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Real World vs. Ideal World

My recent posts regarding the differences between the free speech of department chairs and the free speech of professors have generated considerable lively discussion—both inside FIRE’s offices and outside (for a thoughtful response to my latest post on Shortell, see this entry from Sherman Dorn). The details of Shortell’s case bring up an interesting question: should a “free speech” organization ever publicly state that otherwise constitutionally protected speech can be restricted according to a person’s position in public life? Shouldn’t we be free speech “purists?”

The answer to that question depends on the answer to another, different, question: “How effective do we want to be in the real world?” As we focus on free speech at FIRE, it is easy to forget that university officials face a labyrinth of legal responsibilities, some of which appear (at first glance) to be in conflict. I have attended conferences during which administrators—after hearing from us and then later from “harassment” specialists—will throw up their hands and say, “I really don’t know what to do.” With myriad interest groups shouting in their ears, administrators can sometimes be excused if they do not understand all the nuances of the relevant law (of course, some administrators have no interest in understanding nuance, but that’s a subject of a different post).

In such an environment, FIRE has made a conscious decision to be a realist in the battle for free speech. In other words, our argument is not: “unless you allow completely unfettered expression in all areas of campus, we are coming after you.” Instead, we believe that the Supreme Court has—for the most part—appropriately defined the breadth and boundaries of the First Amendment, and we will hold universities to those well-defined standards. With private universities, we hold them to their own clear promises.

In the area of harassment and discrimination law, there exist quite a few gray areas. At times, it is a close question whether a particular form of speech is truly protected by the First Amendment or is a form of harassment that can be punished by applicable law. The real challenge to free speech on campus is not in those gray areas. If university administrators confined themselves to erring on the side of prohibiting “harassment” in the ambiguous cases, there would be no need for FIRE, and there would be no sense of a national crisis in the marketplace of ideas on campus. The true problem is that administrators have gone well beyond ambiguity and now systematically prohibit clearly protected expression. A “red light” speech code on FIRE’s database is not a code that arguably restricts constitutionally protected expression (an ambiguous code earns a yellow). It is one that clearly restricts protected speech under well-known and governing legal precedent. In short, there is a reason that FIRE has never lost a speech codes litigation case.

It is my belief that FIRE will diminish its credibility with administrators if we argue that they should protect speech which we—as in the Shortell case—know could be used to lawfully impose substantial legal liability on the institution. (To be clear, we would never affirmatively call for Shortell’s termination as department chair; my posts simply explored the limits of his academic freedom argument). It is not fair to the administrators in question, and it would cause them to justifiably reject our counsel. If you browse our case archive, you will not see cases in which FIRE defended as free speech even arguable “harassment” as that term has been legally defined. In some of our due process cases, there may (or may not) have been some underlying student or professor misconduct, but there was a clear denial of fundamental due process rights.

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