Ready, Aim, FIRE!

Samantha Harris and Mary Zoeller respond to a recent essay criticizing the Foundation for Individual Rights in Education.

June 6, 2018

In “FIRE, Aim, Ready!” Steven Bahls charges the Foundation for Individual Rights in Education with engaging in “imbalanced sensationalism.” Specifically, Bahls argues that for purposes of our speech code ratings, we “lump” colleges with policies banning alcohol-related expression in with colleges that maintain far broader restrictions on speech.

Bahls is far too dismissive of the problems with restrictions on drug- and alcohol-related speech. No one is arguing that colleges cannot, for example, prevent local bars from posting fliers in freshman dorms advertising dollar drink specials. But universities do not, as Bahls suggests, deploy policies like this only to “campaign against the scourge of alcohol consumption.” Bans on drug- and alcohol-related speech are often used to suppress political advocacy around controversial issues.

Colorado State University, for example, used a policy banning “any reference to alcoholic beverages or drugs” on postings in the residence halls to prohibit its Campus Libertarians from posting fliers advocating for a Colorado drug reform ballot initiative, because the fliers contained an image of a marijuana leaf. Similarly, multiple student chapters of the National Organization for the Reform of Marijuana Laws have faced censorship for their use of marijuana-related imagery in materials advocating for legal change. FIRE is hardly alone in our concern over such regulations; the American Civil Liberties Union of Virginia represented two student newspapers in a successful First Amendment challenge to a Virginia law prohibiting alcohol advertisements in college publications.

While FIRE’s concern about the abuse of policies like this is far from hypothetical, no college in our Spotlight database actually receives a poor speech code rating solely because of a prohibition on drug- or alcohol-related speech. Rather, we provide the example of a ban on alcohol-related speech as part of an explanation of our rating system, to illustrate how a policy could restrict protected speech but be narrow in scope (as distinguished from a policy that both restricts protected speech and is broad in scope, such as a ban on “offensive” speech).

And contrary to Bahls’s suggestion, policies applicable to a narrow category of speech are distinguished from policies “banning speech because it’s offensive to some students.” The former would receive an intermediate, “yellow light” rating because of its relatively limited applicability, while the latter would receive FIRE’s poorest rating, a red light.

Bahls also criticizes the “Report of the Committee on Freedom of Expression” at the University of Chicago (the Chicago Statement), a free speech policy statement authored by a committee of faculty members chaired by First Amendment scholar Geoffrey Stone. Bahls argues that the Chicago Statement does “not sufficiently recognize that protected speech can injure,” and suggests that universities should instead adopt principles that not only include a commitment to free speech but also a challenge to “speak out against hateful speech.”

Bahls argues that because some speech can cause historically underrepresented groups to feel unwelcome on campus, universities should act to “mitigate the impact on students.” However, minority or dissenting voices are often those that benefit, in the long run, from robust debate and discourse. There was a time in our nation’s not-so-distant past that championing the rights of African-Americans, gay people or those in other minority groups would have been categorized as offensive, hateful or even illegal speech by some administrators. To quote from a recent article by esteemed Harvard law professor Randall Kennedy, “ardent champions of racial justice have typically been ardent champions of civil liberties.”

Bahls also criticizes the Chicago Statement for failing to include a call to condemn hateful speech. He suggests that universities should both actively condemn hateful speech and protect students from harmful speech. Importantly, the Chicago Statement does not preclude an institution from condemning speech it finds reprehensible, or from offering support to students who feel they have been harmed by certain speech. Rather, it encourages community members to hear and judge the merits of a range of ideas for themselves.

With regard to “protecting” students, the Chicago Statement takes a different approach, stating that “it is not the proper role of the university to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.” The Chicago Statement unequivocally concludes that it is “an essential part of the University’s educational mission” to allow the widest possible range of views to be heard and considered by the university community.

Indeed, in contrast to Bahls’s characterization, the Chicago Statement and the PEN America “Principles on Campus Free Speech” echo similar ideas, and both prioritize robust debate and inquiry on campus. Both statements recognize the inherent value -- and power -- of free expression. FIRE welcomed the PEN America Principles as part of a larger report by the organization on free speech in 2016. “College should be a place where ideas can range free, dissent is welcomed, and settled wisdom is reconsidered,” the PEN Principles state. Likewise, this is the overarching theme of the Chicago Statement, which encourages universities to provide its community members the “broadest possible latitude to speak, write, listen, challenge, and learn.” Accordingly, this is the exact reason FIRE has advocated for widespread adoption of the Chicago Statement since its introduction in 2015.

FIRE is dedicated to promoting and protecting free speech in higher education. We care about restrictions on speech whether those restrictions are broad or narrow, whether they impact one person or many people. Steven Bahls does not need to agree with us. But if Bahls supports campus speech codes, he should just say so rather than question our sincerity. Similarly, the Chicago Statement is a document intended to elucidate the importance of free speech in higher education. Its narrow focus does not mean that its authors or proponents disavow the importance of diversity, or civility, or any number of other values that they may deem important to higher education, and to suggest otherwise is disingenuous.


Samantha Harris is vice president of policy research at the Foundation for Individual Rights in Education. Mary Zoeller is a program officer at FIRE.

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