The expansion of the Foundation of Individual Rights in Education marks the end of an era, when free speech issues were the sole province of American liberalism
After years of planning, the Foundation for Individual Rights in Education, better known as FIRE, announced a major expansion Monday, moving “beyond college campuses to protect free speech — for all Americans.”
FIRE was the brainchild of University of Pennsylvania history professor Alan Charles Kors and Boston civil liberties lawyer Harvey A. Silverglate, who co-authored the 1999 book, The Shadow University: The Betrayal of Liberty on America’s Campuses. To the modern reader the book reads like a collection of eccentric cases of students and teachers caught up in speech code issues, most (but not all) being conservative.
To take just one of countless nut-bar examples, Kors and Silverglate told the story of a professor in San Bernardino reprimanded for violating sexual harassment policies because, among other things, “he assigns provocative essays such as Jonathan Swift’s A Modest Proposal,” as the court case later put it. This was apparently the “cannibalism” portion of the accusation that he delved into such subjects as “obscenity, cannibalism, and consensual sex with children.”
The book triggered such an overwhelming number of responses from other faculty members and students that the pair decided to set up an organization to defend people who found themselves in tricky speech controversies on campuses. They soon found they had plenty of work and, by 2022, enough of a mandate to expand beyond colleges and universities into America at large. According to FIRE CEO Greg Lukianoff, as quoted in a Politico story, the group has already raised over $28 million toward a $75 million “litigation, opinion research and public education campaign aimed at boosting and solidifying support for free-speech values.”
As noted in another story I put out today, FIRE will be doing a lot of stepping into a role semi-vacated by the American Civil Liberties Union. I spoke with Nico Perrino of FIRE, producer and co-director of the excellent documentary about former ACLU chief Ira Glasser (see review here), to ask what the expansion would entail:
Matt: What was the genesis of FIRE and how has it evolved?
Nico: FIRE was founded in 1999 by two Princeton classmates Harvey Silverglate, a left-leaning, civil liberties attorney out of Cambridge, Massachusetts, and a conservative-leaning professor, Alan Charles Kors, who teaches the Enlightenment, or taught the Enlightenment, at the University of Pennsylvania. They enjoyed their college experience, but were dismayed by the rise of speech codes in the 1980s and ‘90s, so they wrote a book called The Shadow University.
After they published that book, they were flooded with requests from students and faculty members for help to help defend their free speech, due process, and free assembly rights.
The first case was at the University of Pennsylvania. This was even before FIRE was founded, but it’s the case that inspired The Shadow University and therefore inspired FIRE. There was a student, named Eden Jacobowitz, who was studying in his dorm room at the University of Pennsylvania. There was a group of students outside making loud noises, it was dark out, and he screamed out his window, “Shut up, you Water Buffalo!” It became known as the Water Buffalo case. The students outside ended up being black students, and the accusation against Eden was that he was shouting a racial slur. It turns out that he was Israeli, or devoutly Jewish, and “water buffalo” was a translation of a word, behayma, which in Hebrew means a loud or unruly person. Kors, our co-founder, came to his defense and became a cause célèbre across the United States and vindicating the rights. That set the stage for what we were going to do at FIRE more generally.
Over the years, we’ve defended all sorts of speakers. As you can imagine, popular speakers don’t need free speech protections, so we often defended speakers at the margins. People like Ward Churchill, for example. [Editor’s Note: Churchill wrote a book, Some People Push Back, that described the 9/11 hijackings as “counterattacks” to “genocide,” the victims being “little Eichmanns.”]
We defended a student at Valdosta State University, for example, who criticized his University president’s effort to build a parking garage on campus. A Buddhist environmentalist student who thought the president shouldn’t be encouraging more parking on campus, or more driving on campus, and should invest rather in public transportation. He created a collage that described a “Ronald Zaccari Memorial Parking Garage.” Well, Zaccari was the name of the president, who thought it was a threat, the idea being that the “Memorial” in the collage meant that he was going to die.
Matt: He thought “Memorial” was referencing his future non-existence?
Nico: He placed an expulsion note under Hayden Barnes’ dorm room door, and told him he needed to be out of the dorms. If you think someone’s actually a threat, you probably don’t slip a note under their door. We ended up defending Hayden Barnes, this is 2007, and taking his case to court and winning a $900,000 judgment in that case.
Matt: Didn’t you also do that crazy case in Indiana, about the janitor reading the book about Notre Dame and the Klan?
Nico: Yes. We defended the case of Keith John Sampson, a janitor at Indiana University-Purdue University, Indianapolis, who was reading a book called Notre Dame vs. the Klan during his lunch break. He was working his way through school as a janitor. Someone saw, on the cover of the book, burning crosses and reported him to the University administration who found him guilty of racial harassment. The book, of course, was about how Notre Dame defeated the Klan when they marched on the campus. The Klan, people often forget, also hated Catholics, in addition to hating blacks. Someone literally judged the book by its cover. The University found him guilty of racial harassment for reading it. Funny thing is — well, the maybe not so funny thing is — the book was found in the University’s own library.
Matt: Functionally, what is this change going to mean?
Nico: Functionally, we’re getting a lot bigger. This is a $75 million expansion into off campus programming. We’ve already raised $28.5 million of that through a three year fundraising effort. We will be litigating and finding cases off campus. Some of those first cases should be coming down the pipe here shortly. Right now, as of this morning, people will start seeing ads defending a culture of free expression on television. You watch CNN, Fox News, MSNBC, you’ll see our ads start running with a high degree of regularity. We’re requesting $10 million in ads through the remainder of the year. Also, there will be billboards across the country in major cities. You’ll see free speech messaging out there. The big thing that we haven’t seen is people out there advocating for a culture of free expression in a visible way. We want to create an organization that people can rally around when threats to free speech exists.
That’s what this effort is about and we want to do so in an unapologetic way. Too often, there’s a lot of throat-clearing before for the defense of free speech. A lot of apologies, it almost comes off as apology for free expression. We’re genuflecting before other values before we can say anything about what we believe is a fundamental human right. FIRE doesn’t take a position on the content of speech. You won’t see us condemn speakers, even the most vile, racist, or offensive of them. For us, it’s enough that the speech is protected or should be protected. We’ll defend it. We’ll argue on first principles. That’s what’s necessary to win.
Matt: This question may be a little uncomfortable: isn’t that what the ACLU is for? Don’t we already have an ACLU?
Nico: The ACLU has 19 different issues in values and defense. It’s necessarily going to be a little bit more difficult for them to determine how they prioritize their work and where it directs its limited resources. Ben Wizner, who runs the ACLU’s Free Speech Project, acknowledged as much in Michael Powell’s New York Times article last year. He said, “FIRE does not have the same tensions.” He said that for the ACLU, free speech is one of 12 or 15 different values.
We don’t have a racial justice program. We don’t have a reproductive rights program. We don’t have a trans rights program. We have a free speech program. We’re not having to deal with the tensions that may or may not exist with free speech and other values. FIRE believes fundamentally that free speech is supportive of all those values, so we’ll make those arguments where necessary, but no, there’s no other values that we have to defend, which makes our work a little bit easier and more focused.
Matt: Last question. Thirty or forty years ago, when George H. W. Bush pointed at Mike Dukakis and called him a card-carrying member of the ACLU, it was pretty firmly understood that speech was primarily a left liberal concern. Is that still true? And if not, is there a perception now that this has become a conservative fixation?
Nico: My sense is that freedom of expression should be core to every political belief. Our ability to express our political beliefs, whole stop, is the thing that makes debate and discussion about all these other issues possible.
I was in a debate with a professor at George Washington University recently, and he was arguing essentially that free speech, all the conversations that you’re seeing in the media about free speech: that speech doesn’t rate when you have, as he was putting it, abortion rights being restricted all over the country, crackdowns on immigration, things of that nature. I said to him, “The only reason those other issues can rate is because we have our free speech right to discuss them.” So freedom of speech is the first right. It’s the matrix. It’s the indispensable condition of nearly every other form of freedom.
As far as whether liberals have retreated from the idea? To a certain extent, yes. I think that’s apparent. All you need to do is look at who’s going after Dave Chappelle. Look at the response to Elon Musk’s decision to purchase Twitter. Netflix CEO, Ted Sarandos, I think, told the New York Times recently, that it’s an interesting time that we live in because free speech used to be a very liberal value, but that was when the censorship was coming from conservatives against Black Panthers, against Lenny Bruce, against anti-war protestors, against civil rights marchers, against —
Nico: Ruth Bader Ginsburg said America is nothing if not a pendulum. When it swings one direction, it always has a tendency to swing back. For a lot of America’s history in the 20th century, it was liberals who were being censored, so they care deeply about free speech. Now conservatives see that they’re being censored or at least feel like they can’t speak. So they are more vocal in support of free expression.
Now, whether they’re consistently supportive of the principle is another discussion, as we’ve seen with what’s happened in Republican legislatures across the country. I think the suggestion is they’re supportive of the principle when it’s convenient for them, but that’s why we need a nonpartisan free speech advocate in this country. An organization that is going to, as Norman Siegel, who was featured in my documentary Mighty Ira, once said, “If I’m going to have anything tattooed on my chest, it’s going to be ‘neutral principles.’” That’s really what we’re advocating for here, that freedom of speech is an insurance policy for us. If we don’t defend the rights of speakers with whom we disagree with, how can we expect our rights to be protected?
Matt: Excellent. Congratulations and good luck.
Nico: Thank you.