Not so long ago, I offered what I hope was a smarter-than-average critique of the Foundation for Individual Rights and Expression — a low bar, given the quality of criticism the organization typically receives. My own effort focused on three key areas: FIRE’s treatment of religious schools, its Spotlight Database, and its relationship with lawmakers. My intention was to offer some constructive criticism of an organization I respect.
Last week, FIRE responded. Mounting a strong defense of its record, Executive Vice President Nico Perrino argued that my critique was mistaken both in matters of fact and interpretation. I know Perrino a bit and he made his case with characteristic thoughtfulness and care. For that, I am deeply grateful.
However, I must disagree. Perrino got it wrong and my criticism stands. Let me explain why.
First, Perrino objects to criticism of what I call FIRE’s “hands off” approach toward institutions that do not promise free speech, religious colleges in particular. To hear him tell it, FIRE would love for these institutions to change their ways, but it must respect their constitutional right to censor. Unless students or faculty have some clear legal or contractual right to free speech, or receive some rhetorical gesture in that direction, there is nothing FIRE can do.
Perrino is wrong. True, FIRE cannot unleash its litigation department absent a formal promise of free speech, but its public communications team need wait for no such cue. Nothing is stopping FIRE from issuing news releases, sending sternly worded letters to campus administrators, or doing whatever else it can to change the culture of speech on these campuses. Colleges care about what FIRE says. Why not exploit that?
To see what I have in mind, consider Brigham Young University, an institution that earlier this month effectively fired two instructors for their stance on homosexuality. PEN America called this act a “grave threat” to academic freedom and noted that while BYU’s leaders have the constitutional right to censor faculty, that right “does not preclude criticism of their decision or exempt them from the tenets of academic freedom.”
Contrast this with FIRE’s response — which does not exist.
And it is not as if FIRE needs to wait for a constitutional opening before it can denounce a university. There’s nothing unconstitutional about cancel culture, but that hasn’t stopped FIRE from speaking out about the phenomenon frequently. I mean frequently, at great length and on many, many occasions. It has also fielded a national survey on cancel culture, assembled reading lists, and recorded podcasts. Hell, it even ran an advertisement denouncing cancel culture in The New York Times Magazine.
If FIRE wanted to take a more aggressive stance against speech restrictions at religious colleges, it could. And I hope it will. A culture of free speech, which as FIRE knows extends well beyond the Constitution’s reach, is worth fighting for.
Next, I argued that FIRE’s Spotlight Database, which evaluates universities’ speech codes, is awarding “Green Light” ratings to institutions that do not deserve it. This is especially true for those in states with censorious laws against critical race theory — states like Florida, which passed its infamous Stop WOKE Act in March. Perrino defends the Spotlight Database and claims that it is handling Florida’s law appropriately. Unfortunately, he is not persuasive.
First, Perrino seems to be under the impression that the Stop WOKE Act was never incorporated into any college’s speech code. “What Sachs fails to appreciate,” he writes, “is that in order for the [Stop WOKE Act] to be enforced against students and faculty members, its mandates must be written into campus policies and acted upon by administrators.” If FIRE’s database fails to award any Florida college a “Red Light” rating, Perrino writes, perhaps it is because they “heeded our guidance to not write speech restrictions into campus policy, particularly in light of our pending litigation.”
Would that this were so. The truth is that many Florida colleges, including those in the database, have adopted formal, written rules to implement the Stop WOKE Act. But don’t take my word for it. FIRE itself says as much in its motion seeking a preliminary injunction against the law (see pages 27 to 31, where it reels off a list of such colleges). For example, here are the University of Florida’s rules, which FIRE included as an exhibit in its motion. It’s a detailed document, laying out across six pages what faculty are and are not permitted to say. It also comes on top of a university presentation on the law so alarming that FIRE spent an entire article condemning it. Similar documents or presentations were issued, at a minimum, by the University of South Florida, North Florida College, St. Petersburg College, Florida State University, Florida A&M University, Florida Polytechnic University, and Valencia College.
So on the simple question of whether Florida’s public colleges have developed formal rules to implement the “Stop WOKE Act,” the answer is clearly yes. Yet is FIRE still awarding some of these institutions a Green Light rating? Also yes. The evidence is indisputable.
But maybe this entire line of critique is a red herring. As Perrino points out (and as I noted in my article), FIRE’s Spotlight Database doesn’t measure restrictions on faculty speech. It focuses only on student speech. And if that’s the case, maybe it doesn’t matter that the database fails to take the Stop WOKE Act into account.
Unfortunately, FIRE’s own argument in court makes this defense untenable. That’s because according to its lawyers, the Stop WOKE Act does more than simply violate the First Amendment rights of faculty; it violates the rights of students as well. In fact, one of the plaintiffs in FIRE’s complaint is Samuel Rechek, an undergraduate student at the University of South Florida and president of its First Amendment Forum, or 1AF club, a student organization focused on free speech and debate on campus. If the Stop WOKE Act is allowed to be enforced, FIRE told the judge, Rechek and his fellow 1AF members will lose their freedom of speech.
The club’s members “cannot engage in a full and frank discussion of contested matters — including race and its role in both history and modern society, among the most fraught topics in the United States — if they fear that a professor’s response to their questions may be reported to administrators, an Inspector General, or state lawmakers for disciplinary action,” the motion states.
There’s more. FIRE also argued that its student plaintiff has a constitutional right under the First Amendment to receive information — that is, to access or be an audience for speech. The Stop WOKE Act threatens this as well, precisely the sort of thing that FIRE’s Spotlight Database is supposed to capture. For instance, the database downgrades universities that impose harsh security fees on students wishing to invite a controversial speaker to campus. Such a policy does not harm the students’ own ability to speak, but it does harm their ability to hear the speech of others. The Stop WOKE Act is no different.
Taken as a whole, the picture we are left with is clear. First, rules designed to carry out the Stop WOKE Act have been formally adopted by several public colleges in Florida. FIRE has argued as much in court. Second, those rules violate the First Amendment freedoms of students and necessarily chill their speech. Again, this is FIRE’s own analysis.
So why, then, is none of this reflected in the Spotlight Database? Surely not because, as Perrino suggests, FIRE is simply waiting to see first whether the colleges could be persuaded to mend their ways. FIRE already made such an attempt at persuasion last April. It was ignored.
Nor can this be excused as a quirk of the calendar. The University of Florida issued its Stop WOKE regulations back in early May. According to the Spotlight Database, though, FIRE updated the university’s ranking in mid-October, nearly six months later. If FIRE intended for its database to reflect the Stop WOKE Act, it had plenty of time.
No, the actual root of the problem — and what elevates this critique from mere nitpicking to something more significant — is that it is just one example of a more general phenomenon: FIRE has a habit of missing the forest for the trees. It focuses so closely on the microclimate of each individual college that sometimes it forgets to take the temperature of a state as a whole. And just because FIRE gives a college a clean bill of health does not mean the temperature isn’t chilling.
Lastly, I chided FIRE for making the tactical decision some years ago to partner with legislators looking to influence campus speech. For instance, in Wisconsin, South Carolina, and South Dakota, the organization worked with lawmakers to craft legislation on critical race theory. FIRE’s intent is noble. By intervening in the legislative process, it hopes to stop unconstitutional bills before they become law. However, my fear is that lawmakers view this collaboration as a kind of endorsement, a signal that they have FIRE’s stamp of approval. This results in more bad laws, deeper politicization of higher ed, and an overall worse climate for free speech.
That’s my theory, anyway. Perrino disagrees, arguing that these partnerships are an essential tool for FIRE and that without them, “the situation for free speech on campus would be much worse.”
Let us hope he is right, because there is very little to celebrate thus far on the legislative front. Since my critique was published, 11 more bans on critical race theory have been introduced by state lawmakers, two of which are blatantly unconstitutional. And recent events show that even the constitutional ones are ripe for abuse.
We’ll never know for sure what would have happened if FIRE had chosen a different approach. But in the absence of certainty, I want to suggest a compromise. When lawmakers seek to draft a bill to strengthen free speech — for instance, a Campus Free Expression Act — FIRE should not hesitate to pitch in and share its expertise. But when what they want is a law that weakens or restricts free speech, FIRE’s position should be one of unremitting opposition. No effort should be made to “improve” a bill with malign intent. Too often, the resulting legislation will still be terrible — and also stand a greater chance of passage. FIRE should condemn such bills and, if necessary, vow litigation. Otherwise, it should stay out. The risk to its mission and reputation are too great.
