The Foundation for Individual Rights and Expression (FIRE) is blessed with terrible critics. As its public profile has risen sharply in recent years, so has the volume of criticism against it. Unfortunately, those critiques are almost uniformly bad.
With limited exceptions, critics of FIRE tend to rehearse the same tired arguments: that it receives right-wing money (so what?), often attacks the campus left (can you blame them?), and is uncharitable to college administrators (rightly so). If this was the best that FIRE’s critics could offer, the group would deserve our unqualified support.
But better criticisms do exist. Here are just a few, listed in order of least concerning to most.
The Religious Exemption
FIRE has a policy of evaluating or ranking only institutions that promise academic freedom and free speech. That means many colleges, especially religious ones, fly under the radar. They are seen only sporadically in FIRE’s press releases, are ranked separately, and never appear in its widely publicized annual “Worst Colleges for Free Speech” list.
This hands-off approach is not unreasonable. As FIRE’s president Greg Lukianoff explains:
Those who don’t agree with Liberty University’s values may simply choose not to attend or teach there. But free speech advocates like FIRE should not attack Liberty for utilizing its own First Amendment freedom of association rights and being clear about its promises and values to students and faculty. That’s our pluralistic democracy at work.
Lukianoff is wrong. Yes, as an organization that celebrates the First Amendment, FIRE should absolutely defend the right of religious colleges to censor their students and faculty members. But that same celebration of the First Amendment should also compel it to promote free speech and criticize those who deny it. There is no tension between these stances, something that Lukianoff is quick to point out when the topic is, say, Big Tech censorship.
It also does not seem quite right to claim, as Lukianoff does, that a student who enrolls in a college that explicitly denies free speech has “no one to blame but him or herself.” Consider the position of an 18-year-old student at Brigham Young University, fresh out of high school and living away from home for the first time. When that student discovers their speech is censored and professors muzzled, what ought to be FIRE’s response? That the student should “simply choose” to go elsewhere? That just isn’t realistic.
Moreover, we should bear in mind that religious colleges are fully integrated into academe. There may be a clear legal distinction between them and public colleges, but no such distinction exists when it comes to something like academic research. The scholarship produced at BYU finds its way into the same journals, the same conferences, and the same policy white papers as whatever comes out of Cal State or UMass-Amherst. BYU does not occupy some separate space quarantined from the rest of academic life. It is right in the thick of things, shaping our fields and influencing public opinion. If its students and scholars are being muzzled, why let that slide?
To be fair, some at FIRE are aware of these problems. Sarah McLaughlin and Laura Beltz also seem to find their organization’s position unsatisfying, and acknowledge that it puts students at places like BYU in a tough spot. Karly Shepherd, a FIRE intern who is herself a student at a private religious university, feels similarly. She expresses frustration with the “false dichotomy” her college and others like it create between open inquiry and religious education — a dichotomy that FIRE’s policy commits it to protecting.
FIRE should take students like Shepherd more seriously. If free speech in education is worth promoting, it is worth promoting everywhere. Yes, religious colleges have a constitutional right to censor, if they wish. But let’s not make it easy for them.
A Confused Rankings System
A more significant critique involves FIRE’s approach toward college rankings. One of its marquee products is the Spotlight Database, which rates the speech policies at nearly 500 colleges and universities according to how well they protect student free speech. The best institutions receive a Green Light rating; the worst get a Red Light. This information is then incorporated into another widely publicized FIRE product, its annual College Free Speech Rankings.
It is all meant to sound very scientific, but what does it say about these databases and rankings that they are blind to the single most significant assault on campus free speech of the decade?
I’m referring to so-called CRT (Critical Race Theory) bans like Florida’s Stop WOKE Act, which became law in April 2022. According to FIRE’s own lawsuit against it, the law violates the constitutional rights of both faculty members and students at public Florida colleges. For faculty members, it prohibits “a sweeping amount of protected speech related to scholarship or teaching, or classroom speech over matters of public concern.” And for students, it violates their constitutional right to receive information unfettered by a “pall of orthodoxy.”
Yet incredibly, of the 12 public universities in Florida that FIRE ranks, none receives a Red Light rating for its speech policies. In fact, the University of Florida actually has a Green Light ranking, despite its adoption of internal rules to carry out the Stop WOKE Act. Florida State University also has a Green Light and is ranked over all as one of the best institutions in the country in terms of student free speech. Yet it too has established an internal policy to observe the law, as has every other public college and university in the state.
I don’t believe this circle can be squared. If FIRE meant what it said about the Stop WOKE Act in court, then no public institution of higher learning in Florida can promise free speech. Certainly, none deserves a Green Light.
Just to forestall one objection: It is true that a federal court has issued an injunction against the portions of the law applying to higher ed, a victory due in no small part to FIRE’s efforts. But this ruling was issued in November, one month after FIRE last updated its Spotlight Database and released the College Free Speech Rankings. And the injunction is only temporary, pending Florida’s appeal, meaning that the law and the institutional policies to follow it remain in place.
Similar problems exist with how FIRE ranks universities in Tennessee, which also passed a CRT ban that FIRE finds alarming. So what is going on here? Maybe it’s just a simple lack of communication between offices. But the most likely — and, I feel, more worrying — explanation is a failure to appreciate the broader political context. FIRE does excellent work scrutinizing the events, policies, and trends on each individual campus. But those campuses do not operate in a vacuum. Sometimes FIRE loses sight of that fact.
A Dangerous New Tactic
But the most serious criticism of FIRE involves a shift in tactics — a shift that may have contributed, albeit inadvertently, to the wave of CRT bans itself.
For much of its history, FIRE had a policy of resisting any attempt by lawmakers to interfere in college affairs, especially on matters related to free speech and academic freedom. It wasn’t an absolute rule. For instance, in the mid-2000s, FIRE supported efforts by state legislators to pass laws bolstering student press rights. But in general the organization’s stance was one of wary skepticism. This was and continues to be the policy of the American Association of University Professors, which views such legislation as a threat to colleges’ institutional autonomy.
But beginning in the mid-2010s, FIRE began to change its tune. States across the country were rushing at the time to pass so-called Campus Free Expression Acts, and lawyers at FIRE decided that since lawmakers were going to pass these bills anyway, the smart move was to drop their opposition, roll up their sleeves, and help to improve the legislative text.
Joe Cohn, FIRE’s legislative and policy director, explained this shift in a 2017 blog post on Tennessee’s Campus Free Speech Protection Act:
We have long been hesitant to rely on legislatures to address concerns regarding free speech or academic freedom, and we, too, are wary that legislative involvement risks politicizing these issues and reducing faculty and student power. Over the last few years, however, our view has changed. Staying on the sidelines would leave legislators — who are increasingly focused on authoring bills addressing campus issues — without our input. If FIRE and other organizations committed to the nonpartisan defense of faculty and student rights do not interact with lawmakers, the resulting legislation will only be more likely to reflect partisan politics, not sound public policy. In our experience, engaging legislators with regard to campus civil liberties has created productive working relationships that have led to solidified protections for students and faculty.
This is not an unreasonable calculation. And in some cases, it has paid off handsomely. For instance, FIRE’s collaboration with Tennessee legislators yielded a much better law. As John K. Wilson noted at the time on the AAUP’s Academe blog, Tennessee’s 2017 Campus Free Speech Protection Act “is, to my complete shock, a really good law that strongly protects free speech on campus.” As Wilson acknowledged, FIRE’s advice surely played a decisive role.
But with the benefit of hindsight, I wonder now if it made a mistake. Everything that Cohn warned about — the politicization of academic freedom, the erosion of faculty and student rights — has come to pass. Lawmakers now feel very comfortable legislating higher ed, dismissing all objections as ivory-tower gatekeeping. Some have gone so far as to argue that faculty speech is actually a form of government speech and that what professors say in class is ultimately up to the state.
Meanwhile, what have Campus Free Expression Acts like Tennessee’s accomplished? It is very hard to say.
Again, FIRE’s new policy is not without its logic. Without its intervention, these bills might still have passed and would almost certainly have been worse. And FIRE does not hesitate to present full-throated and principled opposition to any bill that clearly violates the Constitution.
Still, it is hard not to wonder what might have been. What if instead of endorsing legislative interference, FIRE had denounced it? The organization commands genuine respect on the political right, currency it earned in its years of defending campus conservatives. Perhaps it could have used that good will to stop state lawmakers when there was still a chance. It might have persuaded them that whatever concerns they had with higher education, legislation was not the answer.
We’ll never know. The opportunity was lost.
Thoughtful criticism of FIRE has never been more important. In June the group announced that it would be expanding its focus from higher education to American society in general. Symbolic of this was its decision to change its name from the Foundation for Individual Rights in Education to the Foundation for Individual Rights and Expression. Since then, it has gone on a hiring spree, adding dozens of new lawyers, fund raisers, program officers, outreach coordinators, copy editors, and more.
Like any organization of its size and scope, FIRE is a multivocal group. There is no single party line, and in my conversation with its staff members, I have been impressed by their willingness to disagree with leadership and criticize its decisions. Diversity of thought at FIRE is real.
But as an organization, it has its blind spots. Now is the time to point them out — not with the mockery or contempt that characterizes so much of the commentary on FIRE, but with care and a degree of respect. If we are going to defend campus speech — which is under severe threat today from many quarters — we need to do it right.
