FIRE's 'Guide to Free Speech on Campus': A Review

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Academic freedom is the lifeblood of higher education. Freedom of thought, open inquiry, and free discourse weave together to become the life-giving circulatory system of modern academia. Free speech is the beating heart at the center of academic freedom. But in the current collegiate climate, we’re faced with questions. How do we keep the heart of academic freedom beating? How do we keep alive the prospect of a great education — with all its adventurous thinking and vigorous debate?

Enter stage left: FIRE’s Guide to Free Speech on Campus (2012). Penned by former ACLU employees and published by one of the strongest advocates for free speech rights in America — the Foundation for Individual Rights in Education (FIRE) — FIRE’s Guide to Free Speech is an important instrument, one that all free-speech advocates should have in their tool belt. This brief text is an introductory class on campus free speech. If you face harassment or reprimand at school because of your social, political, or religious views, this book is a must have. Even if your personal speech rights aren’t immediately threatened, you should understand those rights so you can effectively voice your beliefs in the public forum as well as safely explore the range of ideas in your area of study.

Academic freedom and freedom of speech are open fields of exploration, but they do have fences and pitfalls. Knowing where obstacles lie will save you embarrassment. This book helps you negotiate a rugged landscape.

Who is FIRE?

Cover image for FIRE's Guide to Free Speech on Campus
FIRE's Guide to Free Speech on Campus
Philadelphia, PA: Foundation for Individual Rights in Education, 2012.

FIRE’S Guide to Free Speech on Campus functions as a comprehensive introductory manual, a crash course in the history, nature, and operation of free speech rights on American university campuses. But to truly understand this book, it is important to understand its authors.

Founded in 1999 in Philadelphia by ACLU lawyer Harvey Silvergate and University of Pennsylvania distinguished professor Allan Charles Kors, the Foundation for Individual Rights in Education has remained at the forefront in protecting academic liberties. FIRE’s current president and CEO, Greg Lukianoff, was an intern with the ACLU before practicing law in Northern California. FIRE’s staff includes more lawyers than most law schools and, collectively, they’ve written enough books to fill a small library. Hailing primarily from Washington, DC, and its environs, the FIRE staff and advisors are a cast of politically astute and media-savvy Constitution hawks. They show no specific party loyalty, although the organization’s philosophy has a distinct aroma of libertarianism and secular humanism. Otherwise, the group is religiously neutral, constitutional, and humanitarian — neither progressive nor fundamentalist, but studiously principled about individual liberties.

With this savvy swarm of lawyers, FIRE operates primarily as a legal defense group specializing in student and professor civil rights. Among their more than 450 different cases, free speech rights litigation predominates. With such an extensive and focused legal identity, FIRE has become a media darling for all things “free speech”-related, scoring dozens of radio and TV interviews, ranging from Fox News to MSNBC and everything in between.

What Is This Book?

The text of FIRE’s Guide begins with notes before launching into an orientation on the free speech debate, “Introduction: Free Speech Then and Now(pp. 3–27). This introductory section gives a brief overview of the philosophy of free speech (courtesy of John Stuart Mill; pp. 6–8), followed by a case history for free speech in the United States spanning subjects such as sedition (p. 10), the Civil War and the slavery debate (pp. 11–13), the Red Scare (p. 14), flag-burning (p. 19), campus speech codes (p. 19), and even cyberbullying (pp. 25–26).

The next section, “Free Speech: The Basics(pp. 28–150), is the meatiest portion of the book, outlining point-for-point how free speech has been legally defined as a civil right, and how it applies to students in the modern college and university setting. Key legal distinctions divide the rights pertaining to K–12 students and college students (pp. 50–56). As the text notes, the minor status of K–12 students subjects them to paternalistic legal restraints. Laws treat them like kids because, well, they are kids. After the age of eighteen, or generally corresponding with the end of high school, young people are deemed “adults” in the eyes of the law, with wider rights of speech.

Another critical distinction divides public and private colleges (pp. 57–70). Private schools have more legal freedom to limit speech than do public schools. Private schools may stipulate different restrictions in keeping with their self-stated values, charters, and rulebooks. In general, students have more freedom of speech at a public college than at a private one.

This “Basics” section also points out the fences demarcating the full field of free speech. Though limitations are rare, there are important boundary lines that even the staunchest free speech advocate must respect.

Unprotected speech includes:

As established through constitutional law and fortified through precedent cases in US courts, these boundary cases also explain why free speech opponents phrase their grievances in terms of “violence,” “triggers,” and “harassment.” By casting certain speech in these lights, legal authorities are likelier to see it as unprotected speech.

Case studies comprise the next section, “From Law Books and Theories to Practice: Free Speech on Today’s Campuses(pp. 151–220). This section introduces and discusses twenty-three realistic scenarios, all based on actual free speech cases. These examples flesh out what free speech looks like and show the ways in which speech is constrained. Notice also that these cases illustrate what legal precedent has defined as either legitimate or illegitimate constraints on free speech.

The closing pages end with a brief conclusion, “Five Steps to Fighting Back(pp. 221–6), followed by a case appendix (pp. 227–9), and additional information about FIRE (pp. 230–44).

Why Is This Book?

It should be noted that this book is action-oriented. It’s a guidebook, written with a vision for direct application. In this regard, the Guide to Free Speech is not neutral. It speaks with a vested interest.

In one sense, this book is an advertisement, drawing attention to the work of FIRE by raising awareness for the many ways in which a FIRE group might serve students’ or professors’ needs on a local campus. It’s a paid endorsement for its publisher, fair enough. The group believes in itself, and it has every right to advertise its services, publish, and promote its cause. There’s nothing wrong with that, but it’s not neutral.

Neither do the authors pretend to be neutral. This book has an agenda. This is not disinterested commentary by authors who feign blasé tolerance or robotic objectivity: they are lawyers and legal experts arguing their case, no less biased than any prosecuting attorney in the courtroom. Readers should note this book is written in defense of a robust right of free speech. Merely academic works on the subject of free speech may attempt neutrality, treating opposing views as roughly equal in merit. Not this book.

Understand too that the authors argue only for a qualified sense of academic freedom. While FIRE clearly supports robust free speech, the authors are not anarchists. They maintain a realistic view of this basic right's operation. Every human right and civil right has intrinsic boundaries, at least where they infringe upon other people’s rights. Free speech is no exception. Even libertarian views of First Amendment law admit that some speech isn’t protected, such as shouting “Fire!” in a theater, inciting a riot, live threats of violence, heckler’s vetoes (i.e., shouting down unwanted speech), child pornography, extortion, sexual harassment (i.e., hostile workplace), and treasonous forms of conspiracy. In general, when people say “free speech,” they don’t mean these examples. This book is no exception. While libertarian in tone, it is not chaotic. Free speech, like every civil right, is a qualified one.

Undoubtedly, the politically incorrect arguments in this book will ruffle feathers. For example, cited examples of key US free speech cases defend pornography, explicit lyrics, war protests, and hate speech. Likewise, readers should expect no weepy-eyed sympathy for “safe spaces,” “trigger warnings,” or bans on “hate speech.”

Few people denounce the concept or merits of free speech. It is one of the more readily recognized and universally celebrated of civil rights. But hate groups, fools, and fearmongers have the same free speech rights as heroes, saints, and sages. Speech that heals may also wound. FIRE embraces the unseemly implications of free speech, because the risks are the cost of liberty. Their position:

“[S]heltering students from speech that might offend them is patronizing and paternalistic. No one who claims that groups of students are too weak to live with the Bill of Rights or with freedom is their friend” (p. 159).

To further sharpen this point, it’s worth noting the Guide to Free Speech discusses the much-debated issue of “hate speech.” No US laws currently ban hate speech, which is not the case in much of Europe. Those nations have laws against inciting riots, extortion, and physical threats against people, with discrimination in many situations on the basis of race, sex, color, or creed also illegal. In the US, however, overtly hateful speech remains legal. The logic seems to be that constraints placed on hate speech do not merely constrain false and hateful claims, but they have a chilling effect on free inquiry, stifle public debate, and arbitrate between permissible orthodoxy and prohibited heresy — edging dangerously close to “established religion.”

Rather than debate the merits and failings of hate speech legislation here, simply know that FIRE’s perspective on hate speech will divide readers into fans and enemies of the book.

For those readers sympathetic to anti-hate speech legislation: while strong on argumentation and legislative rigor, this book is weak on compassion, showing little concern for the feelings and the subjective emotional effects of abusive language and other forms of harmful speech. To them, it may come across as naïve and heartless.

For libertarians, and committed free-speech advocates, almost any constraint on free speech is perceived as a march toward fascism/autocracy/big-brother/etc. Hate speech legislation becomes the sharp end of a wedge separating citizens from their civil rights. For progressives and conservatives, however, there may be more wiggle room on which kinds of speech or expressions should be banned (e.g., flag burning? street preaching?).

Prized by the leading political parties, free speech nonetheless creates disputes throughout US politics. In this way, every new generation faces another challenge demanding clarification or restriction on First Amendment rights. Those challenges may be Vietnam War protests in the 1960s, pornography in the 1970s, sexual harassment in the 1980s, explicit lyrics in the 1990s, or homophobia from 2000 to today. In all of this, FIRE sides with libertarian free speech. It adamantly defends the free speech rights of noble and ignoble defendants alike. It defends popular and unpopular speech alike. It protects orthodoxy and heresy equally.

This book will not settle the hate speech debate, but it may persuade a few readers to value free speech more than they did before. It’s main purpose, however, is to present the legal case for free speech, empowering students and teachers who may face reprimands from their school for saying what they believed to be true, or telling a racy joke, or exercising artistic license in an unpopular way, or disagreeing with a school program or policy.

The Guide to Free Speech is a worthy book recommendation — even for people who disagree with its general premise. It succeeds as an introductory course on free speech legislation. Those who would still suggest morally driven limitations on free speech would do well to understand what kind of legal history undergirds free speech rights on modern campuses. Friends and enemies of free speech alike can find within these pages a helpful case history and clear exegesis of their First Amendment rights.

Closing Thought

Normally, we can say of any book: “this content is not for everyone.” Narrow scope, stylistic differences, and a range of other factors limit the realistic audience for most any given work. But this is a special case. This book is for everyone. It’s not really a matter of taste, or opinion. It’s a well-argued, reasonably thorough, evidentially sound, humanitarian defense for a basic civil right. Just as civil rights are for everyone, this book applies to everyone as a defense of and call to action for our First Amendment rights.

People may disagree on the merits of the First Amendment, but it is because of the First Amendment that we have the liberty to disagree.

Note: The full text of FIRE’s Guide to Free Speech on Campus is available online in full both to read or to download in various formats.

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