 2016 at 10:13 am | Permalink

    It is direct proof of the shallowness of thinking inherent in these children that they don’t seem to realize that, when they shout down a speaker for espousing ideas that they think are “offensive”, that they themselves are committing the same sin.

    As usual, we’re fighting human nature, here:
    (1) I should be able to say whatever I want.
    (2) No one should be able to say anything that displeases me.


  3. frankschmidtmissouri
    Posted August 2, 2016 at 10:24 am | Permalink

    Any person who is invited to speak by a member of a University should speak, subject to scheduling and not disturbing the rights of others. I say this as someone who has been a conspicuous consumer of the First Amendment throughout my lifetime.

    That said, free speech has never been absolute. There are exceptions for public safety (“Shouting ‘Fire!’ in a crowded theater”), for example. Nor does the First Amendment protect extortion, harassment, copyright violation, libel, or fraud. If FIRE and the other defenders were more judicious in what they define as “free speech,” they might be more effective.

    I note, for example, that FIRE is upset at my university because the Administration refused to allow the copyrighted logo to be displayed on a NORML T-shirt, because of a policy that doesn’t permit the logo to be used to promote alcohol or drugs. One can argue about whether it’s a wise decision, but if it’s true for Budweiser, it ought to be true for NORML.

  4. Craw
    Posted August 2, 2016 at 10:42 am | Permalink

    Bernie Sanders had at the heart of his campaign passing an amendment to curtail some of the speech rights now protected by the first amendment.

    FIRE is a great group, one of two I donate to (IJ is the other). Once upon a time the ACLU was reliable on this stuff, but not so much anymore.

  5. TJR
    Posted August 2, 2016 at 10:50 am | Permalink

    Is it OK to shout about FIRE in a crowded theatre?

    • frankschmidtmissouri
      Posted August 2, 2016 at 11:17 am | Permalink


    • Randall Schenck
      Posted August 2, 2016 at 11:59 am | Permalink

      Only if nothing good is playing at the time.

  6. Posted August 2, 2016 at 12:06 pm | Permalink

    I sometimes wonder if writing up more specific guidelines about what counts as “disparaging remarks” and “sexual harassment” would work as some sort of compromise in some contexts. I do think that in general one has to allow jerks and the like to speak, though. (And the fundamental difference between in the classroom and on own time.)

  7. Posted August 2, 2016 at 12:46 pm | Permalink

    High school students used to be taught about the Constitution and how our government works.
    Is this no longer taught? Immigrants who apply for citizenship must study the constitution and pass a test before they can become citizens. Perhaps all citizens should be required to study the Constitution and display knowledge of the same periodically. Distributing copies of the Constitution in a “free speech” area of a college campus being considered an infraction is obscene; Orwellian.

    • Randall Schenck
      Posted August 2, 2016 at 1:49 pm | Permalink

      I am not a teacher and do not interact with many young people today but for most that I do, I find them especially ignorant of American History. There is certainly no depth at all to even the general knowledge of it. Most could not name one important battle of the civil war or name more than one or two founders. They would no more understand the Establishment Clause than describe shared sovereignty.

      • Posted August 2, 2016 at 8:09 pm | Permalink

        They sound like a presidential candidate I could mention, but I might be the target of one of his twitter rants if I did. But his last name rhymes with rump.

        And I agree with some of the other comments here to the effect that immigrants know more about US history and the Constitution than most (all?) of the folks denouncing immigrants.

        • Randall Schenck
          Posted August 2, 2016 at 9:11 pm | Permalink

          Yes, I am constantly surprise at the knowledge people on this site from other countries have about the U.S. Just more verification of how little education schools here provide in American History and government. I just saw a piece today stating the graduation rate overall in the U.S. from high school is 80%. And from college the drop out rate is about 50%. Some put the blame on math and the requirement for Algebra. So what is the requirement for history – zero?

  8. JonLynnHarvey
    Posted August 2, 2016 at 1:58 pm | Permalink

    One of FIRE’s unsung achievements is that their founders published the second, but first really good book on this subject “The Shadow University”, a huge improvement over Dinesh D’Souza’s rather scurrilous earlier work “Illiberal Education”.
    It’s unfortunate that many student lefties can’t figure out the difference between these two works!!!
    One of their founders (and co-author of TSU), Alan Kors, was one of my favorite professors at Penn.

  9. Posted August 3, 2016 at 1:27 am | Permalink

    “Yet these are the very rights they want to remove or restrict on their own campuses!”

    I agree that attempts to suppress unpopular views is a perversion of the university whose very name implies that all views should be heard.

    But I wonder, how sound is this application of the Constitution?

    The Constitution is not a duo-Decalogue, a guide for general public and private behavior. The Constitution is a blueprint and fundamental law for governance of the United States.

    The Bill of Rights does not actually define the rights of citizens. That is the most significant departure from the philosophy of Rousseau.

    Rather the amendments that make up the Bill of Right place limits on government power, which had been for centuries the aim of the British Parliament.

    The so-called “rights” arise by implication, such as the famous decision by the SCOTUS based on the Eighth Amendment, containing the statement that citizenship is the, “right to have rights.” See Trop v. Dulles, 356 U.S. 86, 101-102 (1958).

    There is nothing in the Constitution to prevent private persons from abridging the rights of other persons. The common law and statutory law deal such behavior.

    There is a gray area for public schools and universities that may depend on the degree of control by government, whether direct or indirect. Depending on whether governance is via an elected board or appointment of governors to an autonomous corporation.

    A school board might be deemed a government institution, while a public university may be deemed an autonomous corporation.

    If so, schoolteachers would seem to have more claim to constitutional protection than university professors in state institutions.

    That they do not shows that the courts define the First Amendment rights narrowly to allow states to control primary and secondary education. Clarence Darrow did not challenge the constitutionality of Tennessee’s Butler Act. And most schoolteachers would not rely on the American Civil Liberties Union to finance a First Amendment case.

    I conclude the argument that schools and universities should be safe zones for unpopular ideas is still valid, and for the same reasons the Constitution is still valid.

    Tolerance for unpopular ideas is the most important foundation of democracy.

    “The Supreme Court of the United States has referred to [Milton’s] Areopagitica, in interpreting the First Amendment to the United States Constitution, to explain the Amendment’s protections.”


    In the US, defenders of the fact and theory of evolution still struggle to ensure that it is not banned from public schools.

    I wonder, does opposing a theory have the same protections as supporting a theory?

    In Earth science, the theory of continental mobilism was suppressed until the 1960s.

    The theory of continental mobilism is analogous to the theory of evolution in one sense: the opposing theories, both Creationism and fixed continents, rely on the null hypothesis.

    (Once one accepts Creationism, there is nothing much more to say, at least to another person who also accepts Creationism, equivalent to two persons who accept a null hypothesis in physical science.)


    I wonder, does opposing a theory of climate change have the same protections as supporting a theory of climate change?

    Currently, some academics, politicians and attorneys-general are calling for government regulation of speech regarding theories of climate change. Some universities, grant-making bodies and scholarly journals already constrain the free discussion of climate change much as they did theories of continental mobilism.

    At least one senator has proposed criminalizing dissent from anthropocentric global warming. A group of attorneys-general claim that climate change dissent has already been criminalized.


    Most opponents of the theory of catastrophic anthropogenic warming (AGW) rely on the null hypothesis. As a result, all skeptics have been labeled “deniers”, inferring equivalence to Holocaust deniers. However, not all skeptics deny warming, but rather the cause(s) of warming, specifically AGW.

    A few alternative theories exist, such as cosmic (including solar) impact on cloud physics. There are other physical and combined physical and biological theories claiming to explain natural drivers of climate change

    Some such skeptics have compared AGW with failed theories in biology, eugenics and Lysenkoism, both justified by the premise that humans can and should direct evolution.

    In addition to Exxon, associations of global warming skeptics are now being challenged by state prosecutors using the RICO statute. The legal argument is that skeptics are aware that their views are both wrong and harmful, and are pursued for gain.

    How prosecutors could convince a court of “mens rea” (guilty mind) is a seemingly insurmountable obstacle. In the absence of specific evidence to the contrary, the RICO Act requires previous convictions that demonstrate a pattern of criminal intent.

    The constitutionality of the RICO statute may soon be tested.

    The First Amendment may still defend democratic government. A deeper appreciation of history may be needed to defend universities as sanctuaries for unpopular ideas.

    • Posted August 3, 2016 at 11:33 am | Permalink

      I am under the impression there is case law that makes public universities subject to the First Amendment, and conversely, private ones not.

      The curious corner cases I’ve never seen discussed are private ones that attract lots of grants to individuals and research groups from public sources, like my alma mater, CMU, which receives a lot of DoD money.

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