Fighting for Free Speech

October 22, 2012

The author of a new book is angry at the suppression of politically incorrect views on campus.

“On college campuses today, students are punished for everything from mild satire, to writing politically incorrect short stories, to having the ‘wrong’ opinion on virtually every hot button issue, and, increasingly, simply for criticizing the college administration,” writes Greg Lukianoff, the president of the Foundation for Individual Rights in Education (FIRE), in Unlearning Liberty: Campus Censorship and the End of American Debate.

Lukianoff, a first generation American, details the ways that colleges and universities have restricted free speech on their campuses.

He told the Washington Free Beacon that he wanted to present the arguments in favor of free speech on colleges and universities.

“They seemed to have lost sight of” the value free speech provides to a “healthy and vibrant university,” Lukianoff said.

“The cases have gotten worse over the decades.”

FIRE is a nonpartisan, nonprofit organization that seeks “to defend and sustain individual rights at America’s colleges and universities,” according to its website.

“People end up treating free speech as a conservative niche issue,” Lukianoff said, but free speech affects all kinds of speech, even apolitical speech, he noted.

Lukianoff emphasized that he is a liberal atheist, and that he has spent much of his time defending individuals and groups with whom he disagrees. Had anyone told him that he would have spent as much time defending evangelical Christians as he has, he said, he would have called it “conservative propaganda.”

“Given my experience, however, I was not at all surprised when a 2007 study of attitudes about religion among faculty performed by the Institute for Jewish and Community Research showed that evangelical Christians were the only group that a majority of faculty were comfortable to admit evoked strong negative feelings in them,” Lukianoff writes.

He cited Vanderbilt University’s “all comers policy” as an example of an administrative policy that targets Christians, and referred to a video that FIRE has made about the effects of the policy there.

The policy means, Lukianoff said, “that groups, even if they are belief-based, are not allowed to discriminate on the basis of belief.”

Vanderbilt is a private institution, where “You have the right as an individual to join a more restrictive college,” Lukianoff said.

Public schools, however, are “flat out” required to follow the First Amendment, he said. For this reason, many colleges with restrictive speech codes (FIRE has a “Speech Code of the Month” on its website) have a “legal problem on their hands.”

He added, “Every time these speech codes are challenged in a court of law, the university loses.”

While FIRE seeks to uphold legal rights at public universities, it also seeks to hold private institutions to their own standards, Lukianoff said.

The most prestigious colleges and universities “promise free speech in glowing language,” he said, as they know they will not attract the best students and faculty if they do not promote the free expression of ideas. Donors are also less likely to give money if the school restricts freedom of speech.

Lukianoff devotes an entire chapter of his book to detailing ways that Harvard and Yale restrict free speech.

One reason universities are increasingly restricting free speech, he said, is because of an expanding college bureaucracy. He said that around 2006 the number of administrators passed the number of instructional staff at U.S. colleges and universities.

“That hyper-bureaucratization has left a lot of people with a lot of power over students,” he said, and has resulted in universities being places “where people’s feelings don’t get hurt.”

But, he noted, the decline in free speech is related to the increase in the cost of college, which has vastly outpaced the rate of inflation. If the higher education bubble bursts, then universities will have less money to spend on administrators, he said, which could make universities more free for students.

The rise in restrictive speech codes has allowed “cheap dodges to meaningful conversation” to become prevalent in society.

“Campus censorship distorts the way we all talk to each other,” he said. “It’s hard to have meaty conversations when you’re walking on eggshells.”

Americans have accepted “feigned outrage as a tactic in our society,” he said, and “this is a tactic that has been legitimized and weaponized on campuses.” Ending a conversation by saying that you are offended is no way to meaningfully converse with someone.

Discourse in America has become more and more polarized.

“Our best hope to make our discourse better, given this polarization, is higher education,” in which individuals can freely and meaningfully interact with others.

Campus censorship, however, creates “an environment where people don’t feel safe” to express unpopular views on campus, which can lead to the “silent classroom,” where students do not interact in class out of fear of reprisal.

Campus censorship affects society more broadly, as well. “This academic disdain that some professors show for freedom of speech is making its way into society,” he said.

“I think that we’d be kidding ourselves” if we think that the schools that train society’s future leaders do not affect society, he said.

Lukianoff noted that many academics took the idea that an offensive video caused the protests and attacks throughout the Middle East and used it to argue that free speech in America is too broad.

Fighting for Free Speech

January 9, 2005

If you have a child in college the most important book you both should read is available free of charge. The Foundation for Individual Rights in Education (FIRE) has just released on-line its FIRE’s Guide to Free Speech on Campus  (www.fireguides.org). This guide is a must-read for college students and their parents, for it arms them against the various attempts at thought-control and censorship that too many universities, those presumed bastions of free speech and open inquiry, have institutionalized in their unconstitutional speech codes.


When it comes to such codes, FIRE knows whereof it speaks. For several years FIRE has defended those students and faculty whom overzealous, ideological, or just plain ignorant college administrators have tried to deprive of fundamental Constitutional rights such as “freedom of speech, legal equality, due process, religious liberty and sanctity of conscience,” as FIRE’s Mission statement puts it. Time after time, FIRE has used public scrutiny and sometimes the courts to compel universities to restore to students and faculty the rights wrongfully denied them.


The Guide fulfills the other charge of FIRE’s mission, which is to work “nationally to inform the public about the fate of liberty of our campuses.” But the Guide is more than just a how-to manual. It contains as well an elegantly written, brief history and analysis of the idea of free speech and its central place in our liberal democracy, as well as outlining the legal rulings on free speech that bind public institutions.


This understanding of the legal, moral, philosophical, and historical place of free speech in our political culture is particularly important for students in higher education. Universities are vocal in their assertions that they are protected spaces nurturing of “free inquiry,” “academic freedom,” “diversity,” “dialogue,” and “tolerance,” and that they welcome all views, no matter how far from the mainstream. The prospective student is led to believe that, as the Guide puts it, “Regardless of your background,” college is “the one place where you could go and hear almost anything—the one place where speech truly was free, where ideas were tried and tested under the keen and critical eye of peers and scholars, where reason and values, not coercion, decided debate.”


But when the sometimes impressionable and naïve freshman actually arrives on campus, he or she finds a different reality. The student quickly learns that “America’s colleges and universities are all too often dedicated more to indoctrination and censorship than to freedom and individual self-government.” The loudly lauded ideals of “diversity” and “tolerance” in fact often camouflage a rigid orthodoxy that only the most confident and assertive of young adults are likely to challenge.


In true Orwellian fashion, “In order to ensure ‘diversity’ and ‘tolerance,’ [the university] will censor and silence those who are different or independent.” Given that most universities and their faculty are overwhelmingly liberal and secular, this means that conservative, observant Jewish, or Christian students are the most likely to discover that “diversity” doesn’t mean diversity of political viewpoint, and that “tolerance” doesn’t extend to people of Western faith (non-Western religions are another matter, as they benefit from the university’s idealization of the multicultural “other”). This enforcement of political orthodoxy on the part of public institutions extensively funded by taxpayer money is obviously a betrayal of “the standards that [universities] endorse publicly,” and so these administrators “have failed to be trustees and keepers of something precious in American life.”


The Guide arms students with the philosophical and legal arguments that undercut most attempts to suppress free speech on campus. Particularly helpful is the summary of Supreme Court decisions that have defined speech and indicated its legal limits, legal knowledge many universities arrogantly ignore when they construct their various codes.



For example, contrary to popular opinion, the First Amendment also protects religious speech: as the Court said in 1993, “a free-speech clause without religion would be Hamlet without the prince.” Thus universities cannot tell religious student groups (as several campuses have tried to) that they cannot restrict leadership positions to members of the religion. As the Guide puts it, “The First Amendment’s free exercise [of religion] clause, combined with First Amendment protections for free speech and free association—not to mention decency and common sense—clearly permit religious organizations to use their religious principle to select their leaders.”


Another important limit students need to understand is the “fighting words” exception to free speech, which is frequently invoked by speech code proponents. Yet despite some incoherence in the various courts’ interpretation of this limit, the Guide points out the definition of “fighting words” has been increasingly narrowed by the Supreme Court and other courts: “Presently, in order to be exempt from First Amendment protections, fighting words must be directed at an individual, and that person must be someone who realistically might actually fight” (a definition that rules out most college professors, by the way). Defined thus, the “fighting words” limit is exceedingly narrow, and since its definition in a 1949 decision, “the Supreme Court has not found a single case in which it deemed speech to be sufficiently an instance of fighting words that could be banned. The category of fighting words, thus, is alive far more in theory than in any actual practice.”


This narrow interpretation of “fighting words” means that students should challenge any campus speech code that justifies itself with this doctrine, as its application is unlikely to pass Constitutional muster. So too with other limits to free speech frequently cited as justifications of censorship, such as “incitement,” “obscenity,” “indecency,” or “emotional distress.” In each case, the courts have ruled that the benefit of the doubt goes to the right of free speech, and any limits based on these exceptions must pass strict legal tests.


Every page of the Guide is filled with such useful legal facts the knowledge of which will arm students against universities attempting to censor speech. For example, many universities invoke court decisions applicable to high schools, yet the Supreme Court has explicitly indicated that universities are very different from high schools in terms of their constituents and missions, that of the university being to provide a public space for the free exchange of ideas by voting-age adults. So too with other issues, such as the differences between public and private schools; the impact of state laws on private schools (the Leonard law in California, for example, gives students at private schools the same rights as those at public); the prohibition against the compulsion of adherence to “an official point of view on any particular political, philosophical, social, or other subject,” the so-called “right to conscience”; the conflict of harassment codes and “hate speech” restrictions with free speech rights, and many others. In each case, the Guide gives students the legal and philosophical information necessary for defending their rights.


In addition to invaluable discussions of First Amendment law and its applicability to college campuses, the Guide contains many specific scenarios and examples of unconstitutional overreach on the part of college administrators and ideologues.  Some of these might appear fantastical, but they all actually happened at U.S. colleges and universities. For example, if you think no university would shut down a student paper because a student leader charged it with sexual harassment for running a satirical cartoon that poked fun of her tight clothes, think again—-this actually happened at Tufts University, which threatened to shut down a conservative student paper because female students the paper satirized charged the paper with sexual harassment. FIRE got involved and convinced the university that the satire was protected speech and so any sanction of the paper would be unconstitutional. In case after case that FIRE has been involved in, attempts to suppress students’ free speech rights fail when the cases are publicized and the university is threatened with the public relations nightmare of litigation.



FIRE’s Guide has one simple but important message: students do not give up their free speech rights when they step onto a college campus, and they should never acquiesce in the attempts of faculty, administrators, or student organizations to compel them to forgo that right. But the burden is on the student to fight for his or her rights and demand that the university demonstrate that its restrictions do not violate Constitutional rights. To this end the Guide provides “Five Steps to Fighting Back,” and reminds student that there are allies outside the university, not the least of which is FIRE itself, willing and able to help in the fight against censorship on the part of those in the university who enjoy a privileged and protected space precisely so that the campus can welcome all ideas and opinions, no matter how unpopular.


As the Guide puts it, quoting John Milton, “If any institution on earth should be ‘the mansion house of liberty,’ trusting in ‘a free and open encounter’ of truth and error, it should be higher education in a free society.” It is a sad indictment of our intellectual corruption that higher education has taken the lead in attempting to make sure that “free and open encounters” occur only within strictly defined and ideologically biased parameters. But it is heartening to know that organizations like FIRE are actively fighting to make colleges and universities live up not just to their own ideals but also to the fundamental values of our republic.

Download file "5"