So to Speak podcast transcript: 20 years of FIRE with co-founder Harvey Silverglate

October 2, 2019

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Harvey, before we get into how FIRE was first founded, I wanna know what got you interested in the issues of free speech, academic freedom, due process, individual rights broadly speaking?

Harvey Silverglate: Well, first of all, I have represented students from the very early days of my law practice. I represented the students who rioted at Harvard. The free speech movement, various campuses. I was always a free speech nut and very early in my career I was representing students.

Nico: When you say you were a free speech nut, was there something that animated that? Did that come from anywhere or was it just kinda part of who you were?

Harvey: You know, I’ve been asked that before and the best that I can answer is this; I was born and raised in Brooklyn, and there was a certain culture in Brooklyn. And the culture can be summarized by the following, which we kids memorized and used all the time: “Sticks and stones will break my bones, but names will never harm me.”

That is to say, don’t hit me, but you can call me anything you want and I’m okay with it, I can take it. But don’t hit me, I’m not a great boxer but I’m a pretty good talker. And you call me a name, I’ll call you a name and then afterwards we’ll be friends.

Nico: We’ll sort out our problems, we won’t go to –

Harvey: Yeah.

Nico: –some authority figure to figure them out.

Harvey: We do not need codes; we do not need authority figures. And we got along quite well. The neighborhood I lived in in Brooklyn was – my building, the apartment building I lived in, was all Jewish. Right next door was all Italian and we actually got along. We called each other names, of course, but we got along. And that’s when I imbibed the notion that speech is useful, but it’s not really dangerous. And letting people say what’s on their minds is one of the ways of preventing them from being violent. They can say what’s on their mind, what a wonderful method, what a wonderful device for preventing violence. So, I had an appreciation and a respect for free speech.

Nico: So, you ended up going to Princeton, correct?

Harvey: I did.

Nico: And that’s where you met Alan Charles Kors, who co-founded FIRE with you.

Harvey: That’s correct.

Nico: When you were at Princeton, did you have any of these issues on campus with being able to speak out? I know that was before the free speech movement and there was a lot of, in loco parentis I’m assuming on campus, but did you have this instinct to kind of rebel against authority?

Harvey: Well, I was a fish out of water at Princeton. Here I was, a Brooklyn boy, and I ended up in Princeton. How did that happen? Believe it or not, it was the only place I could afford. Because Princeton had a fellow named Caine. C-A-I-N-E.

He made a fortune in racehorses and he left Princeton his fortune, provided that – He said that it would be used for scholarships, but before they could generally give scholarships to whoever they wanted to use the funds for something other than scholarships. They had to give scholarships to people, kids, who graduated from five high schools that he named and my high school – by then I lived in New Jersey, Jersey suburbs. But go to high school at not a great high school.

But, Bagota had one student who went to Princeton every year and the guidance counselor was the one who really selected and said. She came up to me and she said, “You know, apply to Princeton because I think you’re a good candidate for the Caine Scholarship.” I apply, I got a full scholarship which fortunately, because I had no money. And I got to Princeton on a scholarship but, none the less, I was a bit of a fish out of water. You can imagine a Brooklyn boy at Princeton. Those days, Princeton was still more than 50 percent private school students who came from south of the Mason-Dixon Line.

This was not Brooklyn Polytech, believe me. This was not anything that I was accustomed to. I met Alan Charles Kors, we were a little bit the same, he was from Jersey City. We got through it, and then we came to Cambridge. I was at the law school and he was at Harvard Graduate School. So, we had a long history together before we started FIRE.

We started FIRE because we were getting requests by students on campus who were being penalized for things they said. They were upset being penalized for things they said because they thought that if you can’t say it on a college campus, where can you say it? The notion that there was more free speech out here in the real world than on the college campus astonished these students, astonished me. I think Kors was more accustomed to – being a faculty member, he saw this before I did.

But we decided that all these students who were coming to us, for help. Me as a lawyer, and Kors as a professor. That they really needed more organized help, and more time and resources than we could expend. Kors had a full-time teaching schedule; I had a litigation schedule. I represented people in trouble, mostly criminal law and some First Amendment stuff, and we just couldn’t do it anymore. And so, we decided that we were going to start an organization that was going to help carry the load of students who had free speech problems on campus and due process disciplinary problems on campus.

Nico: But before that, you two wrote the book The Shadow University?

Harvey: Yes.

Nico: What was the inspiration for writing that book? Was it also students coming to you?

Harvey: Yes.

Nico: Faculty members coming to you?

Harvey: Students and faculty members coming to us, and as a result of the fact that they were coming to us, we had knowledge of these problems all over the country. On campuses all over the country, private and public colleges, from the top to the bottom, from the most elite organization and the most elite colleges to the ordinary state colleges, community colleges. It was happening everywhere, and we had the picture, the big picture of this. So, we decided what we were going to do was we were going to write a book about it as a way of helping people and as a way of calling attention to the problem.

So, we got together, mostly here in this house, we wrote The Shadow University. The Shadow University got published, and what happened was, it massively increased the number of people coming to us for help. We figured this book is a self-help book, but it didn’t turn out that way. It simply said, “Oh, here are two guys who understand this problem. They know how to defend against these silly prosecutions for free speech –” And so, it didn’t help us. We were flooded with cases and that’s when we decided we had to start FIRE.

Nico: What was the response from Universities to The Shadow University? Because it’s my understanding that the book got quite a bit of publicity. In the 1990s, that was the height of the political correctness movement, so to speak.

Harvey: Yep. The thing about the book that got attention was we named names. We actually named names of, not only the colleges, but the deans, the presidents, the ones who were the real cowards and the ones who were the kind of tinpot Napoleons who were terrorizing students and faculty members who were exercising free speech. And the naming of the names turned out to be a brilliant strategy, because these people were embarrassed.

So, Kors and I figured we needed an organization that will publicize these cases. You know, FIRE, the main weapon that FIRE has, and it’s had it since day one, is it names the names of these people and shames them. We have fabulous press – always had, fabulous press relationships and we can get their names in the paper. And a dean, or a president, or a faculty member who is trying to shut students up, punish students for saying things – or deans who are trying to shut up professors and punish them, they end up with their names in newspapers, including their home town papers.

We developed the art of not only getting their names in the national press, but equally harmful to them and painful to them, in their local community newspapers. And this really aggravated them. So, we found that aggravation was a wonderful form of torture, that it really caused these bureaucrats, these tinpot Napoleons, to stop and think before taking out their power obsession on students.

Nico: What were some of the challenges in first getting FIRE up and running in 1999? Well, 20 years ago.

Harvey: Well, I had a full-time job as a lawyer. Kors had a full-time job as a college professor. And here we had this organization and Kors and I ran it in the beginning. We eventually got enough money; we were able to have an executive director. But for years, FIRE ran on a shoestring. And we eventually were able to get a fundraising apparatus. We got non-profit organizations that looked at what we were doing and liked it.

Because remember, we represented students and faculty members who were liberals, who were conservatives, who were libertarians, who were communists, who were socialists. And it was pretty obvious that this was a really, a truly non-partisan effort to get free speech and due process rights. Remember, Kors was a conservative and I was a liberal and so, from the beginning, FIRE was non-partisan. Had to be, because the co-founders were at different ends of the political spectrum, who none the less, were friends and cohorts.

Nico: What were some of the most memorable cases from those early years? Either cases that came up around the writing of The Shadow University, or in the early years of FIRE.

Harvey: Well, there was of course the infamous water buffalo case at Penn. This is the paradigmatic case of not only suppression of – punishment free speech, but also punishment without due process. And also, it was the greatest example, it was a gift that fell from the heavens like mana into our laps because the administrators were total morons, including the president of the university. They were total morons.

Imagine that the student, Eden Jacobowitz who was leaning out his dorm window trying to study, and there were these sorority girls down below who were whooping it up and making all this noise and he couldn’t study. And he said, “Shut up, you water buffalo.” Immediately, the administration and its politically correct mania assumed that he was calling them water buffalos, because water buffalo was of a black animal from Africa.

Well, first of all, just to show you how stupid these people are, water buffalo are not from Africa, they’re from India. And Eden Jacobowitz, English was not his first language, Hebrew was. And he roughly translated water buffalo in English from the Yiddish word bahama. Bahama, and I know what bahama means because my Yiddish speaking grandmother used to call me a bahama, is a very loud – it was slang for a kid who was loud and boisterous –

Nico: Unruly?

Harvey: –and unruly. So, it all grew out of an ignorance and misunderstanding. But Eden, Eden was disciplined for calling these girls a racist term. Eden went to court, and Kors decided he was going to defend Eden. Kors called me, because I was a lawyer with experience in the First Amendment and due process area. And I joined up with Alan to help advise Alan in representing Jacobowitz. Nobody in the world thought that we had a chance in hell of winning the case, but of course we did.

Why? Because we had great press contacts and the administration was so embarrassed that they finally had to admit the obvious, that this was not a racial epithet.

Nico: People are still talking about that case. I was looking on Twitter over the weekend and somebody had referenced the case. I don’t know if this particular part of the story is true, but they said that the administration had tried to schedule Jacobowitz’s hearing during one of Kors’ finals. And Kors decided he was going to cancel his final in order to be there to represent – That just struck me as – it struck me that it struck Kors as it being this important, that we need to cancel a final.

Harvey: It’s absolutely true but Kors was a brilliant strategist, mind you. This was also part of the strategy. That kids were gonna have to go without their education, without their class, because the administration was so omurate, and stupid that they were going after another student for speaking freely. And under a misunderstanding, even, as to what he was saying. Mind you, our position is, even if he was using a racial epithet that it would be protected. But it didn’t even get that far. They didn’t understand Yiddish. So, that was – it’s a great story.

Nico: The early cases at FIRE, what type of cases were they? Were they cases dealing with over broad speech codes, harassment policies for instance? I know in 2001, was only two years after FIRE was founded – three years after FIRE was founded. 9/11, I imagine there was some cases surrounding that, but what were the early types of cases like, or did they run the gambit?

Harvey: They ran the gambit. But, what we discovered, although I think we knew it before we even started FIRE, was that administrators can latch on to any excuse for shutting people up. Either because they don’t like to hear what the people are saying, or they don’t wanna have a campus turmoil. Everybody should say nice things to each other and students – because if students started to call each other names, students start to challenge each other’s political ideologies and ways of life, that eventually, this is the imagination of the administrator, soon they’ll start killing each other.

You know, the administrators jumped from speech, that was hostile and loud, to violence. They couldn’t understand, these were two very different things. And the real insight they didn’t have, was that by allowing students to shoot off their mouths, you know, release their steam by calling each other names, you reduce the chances for violence because they got it out of their systems. They were able to call someone a name, rather than punch him in the nose. Speech actually is conducive to anti-violence, something that college administrators still don’t understand.

Nico: We talk about speech a lot at FIRE, with good reason of course, but FIRE in its mission isn’t tasked with just defending free speech rights. There’s also religious liberty, if we look at our guides to student rights on campus, we are involved in orientation programs – they venture off into thought reform, due process rights, of course. Why were those other rights incorporated into the founding mission of FIRE?

Harvey: Because liberty – because freedom can’t be segmented into convenient capsules. Freedom covers a wide gambit of human relationships, inter-relationships, and you really can’t have one without the other. You can’t have free speech without freedom of religion. For one thing, a lot of people’s free speech right is exercised in the name of religion. And due process is essential because you can’t have free speech rights if you allow kangaroo courts for people who exercise those rights.

The beauty of the Bill of Rights is, how much of the Bill of Rights is woven together in a magnificent grand tapestry that we call freedom, or we call liberty. And you can’t break it up, you can’t break it down into constituent parts. And if you’re in favor of one aspect of liberty, you’re in favor of them all. If you’re in favor of free speech, as Nat Hentoff would say, “For me, you have to also give free speech to thee.” So, it’s a whole state of mind, it’s a whole political tapestry and we were in favor of the full monty, so to speak.

Nico: When a lot of people think about FIRE, they think of it as a legal organization. Perhaps because these rights are codified in the Bill of Rights. But early on in FIRE’s history, it didn’t litigate any cases. That’s a relatively recent phenomenon.

Harvey: That’s correct. We left the litigation to the ACLU, which back in those days was a very powerful free speech organization. It’s much less so now, I say sadly, but we left the litigation to the ACLU. We used tactics of pressure and of just exposing them. A dean could be a tinpot Napoleon privately, but when he’s suddenly on the front page of newspapers, the campus newspaper, or the town paper, or the national press, or his hometown newspaper, he’s embarrassed. And we used embarrassment to tremendous effectiveness.

Nico: Those early letters, FIRE has always written letters to universities when it uncovers a problem.

Harvey: Yes, and those letters were almost always public, too.

Nico: And the responses were public.

Harvey: Yes.

Nico: Those letters featured very little, if I’m recalling correctly, legal president. It was almost always moral.

Harvey: Correct. Academic freedom, we used academic freedom more often and more effectively than we used the First Amendment.

Nico: Were universities responsive in those early years to the argument? FIRE, at this point just a couple years old, not even. Not many staff members, not a big budget or endowment to speak of.

Harvey: Let me tell you something. What characterized FIRE back then, and characterizes FIRE today, is stubbornness. Stubbornness. We never gave up. If we wrote a letter to the college president, or the dean, and we didn’t get a response we sent a follow-up letter saying, “Dear President So-and-so – You must be very busy; you’ve overlooked our letter of January 8th. We’re enclosing another copy of it; we anticipate hearing from you.”

And if we didn’t hear from them, we would write to the Board of Trustees. We would say, “You know, you have a real problem on your campus. Not only has the administration violated the free speech or due process rights of this student, or this faculty member, but they don’t even answer their correspondence. So, we’re now sending this to you and we’re asking for your response.” Well, the first thing that would happen was, the chairman of the board would call up the dean and say, “What the hell is this all about, why is this landed on our laps? You’re supposed to [inaudible] [00:21:16]”. And we would get a response. And why would we get a response? We never gave up.

Nico: Stubborn.

Harvey: They knew that we were gonna hound them, we were gonna play them. We were gonna send this, send news releases to their hometown newspaper. We were gonna continue to be gigantic pains in the neck, forever. And they didn’t want this forever.

Nico: So, as a staffer at FIRE, I’m sometimes asked the question, “Did the acronym become the full name? Or did Foundation for Individual Rights and Education come first, and it just so happened to have the acronym FIRE?”

Harvey: Well, when we –

Nico: Because it’s a great acronym.

Harvey: When we named FIRE, it was helpful that there was this acronym, FIRE, and we were able to have out symbol as a torch. That got the campuses very nervous, you know, the administrators very nervous. But FIRE was a very convenient name, however, it was very important the we had in the title; Individual Rights. Because, we were interested in the rights of the individual. Not the rights of the institution, we were interested in the rights of the individual.

There were plenty of people who fought for rights of institutions, academic freedom. Professors have an enormous amount of rights. Institutions, they have tax exemption. But we were interested in the individual student, and so the I, Individual Rights, the I-R was very important in the name of the organization.

Nico: When you first founded FIRE, Laura tells us that you didn’t think it would be around for very long. Why is that?

Harvey: Well, this is – I suppose I should be embarrassed at this. I told Alan Kors and I told our board, and everybody who would ask, that I was anticipating that this – I would consider myself an organization man. But I thought surely this problem was so absurd. The fact that you can’t say something on a college campus? This is the place where you should be able to say everything. That there was more freedom of speech, as I would put it, outside of the college gate than inside? It was absurd.

This is such an absurd problem, the speech codes were so inappropriate on campus, surely that if we bring attention, call attention to what’s going on on the campus, that this problem would disappear in 10 years. It couldn’t possibly last more than 10 years because of the absurdity of it. And as soon as the world sees what these campuses are like and the idiocy of these administrators, surely the problem will go away and free speech and due process will be restored to the campuses.

So, I assumed FIRE was gonna be around only for 10 years. I was in shock when 10 years came around and the problem had actually grown worse. I was in shock at the 15th year, and here I am facing the 20th. Unbelievable that 20 years after we started to call attention to this dysfunctionality of the campuses with regard to fee speech, and academic freedom, and due process, the need for FIRE is worse than ever, stronger than ever. That is not a happy – I mean, I’m happy that FIRE is doing this job. I’m happy that we have the resources, I’m happy that we have the staff. But I’m very unhappy that we’re still around, we shouldn’t be. This is an organization that should’ve gone out of business 10 years ago.

Nico: In some ways though, FIRE has won. The battle has made a lot of progress, I should say, in some of the battles that were set out for it early on. With regard to speech codes, when we first started tracking those in what, 2007? 80 percent of colleges had red-light speech codes. Now we’re below 30 percent, I believe. 28 percent is the last report. The Federal Government has gotten better, in 2011 of course, they had the Dear Colleague Letter and just a couple months from now we’re gonna get revised regulations that should hopefully institute greater due process protections for a student in the Title IX context. Administrators, in certain regards and at certain schools have gotten a little bit better.

We’re starting to see orientation programs at schools that educate students about free speech and academic freedom. I’m thinking about University of Chicago, Perdue, even Princeton. One of its first reads that it gives its students over the course of summer was Keith Whittington’s book about free speech on campus which is very solid on these issues. But at the same time, you’re seeing new challenges. You’re seeing rising intolerance among certain students on campus that calls for disinvitations of speakers, calls for microaggression policing and bias response teams are a new sort of institution built on campus to police speech. Literally, in some cases with actual police.

So, as old problems go away, or are ameliorated so to speak, new problems come up. Do you think we’re in a worse position now than we were 20 years ago, or do you think it’s just a different challenge?

Harvey: We’re not in a worse position, but it is a different but related challenge. The fact is, that there are so many college administrators right now. There are more college administrators than there are faculty members.

Nico: Yeah, I think that inflection point was something like 2008?

Harvey: Yes. And they are not – The administrators, the bureaucrats, are not about to give up the need for their services. They’re not about to go to the unemployment line. And so, they invent new needs for themselves. They manage to establish new rules, new procedures, new orientation, a need for orientation. How many administrators are busy just dealing with orientation? So that gives them employment, it gives them power, it gives them a sense that they’re needed.

So, the problem changes. The problem that FIRE originally jumped in to solve, we’ve had tremendous success. But, you know, the bubble – the balloon balloons somewhere else. And so, we haven’t yet conquered the endless thirst of administrators for power and for running other people’s lives.

Nico: The students – Now, I haven’t been at this nearly as long as you have, but I started in 2010 as an intern at FIRE and then of course became a full-time staffer in 2012. But the years between 2015 and 2017, perhaps kicked off with the protests at the University of Missouri, and then the famous protest against Nicholas and Erika Christakis at Yale kicked off, it seemed like, a period of intense focus on these issues.

I would be approached by people who had no interest in these issues asking me about them, no previous interest in these issues asking me about them. Then you started to of course see the violence on campus. The attacks when Charles Murray went to Middlebury or the attacks, the fire-bombing at Berkeley. Was that something that had ever been seen on campus in the last 50 years, or was that a new phenomenon?

Harvey: Well, there was some violence during the anti –

Nico: 70s, yeah.

Harvey: And then the anti-draft, and anti-Vietnam War era. When I was a young lawyer, it was my first year of law practice, there was the situation at Harvard where the president called in the police and the National Guard to violently oust the students who took over University Hall at Harvard.

Nico: Was that a protest of the draft or the war?

Harvey: Yeah, it was protesting the Vietnam War.

Nico: But that seems fundamentally different, protesting a war than protesting speech or a speaker appearing on campus, right?

Harvey: Yeah, but what I was suggesting is that the students protesting against the war was very unpopular with the administrators of colleges. They didn’t like to have the campuses frozen, tied up with protestors protesting a war. The Vietnam War posed a real problem for college administrators and they thought that they had to exercise some real strength and real power, including the police power, throw students out of school – So, there was a lot of turbulence over the Vietnam War and I was, as a lawyer, I was involved in representing students who were billy-clubbed, who were expelled for symbolic speech or actual speech.

So, I got into it – it was a period that called for lawyers’ involvement in protecting student’s rights and, to some extent, faculty member’s rights. And so, I was in it from the beginning.

Nico: Yeah, now FIRE is a lot bigger than it was when you first founded it, of course. You have almost 50 staff members now. In your wildest dreams, did you ever anticipate that FIRE would become a 50 person staff with offices in Washington D.C. and Philadelphia?

Harvey: Of course not, Kors and I handled everything ourselves in the beginning and ultimately, we got a lawyer and an executive director, and the organization grew like topsy. And I have to say, in contrary to the reason other college’s and university’s administrative staffs have grown, is not because the bureaucrats at FIRE wanna make more work for themselves. It’s because the need, there was this genuine need and the small staff couldn’t handle it. And the bourgeoning, the bourgeoning violations of student’s rights and faculty member’s rights, both due process and free speech, was such that we constantly had to add staff. We had to constantly fund raise.

Fundraising became crucial, because without the funds the organization just couldn’t handle the volume of violations and the core of the problem.

Nico: Looking forward, what do you hope to see? And what do you expect to see? Two separate questions.

Harvey: I hope to see the same thing that I expect to see. We are going to win, and the reason we are going to win is the absurdity of the position taken by our opponents. The notion that on a college campus, people have the power, and the right, and the prerogative to say to somebody else, “Shut up.” It is so absurd that ultimately, we will prevail, but I no longer make predictions as to when. I do hope that if I’m not around when that day comes, when victory comes, that FIRE has the good sense to go out of business. If the problem dissipates, then we should go out of business.

You know, one thing that always occurs to me whenever I talk about this issue, of FIRE going out of business, I remember when I was a kid there was the March of Dimes. It was a charity that raised money for polio and to help treat polio. They paid for iron lungs and they paid for research, medical research. Well, low and behold, polio got conquered. A vaccine was invented that prevented polio. Polio, at least in this country and in most parts of the world now, polio is gone.

So, here you have this organization that was built up to raise money in order to cure polio, and Dr. Salk comes along and invents a vaccine that prevents it, and the organization is now faced with an existential threat. It’s got nothing left to do, so its gonna have to go out of business. Oh, no. There was a bureaucracy, there was a fundraising apparatus, and they decided that they were going to go into other diseases. And I always thought to myself, “If they had any integrity, they would’ve done exactly –” They did their job; they did a fabulous job of funding research to cure this plague of an illness that paralyzed countless numbers of little kids.

Just pitiful seeing these kids in iron lungs, your heart went out. But they – mission accomplished. Have the good sense and the grace to go out of business, instead of retuning the bureaucracy, and my hope is that FIRE does not follow this foundation as a mode. That when we accomplish our mission, we dissolve. Mission accomplished, and we all can go back to doing better things.

Nico: You’ve accomplished a lot in your career, where does the co-founding of FIRE stack up there?

Harvey: I think it is the thing for which I’m most proud, because it affects the most people and it helps keep healthy institutions, higher education, that I feel are incredibly important for a well-functioning, democratic and free society. Without independent universities, freedom is in real trouble, the country is in real trouble. Education is crucial and part of education requires academic freedom. Without academic freedom, it’s not education, it’s indoctrination.

So, I consider that to be central and I consider my contribution to an organization to protect that incredibly important asset, to be the think I’m most proud of. I’ve won a lot of cases, criminal cases, in my career. When you win a criminal case, you get one person out of a real jam, but that’s about it. Oh yeah, their children appreciate it, and their relatives, and their mothers and fathers appreciate it. But it’s a pretty small group. Sometimes you get a case in the appellate court or the Supreme Court where you can make a bigger difference in the law, but it’s in some small little area.

But FIRE was an accomplishment which I’m most proud. It’s the subject of my first book, co-authored with Alan Charles Kors, and my subsequent books have been about criminal law. But it’s the thing I’m most proud of, I would say. So, this organization really does my heart a lot of good. On the one hand I’m sorry to see it still exists, but on the other hand I’m most proud of it. This is a – Imagine, I live with these opposed views bouncing around in my brain?

Nico: Well, I think we’re gonna have to leave our listeners with that, too. Harvey, thank you so much for chatting with me today.

Harvey: Thanks for having me.