FIRE Attacked in ‘The Chronicle of Higher Education’

By April 16, 2007

The Chronicle of Higher Education (released on the Chronicle’s website today) features a lengthy article on FIRE (link for subscribers only) by Jon B. Gould, a professor at George Mason University. The article was of particular interest to us since it concludes with a call for the dissolution of FIRE: “FIRE has burned long enough. It’s time we put it out.” Unfortunately for Professor Gould, his article simply was not sufficient to convince us to throw in the towel on defending liberty on college campuses just yet.

Indeed, Gould’s article is plagued with a large number of flaws, inaccuracies, and misunderstandings—and FIRE intends to set the record straight. However, the article is so long, and FIRE disputes so many points of it, that one blog entry can go only a short distance towards addressing its myriad problems. Therefore, over the next few days, FIRE will be doing a series of entries on Gould’s article and our responses to his various claims. Since Chronicle links are subscriber-only, please excuse the use of block quotes when discussing the article.
 
Let’s start with one of the simpler aspects of the article—Gould’s claim that FIRE inaccurately characterizes university regulations as “speech codes.” Speaking about the 2003 launch of FIRE’s Spotlight: The Campus Freedom Resource, which is our online database of campus speech codes, Gould says the following:

Then, as now, FIRE exaggerated, failing to distinguish enforceable rules from exhortative statements, confusing examples with definitions, and taking statements out of context.

Well, that’s a serious accusation. What’s Gould’s evidence?

Consider FIRE’s objection at the time to Michigan’s “Policy and Guidelines Regarding Electronic Access to Potentially Offensive Material,” in which FIRE criticized the sentence that said, “Individuals should not be unwittingly exposed to offensive material by the deliberate and knowing acts of others.” However, the policy also states: “Freedom of expression and an open environment for sharing information are valued, encouraged, supported, and protected at the University of Michigan. Censorship is incompatible with the goals of an institution of higher education.” Indeed, the material in Michigan’s policy that immediately follows the language noted by FIRE says: “The University is a community of individuals with diverse values, beliefs, and sensitivities. Individuals must be allowed to choose what they wish to access for their own purposes.” FIRE, however, did not provide the modifying words.

Ironically, Gould here is doing exactly what he accuses FIRE of doing: confusing “exhortative statements” with enforceable policies. He claims that Michigan’s policy stating that “[i]ndividuals should not be unwittingly exposed to offensive material by the deliberate and knowing acts of others” is modified by the other statements he quotes in such a way that it no longer bans constitutionally protected expression. But let’s take a look: the first “modifier” he cites is this: “Freedom of expression and an open environment for sharing information are valued, encouraged, supported, and protected at the University of Michigan. Censorship is incompatible with the goals of an institution of higher education.” This isn’t a rule, this is a statement of philosophy—indeed, it’s the kind of “exhortative statement” that Gould accuses FIRE of confusing with enforceable policies. So is Michigan’s statement that “The University is a community of individuals with diverse values, beliefs, and sensitivities.”
 
That leaves us with these two statements to represent Michigan’s policy on electronic access to potentially offensive material:

1. “Individuals should not be unwittingly exposed to offensive material by the deliberate and knowing acts of others.”
 
2. “Individuals must be allowed to choose what they wish to access for their own purposes.”

Does statement 2 above modify statement 1 above in such a way to make statement 1 constitutional? No. Statement 1 makes a student potentially guilty of violating university policy if they show someone else something on the computer that they might find offensive. For instance, imagine a situation in which a student e-mails out a message protesting the Iraq War that features a picture of prisoner abuse from Abu Ghraib. Suppose further that one of the recipients of the e-mail finds this picture offensive and complains to the administration. Could the student be punished under statement 1 above? It sure sounds like it. Could this student appeal to his right in statement 2 to “choose what [he] wish[es] to access for [his] own purpose” in order to avoid punishment? Certainly not—after all, what the e-mailer accessed himself is not the issue. So how does the “modifier” in statement 2 make the speech code in statement 1 any less unconstitutional? It doesn’t. A public university cannot constitutionally punish one student for merely “offending” other students, via electronic communication or otherwise, and the fact that students have permission to access whatever they like when they are by themselves is immaterial.
 
While this kind of analysis may be boring and legalistic to most people, it’s well within the ability of Jon B. Gould, a Harvard-educated lawyer with a Ph.D. from the University of Chicago, to understand. One wonders why he would choose to attack FIRE using an example of our supposed “exaggeration” that is so easily disproved. Unfortunately, this particular flaw in the article is far from the only one. FIRE will be talking more about Gould’s polemic over the next few days.