Free Speech on FIRE

Robert VerBruggen

‘The essentiality of freedom in the community of American universities is almost self-evident,” wrote Earl Warren in a 1957 Supreme Court opinion. Apparently, American universities themselves have come to disagree.

In Unlearning Liberty, Foundation for Individual Rights in Education (FIRE) president Greg Lukianoff demonstrates that the First Amendment is in serious danger at many institutions of higher learning. Where universities once went to court to protect campus speech from state intrusion, students and even professors must now go to court to keep schools from censoring them. Sometimes schools go beyond censoring unapproved viewpoints, and simply compel students to express the approved ones.


FIRE — one of the few organizations in America that conservatives might describe as “litigious in a good way” — provides legal assistance in these cases. The First Amendment requires public universities to let their students speak, and many private universities advertise their commitment to free speech in their recruitment materials, creating a contractual obligation to refrain from censorship.

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Given that FIRE often works with the ACLU, that Lukianoff is a lifelong Democrat who says he has no intention of ever voting for a Republican, and that the Berkeley Free Speech Movement of the 1960s was not exactly a right-wing phenomenon, many may be baffled that FIRE is typically considered a conservative group, and that Unlearning Liberty appears courtesy of the decidedly right-leaning Encounter Books. But today, many leftists have values they place higher than free speech: They’ll censor a documentary in the name of campaign-finance reform, and, as Lukianoff demonstrates, they’ll censor college students in the name of political correctness. Unlearning Liberty is not a long book, but it is a truly staggering catalogue of stories from the nation’s universities — the plural of “anecdote” might not be “data,” but certainly there’s a point at which anecdotes establish some sort of trend. In his decade at FIRE, Lukianoff has seen it all: A Brandeis University professor was forced to attend sensitivity training for discussing the word “wetback” in a Latin American–politics class. The University of Delaware’s Residence Life department for years ran a now-notorious mandatory indoctrination program; one male RA filed a report against a female student when she refused to answer the question “When did you discover your sexual identity?” Numerous schools restrict political activity to tiny “free-speech zones” and require students sign up to use those zones well in advance.
And once universities get into the habit of policing and even mandating speech, they don’t stop with conservatives — often, students are targeted merely for criticizing their university. FIRE took up the case of an environmentalist who was declared a “clear and present danger” and kicked out of school for his crime of protesting, on Facebook, Valdosta State University’s plan to build new parking garages. At another school, a student was told he couldn’t attend his graduation ceremony because of his “negative social-media exchange during the institution’s recovery” from a tornado — he had criticized, also on Facebook, the college’s decision to reopen while some students still didn’t have power.
Universities have also taken up the cause of policing inappropriate speech, from swear words to sexual innuendos. Harvard University revoked approval for a dance party when the student groups hosting it used the term “barely legal” in their advertising. A student at Washington State University directed a play in which he, South Park–style, tried to offend as many groups as possible — and university officials trained a mob of students to disrupt the production.
These incidents typically happen thanks to some truly awful — and often unconstitutional — university policies. Overbroad “speech codes” are so common that FIRE has a Speech Code of the Month Award. Lukianoff provides a handy chart explaining each award since October of 2005, featuring official prohibitions on “negative comments or jokes,” “emotional harm to others,” “inappropriately directed laughter,” and anything that would “diminish [another’s] self-esteem.”
While Unlearning Liberty focuses primarily on the First Amendment, Lukianoff also demonstrates that the rest of the Bill of Rights is hardly safe on campus. For example, many universities have taken it upon themselves to evaluate sexual-assault claims and punish the offenders, rather than leave such matters to the police — and the Obama administration has instructed schools to require a low burden of proof.
Lukianoff and FIRE do tremendous work in fighting for free speech on campus. But outside the courtroom, perhaps the main takeaway from Unlearning Liberty is that Americans should not hold universities, including elite ones, in such high esteem.
— Robert VerBruggen (@RAVerBruggen) is a deputy managing editor of National Review.