The ACLU Just Got Some Much-Needed Free Speech Competition

The group formerly known as the Foundation for Individual Rights in Education (FIRE), which has won plaudits for its advocacy for freedom of speech on college campuses, is now branching out beyond academia as the Foundation for Individual Rights and Expression.

For those who admire FIRE’s work, it’s a welcome move. But it also raises some provocative questions. How will the organization, which sees its expanded mission as championing not only First Amendment rights but a broader “culture of free speech,” expand its work beyond the legal advocacy that has always been its principal focus? And, more controversially, is its expansion in part an answer to the American Civil Liberties Union’s abandonment (or at least, dilution) of its commitment to free speech principles?

First, some history. FIRE was founded in 1999 by a bipartisan duo concerned with the rise of campus speech codes and, more generally, of censorship in the name of progressive values: left-wing Boston attorney and civil libertarian Harvey Silverglate and conservative-leaning University of Pennsylvania history professor Alan Kors (now retired).

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Because of its opposition to students and faculty being sanctioned for running afoul of “political correctness”—and the funding it has received from conservative organizations and donors—FIRE has been sometimes stereotyped as a right-wing group overhyping the threat to free speech from campus progressives. But in fact, while FIRE has handled many cases involving speech suppression in the name of progressive values, it is that rare group which actually means it when it claims to be nonpartisan.

Recently, for instance, FIRE backed Ilya Shapiro, who was suspended as a lecturer at Georgetown University for a tweet criticizing President Biden’s commitment to nominating a black woman for the Supreme Court and widely assailed as racist. (Shapiro—who, for full disclosure, is a senior fellow at the Cato Institute where I am a cultural studies fellow—was reinstated on June 2, but resigned because of what he considered Georgetown’s inadequate support for dissent.)

But FIRE has also advocated (unsuccessfully) for Lisa Durden, an adjunct professor at Essex County College in New Jersey fired in 2018 after a Fox News appearance defending a Black Lives Matter chapter’s all-Black Memorial Day event. And last year, it sued on behalf of Lora Burnett, a history professor at Collin College in Texas who lost her job after a backlash over a mean tweet she posted about then-Vice President Mike Pence. (Burnett won a settlement in January.)

Likewise, while FIRE has challenged college policies requiring faculty to demonstrate allegiance to “diversity, equity, and inclusion” standards that promote specific progressive ideologies, it has also forcefully opposed conservative attempts to curb the teaching of “critical race theory” in college.

Such consistency about free speech is a breath of fresh air in a climate where “free speech for me, but not for thee” (in the apt phrase of the late, great First Amendment champion Nat Hentoff) is the norm.

But can FIRE’s campus advocacy be applied to the larger society?

So far, the bulk of FIRE’s work has consisted of challenges to policies or actions that involved violations of First Amendment rights, academic freedom principles, or both. But most free speech skirmishes outside academia—from cancellations of controversial museum exhibitions to “cancellations” of people who lost jobs or book contracts because of controversial views—are different in that institutions, employers, and contractors have every legal right to decide what speech they want to platform or to repudiate. The question is whether they should use that right to promote more speech or less.

FIRE president Greg Lukianoff says that the organization’s decision to move beyond campus was “sped up a lot by 2020 being such a rough year, not just on campus but off, for free speech” due to the intensification of the certain culture war issues. He stresses that FIRE has always had a commitment to “defending not just the First Amendment, but larger philosophical free speech principles.”

How does that play out in practice?

Lukianoff says that the “free speech culture,” which he regards as essential as essential underpinning to legal protections for speech, is the focus of FIRE’s current “giant public education campaign”—a series of billboards affirming free speech principles and videos highlighting specific cases. (The campaign is produced jointly with Longwell Partners, publisher of The Bulwark, where I am an employee.) Beyond that, says Lukianoff, the organization will expand its watchdog network to monitor cases of speech retaliation that may be legal, but still signify dangerous trends of intolerance.

Meanwhile, some of the reactions to FIRE’s announcement have focused on its presumed role as a competitor to and even replacement for the ACLU, which has been criticized in recent years for abandoning its core mission.

One such critic is former ACLU board member Wendy Kaminer, an attorney and writer. “I think the ACLU’s retreat from the robust defense of free speech has created something of a vacuum and a need for an organization like FIRE to step in,” Kaminer told me in a telephone interview. (A current FIRE advisory council member, Kaminer stressed that she was speaking for herself, not on behalf of the organization.)

Four years ago, Kaminer publicly assailed confidential new ACLU guidelines which stated that, in selecting cases to take on, the organization can consider whether “the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values” and weigh the “impact of the proposed speech,” including its effects on “marginalized communities.” To Kaminer and other old-school ACLU figures, such as the organization’s former executive director Ira Glasser, this was a betrayal of the ACLU’s traditional commitment to viewpoint-neutral defenses of speech—which, Glasser told me in an email, “means that FIRE’s decision is very welcome, and much needed.”

Glasser also stressed that “it is an overstatement to say the ACLU has entirely abandoned the area. It still defends speech rights in many cases, including cases where the speech defended is repugnant to the ACLU.” But Glasser does see a shift in priorities in which the organization often treats social justice as more important and targets its efforts accordingly. Thus, he points out, while ACLU national legal director David Cole has applauded Georgetown’s decision not to sanction Shapiro, the organization did not intercede on Shapiro’s behalf—FIRE did. (Kaminer was also disturbed by Cole’s praise for Georgetown’s mandatory training on “implicit bias” and “cultural competence”: she sees it as an example of how the ACLU’s support for speech is “qualified by the view of free speech as a threat to expansive progressive ideals of equity and inclusion.”)

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Yet both FIRE and the ACLU have downplayed any potential rivalry or tension.

Lukianoff stressed that the two organizations have collaborated on a number of cases in recent years. The ACLU, contacted for comment on FIRE’s expansion, sent a statement by executive director Anthony Romero: “This is a welcome development. Challenges to free speech are proliferating from both the left and the right, and the nation needs more organizations dedicated to upholding our most fundamental right.”

Even harsh ACLU critics agree with the last part. While Kaminer believes that “there would be a lesser need” for FIRE to go off-campus “if the ACLU of 2022 was as strong on free speech as the ACLU of 1992,” she also says that “there would still be a need [and] a reason for FIRE to step in. It’s always good to have more than one voice.”

Indeed, the different perspectives FIRE and the ACLU bring to the table can be seen as part of a free exchange of ideas on what free-speech advocacy should be like—and thus an object lesson in freedom of speech and tolerance. Let a thousand pro-free-speech voices bloom.

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