Tag: speech

  • The left should reclaim free speech mantle (opinion)

    The left should reclaim free speech mantle (opinion)

    If progressive or even not-so-progressive Jewish students invited comedian Sacha Baron Cohen to their university to perform his riotous parody “In My Country There Is Problem,” with its call-and-pogrom chorus “throw the Jew down the well / so my country can be free,” would Cohen be allowed on campus? If the song were indeed sung, and a few humorless, unthinking listeners were distressed by the lyrics, or at least claimed to be, would the Jewish students face discrimination and harassment charges under the university’s disciplinary code?

    Today, probably. Would they be found responsible for discrimination and harassment based on national origin? Again, probably. And what if a student band wished to parody the parody with a song titled something like, “Throw Chris Rufo Down the Well So My University Can Be Free”? Could the song be sung against the backdrop of students’ sensitivities and the reciprocated rage of today’s young conservative white men?

    In her recently published opinion essay for Inside Higher Ed, Joan W. Scott skewered the Foundation for Individual Rights and Expression and its vice president for campus advocacy, Alex Morey, for condemning the American Association of University Professors. Scott’s criticism of Morey’s criticism goes like this: Morey lambasted AAUP president Todd Wolfson’s expression of “disappointment” over Donald Trump’s re-election, arguing that Wolfson’s explicit partisanship betrays the AAUP’s purported commitment to academic freedom. Scott countered that FIRE is a libertarian wolf donning academic freedom drag. FIRE, explains Scott, is “dedicated to the absolutist principle of individual free speech,” a principle that is “not,” Scott italicizes, synonymous with academic freedom. In turn, Scott elaborates on academic freedom as “individual and collective rights of faculty as they pursue the mission of higher education in a democracy.”

    We agree with Scott that FIRE—with its many right-wing funding sources as Scott lists them—is unlikely to have our backs if and when the federal government comes to shut down diversity, equity and inclusion programs and cultural studies departments on campus (i.e., queer and Black studies). We respect, too, that Scott knows more about the history and purpose of academic freedom than we do.

    And yet, we worry that the line she draws between free speech and academic freedom—the former ideological and libertarian, the latter true and good—cedes too much. Indeed, her distinction hands “free speech” over to the conservative groups championing their anti-educational causes under its banner, and her dismissal of free speech defenses as apologia for racism lets stand, unnuanced, the left-originating but now right-appropriated proposition that combative, controversial speech is necessarily harmful in an egalitarian university environment. It is the quick conversion of (at times highly provocative) political speech into hate speech that allows “from the river to the sea” to be branded as categorically harassing antisemitism—a conversion that would so quickly ban Jews from sending up antisemitism (“throw the Jew down the well”), ban musicians from joking about drowning Rufo or prohibit, for that matter, marginalized groups from reappropriating slurs to divest them of their injurious force.

    In short, we think there is still good reason—several good reasons—for the academic left to defend speech, both as elemental to academic freedom and as a democratic value unto itself.

    We and nearly every colleague we know have stories of students hastily claiming talk—talk of sex, Israel, Palestine and criticism of affirmative action—as intimidating, harassing or discriminating. It seems to us that a robust defense of academic freedom must include healthy skepticism, but not outright cynicism, of the proposition that words injure. Skepticism, not cynicism, because words may hurt people, further subordinate marginalized groups and erode democratic ideals. David Beaver’s and Jason Stanley’s recently published The Politics of Language draws on critical race and feminist theory to show how some speech acts—affective, nondeliberative and/or racist dog whistles—function to polarize and degrade.

    But we also know, especially in the wake of spurious discrimination claims against campus activists and academics protesting Israel’s military campaigns, that conservative stakeholders are weaponizing the idea of words as weapons, alleging atmospheres of harassment to chill political speech—a project, we must concede, that the left paved the way for.

    Indeed, around 2013, as trigger warnings gained traction on college campuses, the right repackaged “free speech” as the inalienable freedom of anyone to speak on any topic without consequence, especially if that consequence is the loss of a platform. Instead of drawing on the left’s history of free speech advocacy, scholars of “identity knowledges” centered attention on the moral wrongness of offensive speech and the intolerability of feeling unsafe. This shift left progressives defending feelings rather than ideas, collapsing political discord with dehumanization—or, as Sarah Schulman argues, conflict with abuse. Now, with free speech reduced to melodrama, even the Christian right claims to protect its constituents against “harm”—whether from critical race theory or drag shows—rendering the issue a conceit of the culture wars.

    In his much-ridiculed op-ed for The New York Times published last year, linguist John McWhorter lamented that he and his students were unable to listen to John Cage’s silent “4:33” during class, as the silence would have been interrupted by the sound of student protests. The irony that McWhorter chided the protesters for impeding his students from appreciating Cage’s invitation to listen to “the surrounding noise” of the environs was not lost on McWhorter’s critics.

    What was not commented on, though, was McWhorter’s contention that if a group of students had been shouting “DEI has got to die” with the same fervor with which they were shouting for Palestine’s self-determination, then the protests “would have lasted roughly five minutes before masses of students shouted them down and drove them off the campus. Chants like that would have been condemned as a grave rupture of civilized exchange, heralded as threatening resegregation and branded as a form of violence.”

    Whether correct or not, McWhorter’s speculation is not baseless. We want to insist, though, that there are left, not just libertarian, grounds to defend, for example, a student protest against DEI initiatives. They include: respecting and celebrating the university as a space of open dialogue and debate; the possibility that you might learn something from someone with whom you disagree; the opportunity to lampoon, parody or otherwise countermand whatever worse-than-foolish statement the opposition is making; the opportunity, as John Stuart Mill taught us, to strengthen your own ideas and arguments alongside and against the ideas of others; and finally, avoiding the inevitable backlash of “the cancel,” whereby censored conservatives rebrand themselves as truth-telling victims of the “woke.”

    Granted, some of these grounds for defending speech tilt more liberal or libertarian than pure left, whatever that means, but we nonetheless maintain that it is self-defeating for us to carry the banner for “academic freedom” while consigning “free speech” to the province of white grievance. This is especially true for those of us teaching queer and critical sexuality studies, where classrooms and related spaces of activism and dialogue are increasingly circumscribed, the harm principle ever more unprincipled. Consider the case of Aneil Rallin, who in 2022 was accused by Soka University of America of teaching “triggering” sexual materials to his students in a course called Writing the Body, and whose case—while taken up by FIRE—was met with little alarm from the academic left.

    It also applies to those of us who still recognize satire, irony and social commentary in an age of breathtaking literalism. In 2011, the Dire Straits song “Money for Nothing” (1985) was temporarily banned from Canadian radio for its use of the f-slur, even though the term was intended as a commentary on working-class homophobia. The drive to censor and demonize without regard for social context has arguably gotten stronger in the years since.

    From the recent historical record, it seems to us that the enforcement of bureaucratic speech restrictions often damages campus culture and democratic norms more than the speech acts themselves. Indeed, the better question than is X speech act harmful is, to crib from Wendy Brown, when—if ever and at what costs—are speech restrictions the remedy for injury?

    Debating DEI programs, myths of meritocracy and so on is the stuff of academic freedom. A speech act like “DEI must die” is provocative, abrasive and worth publicly disparaging, but it is not the same as hate speech. Song parodies will not save us from the dark years ahead for public education, academic freedom and egalitarian pedagogies of all kinds. But our battle preparations demand standing up for, not surrendering, free speech.

    Joseph J. Fischel is an associate professor of women’s, gender and sexuality studies at Yale University.

    Kyler Chittick is a Ph.D. candidate in the Department of Political Science at the University of Alberta.

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  • Coming soon: ‘Executive Watch’ — Tracking the Trump Administration’s free speech record — First Amendment News 456

    Coming soon: ‘Executive Watch’ — Tracking the Trump Administration’s free speech record — First Amendment News 456

    To lift a line from the songwriter extraordinaire of our era, “the times they are a- changin’.” Indeed, they are — and this is certainly true in our own corner of the world, the world of free speech. 

    For better and worse, Donald Trump and his agents are rearranging the structure of free expression in America. Only a few weeks into his presidency, things are proceeding at a breakneck speed, with a flurry of executive orders flying out the windows of the White House. Even early on, there is a sense that what will follow may well mark one of those pinpoints in our history when that “experiment” of which Holmes spoke is tested. Whatever else happens, it is important that there is some record of these times and what happened in them. To that end, we will soon launch a new segment within FAN called “Executive Watch” to track it all: the President’s orders, the executive agencies’ actions, the activities of the President’s affiliates, and Mr. Trump’s personal undertakings.

    Enter Professor Timothy Zick, the William and Mary Law School Robert & Elizabeth Scott Research Professor and John Marshall Professor of Government and Citizenship. 

    Prof. Timothy Zick

    Zick is the author of five books on the subject: “Speech out of Doors: Preserving First Amendment Liberties in Public Places,” “The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties,” “The Dynamic Free Speech Clause: Free Speech and its Relation to Other Constitutional Rights,” “The First Amendment in the Trump Era,” and “Managed Dissent: The Law of Public Protest.” He is also the co-author of a First Amendment casebook, “The First Amendment: Cases and Theory.”

    For all of the above reasons and others, Professor Zick is well suited to undertake the “Executive Watch” bi-monthly feature of First Amendment News. 

    Even at this early stage, this project comes a time when news stories like the following 21 surface with increasing frequency:



    WATCH VIDEO: Trump Calls For Changes To First Amendment, Demands “Mandatory One-Year In Jail” For U.S. Flag Burning.

    By chronicling such information and then analyzing it, the hope is that our readers will have a more informed sense of the state of free speech at a time when so much is in flux. There is the hope that “Executive Watch” will prompt further discussion of that vital freedom that is at the core of constitutional government in America.

    FBI agents file First Amendment class action

    While FBI agents may be at-will employees who can, generally speaking, be fired for “any reason or no reason,” they can’t be fired for an unconstitutional reason, or as punishment for the exercise of their constitutional rights (e.g. he can’t fire all the African-American agents, or all the agents registered as Democrats).

    The Complaint, filed in DC District Court, is posted here. Plaintiffs are “employees of the FBI who worked on Jan. 6 and/or Mar-a-Lago cases, and who have been informed that they are likely to be terminated in the very near future for such activity.” They “intend to represent a class of at least 6,000 current and former FBI agents and employees who participated in some manner in the investigation and prosecution of crimes and abuses of power by Donald Trump, or by those acting at his behest.”

    Knight Institute on need for fact-checking platform

    [Recently] Meta announced changes . . . to its content moderation policies, including that it’s replacing third-party fact checking with a Community Notes model that allows users to publicly flag content they believe to be incorrect or misleading. 

    The following can be attributed to Katherine Glenn Bass, the Knight Institute’s research director:

    Katy Glenn Bass Research Director Knight Institute

    Katy Glenn Bass

    “Mark Zuckerberg’s announcement today is a stark reminder that many of the biggest platforms we use to communicate about issues of public importance are owned by billionaires who are not accountable to us. Apart from the obvious effort to signal political allegiance, the impact of the announced changes will not be clear for some time. But if we have any hope of measuring or understanding what is happening on these platforms, we need strong protections for the independent researchers and journalists who study them, and better mechanisms for ensuring they can access platform data.”

    In 2019, more than 200 researchers signed an open letter in support of the Knight Institute’s efforts to persuade Facebook to amend its terms of service to establish a “safe harbor” for public-interest journalism and research on the platform. Read more about that effort here.

    Shibley on Harvard’s anti-Semitism settlement

    Robert Shibley

    Robert Shibley

    Just one day after President Trump took office, Harvard agreed to settle two lawsuits brought against it by Jewish students that alleged the university ignored “severe and pervasive anti-Semitism on campus” and created “an unbearable educational environment” in the wake of the October 7, 2023, Hamas attack on Israel and the ongoing war in Gaza.

    While the settlement language itself does not appear to be public, a press release filed on the official docket of The Louis D. Brandeis Center for Human Rights Under Law v. President and Fellows of Harvard College included some details. Most notably, Harvard agreed to adopt the International Holocaust Remembrance Alliance’s (IHRA’s) definition of anti-Semitism. FIRE’s worry, shared by many others — including the definition’s primary author — is that, when added to policies used to punish discriminatory harassment on American campuses, the definition is too likely to be used to punish speech that is critical of Israel or its government but that is not motivated in animus against Jews or Israelis.

    FIRE has repeatedly proposed steps to address anti-Semitic discrimination on campus that would safeguard students from harassment while protecting freedom of speech, most recently in our inauguration-day letter to President Trump. Getting this right is important; any proposal that chills or censors protected speech on campus won’t pass constitutional muster at public universities, won’t square with free speech promises at private universities (like Harvard), and won’t effectively address anti-Semitism.

    Nevertheless, attempts to codify the IHRA definition of anti-Semitism into laws or regulations are nothing new. FIRE posted a roundup of the widespread civil libertarian opposition to its codification last year, when Congress considered adopting it as federal law. Among those opponents is the definition’s primary author, Kenneth Stern, who spoke at length with FIRE’s Nico Perrino on our So to Speak podcast about why it’s not the right tool for the job of regulating speech. As Stern wrote back in 2016 for The New York Times: “The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus. . . . And Jewish students are protected under the law as it now stands.” (Perhaps “as it is now written” would have been more precise; whether colleges follow the law is a different issue.)

    As Stern predicted in that piece:

    If this bill becomes law it is easy to imagine calls for university administrators to stop pro-Palestinian speech. Even if lawsuits alleging Title VI violations fail, students and faculty members will be scared into silence, and administrators will err on the side of suppressing or censuring speech.

    Stern’s prediction is about to receive ground testing at Harvard, and likely at other universities that may follow its lead.

    Forthcoming book: New edition of Neier’s ‘Defending My Enemy’

    A new edition of the most important free speech book of the past half-century, with a new essay by the author on the ensuing fifty years of First Amendment controversies.

    Cover of the book "Defending My Enemy: Skokie and the Legacy of Free Speech in America" by Aryeh Neier

    When Nazis wanted to express their right to free speech in 1977 by marching through Skokie, Illinois — a town with a large population of Holocaust survivors — Aryeh Neier, then the national director of the ACLU and himself a Holocaust survivor — came to the Nazis’ defense. Explaining what many saw as a despicable bridge too far for the First Amendment, Neier spelled out his thoughts about free speech in his 1977 book Defending My Enemy.

    Now, nearly fifty years later, Neier revisits the topic of free speech in a volume that includes his original essay along with an extended new piece addressing some of the most controversial free speech issues of the past half-century. Touching on hot-button First Amendment topics currently in play, the second half of the book includes First Amendment analysis of the “Unite the Right” march in Charlotteville, campus protest over the Israel/Gaza war, book banning, trigger warnings, right-wing hate speech, the heckler’s veto, and the recent attempts by public figures including Donald Trump to overturn the long-standing Sullivan v. The New York Times precedent shielding the media from libel claims.

    Including an afterword by longtime free speech champion Nadine Strossen, Defending My Enemy offers razor-sharp analysis from the man Muck Rack describes as having “a glittering civil liberties résumé.”

    Praise for Defending My Enemy

    “Aryeh Neier’s Defending My Enemy is as relevant today as it was when it was first published. The book is a powerful reminder of why free speech matters—not just for the voices we agree with, but for the voices we abhor. Neier’s story of defending Nazis’ rights to speak in Skokie underscores a timeless truth: If we want to preserve freedom for ourselves, we must be willing to defend it for others, no matter how deeply we disagree. At a time when censorship is on the rise globally, Defending My Enemy stands as a bold and principled call to action. Every advocate of free expression needs to read this book—and more importantly, live its lessons.” — Greg Lukianoff

    Forthcoming scholarly article: ‘Output of machine learning algorithms isn’t entitled to First Amendment protection’

    Stanford Law Review logo

    Machine learning algorithms increasingly mediate our public discourse – from search engines to social media platforms to artificial intelligence companies. And as their influence on online speech swells, so do questions of whether and how the First Amendment may apply to their output. A growing chorus of scholars has expressed doubt over whether the output of machine learning algorithms is truly speech within the meaning of the First Amendment, but none have suggested a workable way to cleanly draw the line between speech and non-speech.

    This Article proposes a way to successfully draw that line based on a principle that we call “speech certainty” – the basic idea that speech is only speech if the speaker knows what he said when he said it. This idea is rooted in the text, history, and purpose of the First Amendment, and built into modern speech doctrines of editorial discretion and expressive conduct. If this bedrock principle has been overlooked, it is because, until now, all speech has been imbued with speech certainty. Articulating its existence was never necessary. But machine learning has changed that. Unlike traditional code, a close look at how machine learning algorithms work reveals that the programmers who create them can never be certain of their output. Because that output lacks speech certainty, it’s not the programmer’s speech.

    Accordingly, this Article contends that the output of machine learning algorithms isn’t entitled to First Amendment protection. With the Supreme Court signaling its intent to address unresolved questions of online speech, we are poised to enter a new era of First Amendment jurisprudence in the coming years. As we do, scholars, practicing attorneys, and judges can no longer ignore how the algorithms underlying online speech actually work – and how they have changed with the advent of machine learning. 

    Without recognizing this paradigm shift in algorithmic speech, we risk sleepwalking into a radical departure from centuries of First Amendment jurisprudence. By failing to distinguish between traditional and machine learning algorithms, current consensus about algorithmic speech suggests that the Constitution should, for the first time in its history, protect speech that a speaker does not know he has said. Speech certainty provides a novel and principled approach to conceptualizing machine learning algorithms under existing First Amendment jurisprudence. 

    Related

    More in the news

    2024-2025 SCOTUS term: Free expression and related cases

    Cases decided 

    • Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
    • Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
    • TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

    Review granted

    Pending petitions

    Petitions denied

    Last scheduled FAN

    FAN 455: “Eight free expression cases pending on SCOTUS docket

    This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.

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  • Freedom of speech in higher education (Future Trends Forum)

    Freedom of speech in higher education (Future Trends Forum)

     What does academic freedom mean in 2025?

    We will explore this vital question with the help of Jeremy C. Young, the Freedom to Learn program director at PEN America (and excellent 2023 Forum guest).

     

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  • Analysis: Harvard’s settlement adopting IHRA anti-Semitism definition a prescription to chill campus speech

    Analysis: Harvard’s settlement adopting IHRA anti-Semitism definition a prescription to chill campus speech

    Just one day after President Trump took office, Harvard agreed to settle two lawsuits brought against it by Jewish students that alleged the university ignored “severe and pervasive anti-Semitism on campus” and created “an unbearable educational environment” in the wake of the October 7, 2023, Hamas attack on Israel and the ongoing war in Gaza. 

    While the settlement language itself does not appear to be public, a press release filed on the official docket of The Louis D. Brandeis Center for Human Rights Under Law v. President and Fellows of Harvard College included some details. Most notably, Harvard agreed to adopt the International Holocaust Remembrance Alliance’s (IHRA’s) definition of anti-Semitism. FIRE’s worry, shared by many others — including the definition’s primary author — is that, when added to policies used to punish discriminatory harassment on American campuses, the definition is too likely to be used to punish speech that is critical of Israel or its government but that is not motivated in animus against Jews or Israelis. 

    FIRE has repeatedly proposed steps to address anti-Semitic discrimination on campus that would safeguard students from harassment while protecting freedom of speech, most recently in our inauguration-day letter to President Trump. Getting this right is important; any proposal that chills or censors protected speech on campus won’t pass constitutional muster at public universities, won’t square with free speech promises at private universities (like Harvard), and won’t effectively address anti-Semitism.

    Nevertheless, attempts to codify the IHRA definition of anti-Semitism into laws or regulations are nothing new. FIRE posted a roundup of the widespread civil libertarian opposition to its codification last year, when Congress considered adopting it as federal law. Among those opponents is the definition’s primary author, Kenneth Stern, who spoke at length with FIRE’s Nico Perrino on our So to Speak podcast about why it’s not the right tool for the job of regulating speech. As Stern wrote back in 2016 for The New York Times: “The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus … And Jewish students are protected under the law as it now stands.” (Perhaps “as it is now written” would have been more precise; whether colleges follow the law is a different issue.) As Stern predicted in that piece:

    If this bill becomes law it is easy to imagine calls for university administrators to stop pro-Palestinian speech. Even if lawsuits alleging Title VI violations fail, students and faculty members will be scared into silence, and administrators will err on the side of suppressing or censuring speech.

    Stern’s prediction is about to receive ground testing at Harvard, and likely at other universities that may follow its lead.

    Anti-Semitism Awareness Act continues to threaten free speech on campus

    News

    However well-intentioned the Anti-Semitism Awareness Act may be, it remains deeply flawed and a threat to the First Amendment.


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    At public universities, which are bound by the First Amendment, it’s possible that the test will not last that long. In a case over the definition’s adoption by Texas public institutions by gubernatorial executive order, a federal judge ruled last October that Students for Justice in Palestine was likely to succeed in its claim that policies using the IHRA definition “impose impermissible viewpoint discrimination that chills speech in violation of the First Amendment.” The policies are still in place until the trial, which is scheduled for January of 2026.

    But even if use of the IHRA definition is struck down at public universities, that would not prevent its use at Harvard or hundreds of other private institutions. FIRE’s opposition to the use of the IHRA definition for the purpose of regulating speech is not because we do not believe anti-Semitic harassment is not happening. Obviously, it is. Nor is it because we believe anti-Semitic harassment is not worth attention or not prohibited by civil rights law. Again, it is. Our concern is with the IHRA definition itself and the way campuses across the country are likely to misapply it to further chill speech — and use it as an entering wedge to do the same with speech on every other topic under the sun. If the underlying issue were bigotry against any other group, our concerns would be the same. (And if you are aware of such efforts, please bring them to our attention.)

    The IHRA definition and anti-discrimination law

    At the outset, the adoption of the IHRA definition to define anti-Semitism is itself novel in that laws and rules in the United States generally do not define what acts specifically are racist, sexist, religiously bigoted, or anti-Semitic. They are written from the perspective of prohibiting discrimination against a class of people protected by that law. In the case of Title VI of the Civil Rights Act of 1964, for example, that includes race, color, and national origin. But the law does not go on to say “and here is what is racist” followed by a list of examples or a definition. That is left to judges and fact-finders to determine, taking into account the facts and context of a given case.

    Detailed definitions and examples are much less novel on college campuses, though they have long been problematic. Back in 2007, FIRE took issue with the University of Delaware for a mandatory freshman orientation that (among a massive number of its problems) defined “a racist” as “all white people (i.e., people of European descent) living in the United States, regardless of class, gender, religion, culture, or sexuality.” Sexual harassment is often (too broadly) defined simply as “unwelcome conduct of a sexual nature,” which is unhelpful and overbroad, and then further runs aground on examples like Cal State-Channel Islands’ (our July 2019 Speech Code of the Month) “derogatory posters, cartoons, drawings, symbols, or gestures.” 

    The IHRA definition combines a couple of these problems. Its website explains

    On 26 May 2016, the Plenary in Bucharest decided to:

    Adopt the following non-legally binding working definition of antisemitism:

    “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

    Let’s look at this with an eye towards enforcement. Did a person accused of discriminatory harassment do so based on having “a certain perception of Jews?” What perception is that? Hatred? Not exactly, as it “may be expressed as hatred towards Jews.” But if it “may be expressed as hatred towards Jews,” it may also not be expressed as hatred towards Jews. That leaves open the possibility that anti-Semitism can be expressed by anything. The definition then moves on to say that it can be directed toward “Jewish or non-Jewish individuals and/or their property.” The group of “Jewish and non-Jewish individuals” includes literally everyone. It is more specific about community institutions and religious facilities, excluding those that are not Jewish.

    The IHRA definition’s flexibility and reach introduce serious problems when the definition is being used as a speech code that can result in the discipline of individuals or the silencing of their speech. 

    Most of the definitional work, then, is left to be done by analogy to the examples, which IHRA makes clear, saying, “To guide IHRA in its work, the following examples may serve as illustrations.” Some of those examples include hard-to-argue-with propositions like “Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion,” or “Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.” But other examples have a much greater potential overlap with political critiques, such as “Drawing comparisons of contemporary Israeli policy to that of the Nazis,” and “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor,” both of which were cited by the judge in the Texas lawsuit mentioned above. Still others are somewhere in between, like “Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.”

    To combat anti-Semitism, House bill chips away at free speech

    News

    An amendment before the U.S. House impermissibly threatens the expressive rights of students and faculty across the country.


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    For the IHRA definition’s intended purpose — to identify anti-Semitism in Europe so that the IHRA may catalog and identify it — the breadth of the examples isn’t too much of a problem. It is common, at FIRE and everywhere else, to ask someone to look for examples of a certain kind of incident by telling them “look for things that look like this.” The sweep of the examples is likely helpful for the IHRA’s intended aim, in that they may capture “edge cases” that don’t strictly fall into the definition but nevertheless seem like part of what it was intended to cover.

    Yet the IHRA definition’s flexibility and reach introduce serious problems when the definition is being used as a speech code that can result in the discipline of individuals or the silencing of their speech. The definition is simply not constructed in a manner that makes for fair and predictable application by different individuals, even if all of those individuals are trying their level best. That’s likely why the IHRA went out of its way to label it both a “non-legally binding” and “working” definition, building into the definition’s very text the recognition that it was neither intended to be used as a regulation nor the final word.

    Having said that, IHRA goes on to couch things even further. Preceding the examples, it writes:

    Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic. Antisemitism frequently charges Jews with conspiring to harm humanity, and it is often used to blame Jews for “why things go wrong.” It is expressed in speech, writing, visual forms and action, and employs sinister stereotypes and negative character traits.

    Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to: […]

    The bolded phrases are all qualifiers that leave more openings for interpretation — a situation that courts recognize as a problem in the area of free speech because it makes the rule too vague to follow or fairly administer. In Grayned v. City of Rockford, a landmark 1972 case, the Supreme Court explained that a law (or regulation) is unconstitutionally vague when it does not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” And vagueness is a particular problem when the rule concerns free speech: “[W]here a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.”

    Harvard is private, so the First Amendment doesn’t directly apply on its campus, but the underlying problem for any institution that claims to be committed to free speech is the same.

    Applying the IHRA definition in practice

    Let’s walk through one example to see how this can play out.

    Accusations that Israel is an “apartheid state” are common on campuses (including at Harvard). Are they anti-Semitic? Many would say yes; the ADL calls labeling Israel as an apartheid state “inaccurate [and] offensive,” and notes it is “often used to delegitimize and denigrate Israel as a whole.” A large majority of Americans may find it unconvincing — only 13% in this April 2023 poll agreed that Israel was “a state with segregation similar to apartheid.” Yet saying that Israel’s Jews are oppressing Palestinians by running an apartheid regime is most certainly criticism “similar to that leveled against” countries like the United StatesIndiaMalaysia, and course the former regime of South Africa (the country from which the term originates), along with many others, past and present. If applying the actual words of the IHRA definition, then, this seems to mean that accusations of Israeli apartheid “cannot be regarded as antisemitic.”

    On the other hand, Israeli apartheid accusations do sound similar to several of the IHRA examples. Is the apartheid accusation “[d]enying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor?” That’s close, but not exactly right; you may think that Israel should exist, but with different policies. Is it “[a]pplying double standards by requiring of it a behavior not expected or demanded of any other democratic nation?” This depends on whose expectations or demands are being considered. And is making the claim while mostly around American Jews rather than Israeli Jews a form of “[h]olding Jews collectively responsible for actions of the state of Israel,” since most of your Jewish listeners are likely to be American, with little influence on what Israel does?

    None of these are easy questions. Regardless of your personal view, you will find reasonable people who disagree on the answers. And that’s exactly why the IHRA’s examples, when used as part of a speech regulation, threaten protected speech.

    Nobody asked the IHRA to come up with a law or rule to define anti-Semitism for purposes of determining what might be discriminatory harassment on American campuses. It’s not the IHRA’s fault that the definition is not right for that purpose.

    Ask yourself: What would you do if put in the position of the fact-finder tasked with using the IHRA definition to determine whether a person had engaged in prohibited discriminatory harassment by constantly banging the drum about “Israeli apartheid?” First, you would look to see if the accused said or did something else that would make the prohibited discriminatory intent — that the real reason for their activity was prejudice, not political disagreement — more obvious. If so, problem solved: you can either ignore the apartheid accusation or feel fairly safe assuming that this particular person did mean it to be anti-Semitic.

    But if there’s no other helpful evidence, you have to make a decision: Do I believe the IHRA definition actually means what it says about how “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic?” The rules of grammar and logic dictate one answer. But, you think, “that can’t actually be what the rule means, can it?” You look at the examples and can’t figure it out, so you just pick one meaning and go with it. This isn’t an application of the rule based on the facts before you. It’s essentially a coin-flip, and replacing it with an actual coin-flip would produce an equally accurate outcome.

    More likely, though, you’re on the disciplinary panel because you care about the college community and are determined to try to do what’s best for it. You ask yourself: “Is anyone really that angry about political discrimination in a far-off land, or is it really hostility towards Jews? Might they escalate to physical violence if I let them ‘get away’ with it? Maybe it’s better safe than sorry; after all, this person sounds unpleasant to be around.”

    Either way, you don’t have the information you need to know whether the person is guilty or innocent, because you don’t know what the rule actually forbids. You can speculate about what it means, and you have incentives to find a certain way. But the main thing you have to fall back on is the one thing for which you don’t need any process or information at all: prejudice. Imagine the most likely result with a white student named Stacy. Then a Latino student named Reuben. Then a black student named Denise. Then an Arab student named Mohammed. Are all these cases equally likely to come out the same way? The obvious answer is no.

    That’s the cost of punishing people for breaking rules that are too vague to understand, or too confusing to follow, or that reasonable people can read entirely differently from one another. 

    This is bad practice with any rule, but it’s particularly bad with rules that can affect expression. Vague and incomprehensible rules about income taxes are certainly bad, but people are still likely to work and pay (most of) their taxes. Vague rules about speech means people silence themselves, at least in public, which only encourages resentment and radicalization. 

    Nobody asked the IHRA to come up with a law or rule to define anti-Semitism for purposes of determining what might be discriminatory harassment on American campuses. It’s not the IHRA’s fault that the definition is not right for that purpose. It will be the fault of a school who adopts it when the inevitable injustice results, and quite possibly turns a persuadable political opponent into someone with a racial or religious ax to grind.

    Harvard compounds the problem through hypocrisy

    Harvard’s FAQ attempting to explain how this applies only makes the situation worse.

    A few days after announcing the settlement, Harvard also released a Frequently Asked Questions document about its updated policy. It’s more than 3,500 words long, and refers students to the IHRA definition as well as Harvard’s own (also long) Non-Discrimination and Anti-Bullying Policy. It states that “[d]iscrimination on the basis of the following protected categories, or any other legally protected basis, is unlawful and is prohibited,” with those categories being 

    According to the press release, Harvard agreed to include discrimination against Zionists as a form of punishable discriminatory harassment, apparently independent of whether those Zionists are or are perceived to also be Jewish. The FAQ confirms this, but with a twist — it covers anti-Zionists, too:

    Does conduct that would violate the Non-Discrimination Policy if targeted at Jewish or Israeli individuals also violate the policy if targeted at Zionists?

    Yes, provided that the conduct meets the requirements for discriminatory disparate treatment or discriminatory harassment. The Non-Discrimination Policy includes among its protected categories religion, national origin, shared ancestry or ethnic characteristics, and political beliefs. For many Jewish people, Zionism is a part of their Jewish identity. Conduct that would violate the Non-Discrimination Policy if targeting Jewish or Israeli people can also violate the policy if directed toward Zionists. Examples of such conduct include excluding Zionists from an open event, calling for the death of Zionists, applying a “no Zionist” litmus test for participation in any Harvard activity, using or disseminating tropes, stereotypes, and conspiracies about Zionists (e.g., “Zionists control the media”), or demanding a person who is or is perceived to be Jewish or Israeli to state a position on Israel or Zionism to harass or discriminate.

    Such conduct would need to meet the standards expressed in the Non-Discrimination Policy for discriminatory disparate treatment or discriminatory harassment, as described above.

    Zionists, anti-Zionists, and non-Zionists are all protected against discriminatory disparate treatment and harassment under the policy.

    Does conduct that would violate the Non-Discrimination Policy if targeted at Muslim, Arab, Palestinian individuals also violate the policy if targeted at individuals who support Palestinian rights?

    Yes, parallel to the question and answer above, provided that the conduct meets the requirements for discriminatory disparate treatment or discriminatory harassment. The Non-Discrimination Policy includes among its protected categories religion, national origin, shared ancestry or ethnic characteristics, and political beliefs such as support of Palestinian rights.

    On one hand, this can be seen as solving the problem of appearing to carve out special protections for those with a particular religious or political belief (Zionism is at least one of those and sometimes both) by according the same level of protection to those with the opposing belief. Perhaps this will end up being a net benefit for Jewish or Zionist students who are discriminatorily harassed — if one assumes that Harvard administrators did not already know that Zionism was, if not a religious belief, certainly a political belief. (That seems hard to swallow, but it’s possible.) What Harvard appears to do with this FAQ is simply subsume the settlement into its pre-existing protections against discrimination against people based on their political beliefs.

    And that’s where this all breaks down, because it’s quite possible that there is not a single person on this planet who sincerely believes that Harvard does not engage in disparate treatment of people based on their political beliefs. (Start here and keep on scrolling.)

    It is no exaggeration to say that FIRE would not exist if Harvard didn’t play favorites with regard to politics. Its decades of doing so were a major factor in leading FIRE co-founder Harvey Silverglate (a graduate of Harvard Law who to this day resides in Cambridge, and who often represented Harvard students at its disciplinary hearings) to realize that something had gone terribly wrong on our nation’s college campuses. He would eventually join FIRE’s other co-founder, Alan Charles Kors, to publish The Shadow University back in 1998, and to found what began as the Foundation for Individual Rights in Education the following year. Harvard’s written prohibition against political discrimination was already in place when then-president Claudine Gay stepped on a metaphorical rake regarding anti-Semitism in front of Congress in 2023, starting a chain of events that led to her resignation.

    Simply put, if Harvard was serious about preventing discrimination against Jewish or Zionist students, it already had the ability to do so. Whether based on status or belief, they were certainly protected under Harvard’s existing policies. Harvard just didn’t feel like enforcing those rules for the benefit of those students.

    Nor did Harvard feel like using the correct standard for discriminatory harassment in the educational context — the Davis standard that behavior must be “severe, pervasive, and objectively offensive” (as well as fulfill several other factors) to be punishable discriminatory harassment. FIRE has written exhaustively about the importance of the Davis standard (here’s a primer in two parts on it), and why the constant attempts of schools to water it down by pretending “and” is the same as “or” are dangerous for free expression.

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    Harvard has done exactly that, watering down the Davis standard to require only that to be punishable, offensive behavior merely be severe or pervasive, not both. Here’s the thing: a great deal of activism is meant to be pervasive. Ongoing protests, social media campaigns, distribution of literature, the display of flags and signs, and many other forms of expression can all go on for days, weeks, or months. The messages may well be offensive, even objectively offensive. Requiring that the communication of these messages also reach the level of severity is a fundamental guardrail preventing the use of discriminatory harassment policies to silence protected speech — and Harvard has gone ahead and pulled that guardrail right out.

    Presumably, the plaintiffs are hoping that this settlement will at least focus Harvard’s attention on discrimination against Jewish and Zionist students. This is likely to be true, at least until the heat is off. Given the past couple of years, it’s hard to blame anyone involved in the Israeli-Palestinian controversy for being upset about how campuses have treated them. But the permanent effect of broadening the reach of discriminatory harassment policies so that virtually every cultural, political, or religious disagreement becomes a potential matter for investigation will inevitably be to chill speech on any topic that might be controversial.

    Harvard is likely just fine with that chilling effect, and even more content to know that the more overbroad, vague, and complicated it can make its harassment policies, the more discretion its administrators have to simply do whatever they want. Not only does the vagueness guarantee this outcome, but the FAQ contains plenty of “savings clause” language that gives Harvard the ability to apply the policy arbitrarily. How about this gem:

    Ordinarily, it will not violate the NDAB Policies for members of the Harvard community to make controversial statements in the course of academic work or in scholarship; express disagreement with another person’s political views; or criticize a government’s policy or the political leaders of a country.

    “Ordinarily” it won’t — which means sometimes it will. Can you determine when that might be by reading the policies? No. The answer, then, is “when we say it will.”

    This is not a win for free speech or for anti-discrimination. This is a license for Harvard to go right on doing whatever it wants.

    The double standards are the real problem

    The words “Equal Justice Under Law” are carved on the front of the Supreme Court for a reason. 

    There is little that is more corrosive to a society or community than rules that allow the authorities to treat offenses differently depending on who the alleged victims or offenders might be. This is a common thread in many FIRE cases, but it’s impossible not to notice how clearly it takes front and center in complaints by Jewish or pro-Israel students that they are subjected to treatment that no campus would accept were it aimed at other minority groups.

    The complaint in the Brandeis Center v. Harvard case at issue is just one among many examples. It’s literally the first thing they bring up in the complaint. While Harvard promises to prohibit “[b]ullying, hostile and abusive behavior,” the plaintiffs write:

    [A]s to Harvard’s Jewish and Israeli students, these promises are empty. In recent years, and especially in the last few months, Jewish and Israeli students have been subjected to cruel antisemitic bullying, harassment, and discrimination. And when Harvard is presented with incontrovertible evidence of antisemitic conduct, it ignores and tolerates it. Harvard’s permissive posture towards antisemitism is the opposite of its aggressive enforcement of the same anti-bullying and anti-discrimination policies to protect other minorities.

    FIRE has spoken to enough students at Harvard and other institutions to give us no reason to doubt this is true. While a perennial problem with regard to many issues, the transparent application of double standards has been particularly central to the complaints of Jewish and pro-Israeli students.

    The extent to which this is acutely felt by Jewish and pro-Israeli students is further compounded by the fact that the application of double standards to Jews and/or Israel is widely considered to be a central characteristic of specifically anti-Semitic bigotry. After all, the words “double standards” literally appear in one of the IHRA examples of potential anti-Semitism: “Applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation.”

    Consider this allegation, taken from the Brandeis Center’s complaint:

    On October 18, 2023, another member of JAFE and the Brandeis Center, Member #4, an Israeli Jew and a student at the Harvard Business School (“HBS”), was walking through campus when he encountered an outdoor anti-Israel protest and decided to video the event, as others were doing. When protestors saw him and identified him as Jewish and/or Israeli, they accosted him. A mob surrounded him, engulfed him with keffiyehs, and chanted “Shame! Shame! Shame!” in his face. The assailants grabbed him, and one hit him in the neck with his forearm, before forcing Member #4 out of Harvard’s quad…. The video of the assault is shocking. But more remarkable perhaps is that Harvard has not taken any action to date to redress both the physical assault and the clear violations of its Anti-Bullying and Anti-Discrimination Policies.

    Assuming this account is anywhere near the truth, it is impossible to imagine this being Harvard’s reaction to, say, a group of white students doing this to an African-American student. Nor is any change to policy required to handle this situation. You don’t even need a discrimination policy to prevent people from shoving others around. If Harvard truly sat on its hands here, that’s because it wanted to.

    The solution to this problem will not come from making people at Harvard more aware of what represents anti-Semitic discrimination, expanding the number of protected classes, or broadening their interpretation in a way that cannot help but scare people away from speaking. It can only be solved when the people in charge are either no longer willing or no longer able to apply noxious double standards in order to advance their own political, religious, or cultural agendas.

    Adopting the IHRA definition of anti-Semitism will chill campus speech. We can hope that it will also help at least a few Harvard students whose episodes of discriminatory harassment might otherwise be ignored, assuming the Harvard administration feels the need to make a show of things. It won’t address the root problem. But it will set Harvard up for plenty of new ones.

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  • Trump’s threat to deport anti-Israel protesters is an attack on free speech

    Trump’s threat to deport anti-Israel protesters is an attack on free speech

    This article originally appeared in MSNBC on Jan. 31, 2025.


    The campus controversies inflamed by the Oct. 7, 2023, Hamas attack against Israel and Israel’s subsequent war in Gaza have reached a worrying conclusion. Now, with President Donald Trump’s promise to deport those he deems “pro-jihadist” protesters, we’re facing questions not just about which ideas and speech should be allowed on campus, but whether foreign students should be deported for expressing disfavored views.

    On Wednesday, Trump signed an executive order on antisemitism that directs leaders of agencies, including the secretary of homeland security, to familiarize universities with grounds for inadmissibility for foreign nationals “so that such institutions may monitor for and report activities by alien students and staff relevant to those grounds.” Those reports will then lead “to investigations and, if warranted, actions to remove such aliens.”

    This development should worry all Americans, regardless of their position on the Israel-Hamas war.

    The order implies that universities should be monitoring and reporting students for scrutiny by immigration officials, including for speech that is protected by the First Amendment. It follows last week’s executive order threatening denial of entry to foreign nationals, or even deportation of those currently in the country, who “espouse hateful ideology.”

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    Student visa holders in the U.S. already risk deportation by engaging in criminal activity, and did so long before the enactment of this order. Students who commit crimes — including vandalism, threats or violence — must face consequences, including potential revocation of visas when appropriate.

    The First Amendment does not protect violence, for visitors and citizens alike, and an executive order narrowly confined to targeting illegal acts would not implicate First Amendment rights.

    But a fact sheet released by the White House alongside the executive order goes well beyond criminal grounds for removal of foreign nationals to instead threaten viewpoint-motivated deportations. “To all the resident aliens who joined in the pro-jihadist protests, we put you on notice: come 2025, we will find you, and we will deport you,” Trump said. “I will also quickly cancel the student visas of all Hamas sympathizers on college campuses, which have been infested with radicalism like never before.”

    If that’s what the Trump White House expects agencies to read into its formal orders, this development should worry all Americans, regardless of their position on the Israel-Hamas war.

    Advocates of ideological deportation today should not be surprised to see it used against ideas they support in the future.

    Our nation’s campuses are intended to be places of learning and debate that facilitate a wide range of views, even ones that some consider hateful or offensive.

    This openness, albeit unpleasant or controversial at times, is a defining strength of American higher education. It’s one of the features attractive to students traveling from abroad who may hope to take part in the speech protections Americans have worked so hard to preserve. These are protections that they may very well be denied in their home countries.


    We won’t protect freedom on campus by making it inaccessible to the international students who study there. But, given the warning accompanying the order, international students will now be rightfully afraid that their words — not just their conduct — are under a microscope.

    There are already signs that critics of campus demonstrations expect the administration will expel protesters from the country. In the lead-up to the signing of this latest order, pro-Israel advocates claimed to be in contact with officials in the incoming Trump administration concerning lists of student protesters they hope to see deported. One group, Betar, told the New York Post it’s “using a combination of facial recognition software and ‘relationship database technology’” to identify protest attendees who are foreign nationals.

    Freedom of speech was never meant to be easy.

    At the Foundation for Individual Rights and Expression (FIRE), where I work, we have seen firsthand the many speech-related controversies that have plagued higher education over the decades. In every case, adhering to viewpoint-neutral principles, rather than censorship, has been the proper solution. 

    If we open the door to expelling foreign students who peacefully express ideas out of step with the current administration about the Israeli-Palestinian conflict, we should expect it to swing wider to encompass other viewpoints too. Today it may be alleged “Hamas sympathizers” facing threats of deportation for their political expression. Who could it be in four years? In eight?

    Advocates of ideological deportation today should not be surprised to see it used against ideas they support in the future.

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    In Bridges v. Wixon, the Supreme Court’s 1945 decision rejecting the deportation of Australian immigrant Harry Bridges over alleged Communist Party connections, Justice William Douglas wrote, “Freedom of speech and of press is accorded aliens residing in this country.”

    Later decisions from the court complicate the question. The federal government retains significant authority over those who may enter and stay in the country. But the court’s reasoning in Wixon should provide lasting guidance.

    In his concurring opinion, Justice Frank Murphy stated that he “cannot agree that the framers of the Constitution meant to make such an empty mockery of human freedom” by allowing the government to deport an alien over speech for which it could not imprison him.

    Freedom of speech was never meant to be easy. But it allows us the space we need to work through thorny social and political challenges, even when it’s fraught with friction and discomfort. The United States should preserve this freedom on our campuses — spaces for free learning that set us apart from more authoritarian nations around the world — not make an “empty mockery” of it.

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  • Analysis: Early flurry of executive orders a mixed bag for free speech

    Analysis: Early flurry of executive orders a mixed bag for free speech

    Since taking office for his second term on Jan. 20, President Trump has issued a flurry of executive orders, including several implicating the First Amendment and freedom of expression. Below, we highlight some of these orders and evaluate the potential ramifications for free speech.

    Executive order on protecting freedom of speech is a good start — but more must be done

    One of the first executive orders the president signed was titled “Restoring Freedom of Speech and Ending Federal Censorship.” This order aims to “secure the right of the American people to engage in constitutionally protected speech” and “ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.” Specifically, the order notes the government has “trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”

    FIRE welcomes this order’s call to end federal government censorship, including that which is hidden from public view. Leaks, court documents, and other disclosures have revealed instances of federal officials pressuring social media companies to limit controversial but constitutionally protected speech on vigorously disputed topics like the origins of Covid-19, the Hunter Biden laptop story, and election integrity.

    We have written repeatedly about the dangers of such government coercion, commonly referred to as “jawboning,” highlighting how this sneaky form of government censorship threatens freedom of expression.

    A pledge by the executive branch to respect the free speech of all Americans is a good first step. But any executive order can be modified or reversed on the say-so of one person — the president. It will take actual legislation — such as FIRE’s model transparency bill — to create mechanisms that statutorily require disclosure and bring to light governmental efforts to strong-arm private social media companies into censoring protected speech. 

    In the meantime, FIRE will monitor the administration’s actions, just as we did during the Biden administration, and hold federal agencies to the standards set forth in the executive order.

    Executive orders targeting DEI programs appear to avoid First Amendment pitfalls — but FIRE will be watching their implementation

    President Trump also signed two executive orders with the aim of dismantling diversity, equity, inclusion, and accessibility programs. The first, signed on Jan. 20 and titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” calls for “termination of all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.”

    DEI/DEIA programs and initiatives take many forms. FIRE has no position on the values DEI programs may seek to advance. But our experience defending student and faculty rights on campus demonstrates that DEI administrators and offices have regularly been involved in threats to academic freedom and speech policing, functioning as a way to enforce preferred orthodoxy or ideology. And some DEI initiatives — such as mandatory DEI statements in faculty hiring or student admissions — flatly threaten free expression and academic freedom and should be prohibited. We have previously introduced model legislation designed to eliminate such use of political litmus tests in faculty hiring and student admission decisions.

    FIRE has also seen legislation in which overbroad attempts to curtail DEI mandates threaten the very same speech rights of faculty and students they aim to protect. Overbroad restrictions can improperly limit classroom discussions — as we saw in West Virginia’s recent executive order prohibiting faculty from sharing any material that promotes or encourages certain DEI-related views, while at the same time permitting criticism of those views. This allows institutions to continue ideological litmus tests as long as such tests oppose DEI — which just recreates the same problem.

    Overzealous enforcement could threaten free speech by, for example, indirectly chilling a professor from sharing their positive views of affirmative action policies or leading to investigation of a government grantee for a social media post expressing personal support for DEI initiatives.

    The president’s executive order appears to avoid these issues by targeting only the government’s own speech and initiatives, which it can constitutionally control. For instance, the Office of Management and Budget must provide a list of “Federal grantees who received Federal funding to provide or advance DEI, DEIA, or ‘environmental justice’ programs, services, or activities since January 20, 2021.” This is different from prohibiting any federal grantees from promoting DEI, which would threaten speech. Instead, the order specifically targets federal grants made specifically for the purpose of advancing DEI, and the federal government is free to shut off that funding if it no longer wishes to advance those ideals or views.

    A second DEI-related order, signed on January 21, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” aims to eliminate “affirmative action” and “illegal discrimination and illegal preferences” in line with the Supreme Court’s decision in Students for Fair Admissions v. Harvard, which held race-based affirmative action programs in college admissions violated the Fourteenth Amendment. (FIRE takes no position on affirmative action.)

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    The order helpfully includes two provisions that make clear it does not reach into the college classroom or infringe upon academic freedom:

    (b) This order does not prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech.

    (c) This order does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.

    While these orders avoid constitutional pitfalls on their face, implementation should proceed carefully. Overzealous enforcement could threaten free speech by, for example, indirectly chilling a professor from sharing their positive views of affirmative action policies or leading to investigation of a government grantee for a social media post expressing personal support for DEI initiatives.

    Executive order on “gender ideology” invites possible abuse

    This executive order focuses on “[defending] women’s rights and [protecting] freedom of conscience by using clear and accurate language and policies that recognize women are biologically female, and men are biologically male.” The order requires federal government agencies to:

    remove all statements, policies, regulations, forms, communications, or other internal and external messages that promote or otherwise inculcate gender ideology, and shall cease issuing such statements, policies, regulations, forms, communications or other messages. Agency forms that require an individual’s sex shall list male or female, and shall not request gender identity. Agencies shall take all necessary steps, as permitted by law, to end the Federal funding of gender ideology.

    This aspect of the order is limited to the federal government’s own speech. However, there is a risk, similar to that presented by imprecise anti-DEI legislation, that the breadth of such an order could lead to direct or indirect censorship of private actors. The government has the power to control its speech when it is the speaker, such as in a training given to its employees. But its power is much more limited when the speaker is a private citizen.

    Of particular concern is this clause: “Federal funds shall not be used to promote gender ideology. Each agency shall assess grant conditions and grantee preferences and ensure grant funds do not promote gender ideology.”

    While the government can choose to change its own messaging on gender issues, it cannot deny funds to grantees for exercising their own First Amendment rights. Further, the imprecise language could encourage government actors to withhold otherwise available grants from those with opinions that do not align with the views expressed in this executive order — chilling constitutionally protected speech. Grantees who would otherwise espouse views agreeing with “gender ideology” may refrain for fear of losing their government grant, even if they do not use the grant itself to promote “gender ideology.”

    Executive order intended to “protect” Americans from noncitizens who “espouse hateful ideology” is at odds with our culture of free speech

    This executive order makes it federal policy to “protect [American] citizens from aliens who intend to commit terrorist attacks, threaten our national security, espouse hateful ideology, or otherwise exploit the immigration laws for malevolent purposes.” In addition to requiring agencies to ensure their policies for screening aliens align with the executive order, it requires the secretary of state to:

    Recommend any actions necessary to protect the American people from the actions of foreign nationals who have undermined or seek to undermine the fundamental constitutional rights of the American people, including, but not limited to, our Citizens’ rights to freedom of speech and the free exercise of religion protected by the First Amendment, who preach or call for sectarian violence, the overthrow or replacement of the culture on which our constitutional Republic stands, or who provide aid, advocacy, or support for foreign terrorists.

    The federal government has the authority to refuse entry to or deport people who genuinely present a national security threat. But the broad language of this order implies it may also be used to target people already in the U.S. for engaging in speech that is otherwise constitutionally protected. FIRE has previously expressed concern about denials of entry in cases where students and speakers were seemingly barred based on their speech. The ambiguous language of the order, including references to a “replacement of the culture,” suggests an intent to review and potentially punish foreign nationals for speech that would typically be protected.

    To be clear, speech that calls for violence is generally protected by the First Amendment. As we have previously written, calls for genocide or chanting “From the river to the sea,” though listeners may be offended or deeply upset, are generally constitutionally protected. Denying visas or deporting anyone who engages in such speech will create a chilling effect, deterring foreign nationals from participating in lawful protests and demonstrations.

    But just because the government may have the power to deport people for expressing their views, as it does in at least some circumstances, that does not make such deportations a good idea.

    While the driving force behind this executive order is the current Israel-Hamas conflict, there is no reason other than political whim that efforts to punish foreign nationals for their speech would stay confined to one side of that issue, or to the Israeli-Palestinian issue at all. If those targeted for “espousing hateful ideology” are today likely to be those supporting Hamas, a new government could aim such efforts at supporters of Israel’s military efforts in the coming years. Those from other nations experiencing ethnic or religious conflict, from Ukraine to Myanmar to Burkina Faso, could also face adverse immigration decisions for expressing their views.

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    Because this executive order is directed at foreign nationals, the legal First Amendment issues (as distinct from the cultural free speech questions) are complicated. The Supreme Court noted in Bridges v. Wixon that the freedom of speech is accorded to resident aliens, but other precedent upholds immigration consequences based on viewpoint, and immigration officials have targeted foreign nationals for deportation for otherwise-protected speech.

    In the 1904 case United States Ex. Rel. John Turner v. Williams, the Court upheld a law that allowed the deportation of “anarchists.” In the 1954 case Galvan v. Press, the Court upheld a law that allowed the deportation of non-citizens for belonging to the Communist Party. (Interestingly, statutory prohibitions on the naturalization of anarchists and members of the Communist Party still exist.)

    But just because the government may have the power to deport people for expressing their views, as it does in at least some circumstances, that does not make such deportations a good idea. Establishing a system that allows for the routine deportation of foreign nationals based solely on their otherwise protected speech would erode our national commitment to freedom of expression as a uniquely American cultural value.

    FIRE’s Senior Scholar, Global Expression Sarah McLaughlin published a piece at MSNBC exploring President Trump’s Executive Order on anti-Semistism.

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  • Politics determines whether Americans believe their free speech rights will be protected.

    Politics determines whether Americans believe their free speech rights will be protected.

    A new poll from the Foundation for Individual Rights and Expression finds that conservative and very conservative Americans have more confidence that President Trump will protect their First Amendment rights than Gov. Gavin Newsom or the Supreme Court. Liberal and very liberal Americans are skeptical that any of them will protect their first amendment rights, though they are most confident in Newsom.

    The fifth installment of FIRE’s National Free Speech Index further reveals that there is a partisan disagreement about the security of free speech in America and whether or not it is headed in the right direction. When it comes to whether people are able to freely express their views, conservatives are more likely to think that things in America are heading in the right direction and are likely to think that the right to freedom of speech is secure in America today, compared to liberals.

    This was not the case three months ago. 

    Overall, when it comes to whether people are able to freely express their views, 41% of Americans think things in America are heading in the right direction, up 5% from October when 36% of Americans felt this way. Yet, compared to last year, liberals and conservatives have swapped their perspectives on the direction freedom of speech is headed in America in this month’s survey. In July of last year, 31% of very liberal and 45% of liberal Americans reported that freedom of speech in America is headed in the right direction while just 16% of conservative and 20% of very conservative Americans reported the same. Then, in October, 46% of very liberal and 49% of liberal Americans reported the same while just 18% of conservative and 30% of conservative Americans did. 

    This month however, more conservative (52%) and very conservative (49%) Americans reported thinking things in America are heading in the right direction when it comes to freedom of speech compared to moderate (42%), liberal (34%) or very liberal (31%) Americans. After October last year, a drastic shift in ideological perspective on the state of free speech occurred between liberals and conservatives. While liberal and very liberal Americans were more likely to think that things in America were heading in the right direction in October, in January, conservative and very conservative Americans are now the ones most likely to report the same.

    In addition, last year, very liberal and liberal Americans reported much more confidence than conservative and very conservative Americans in the security of free speech in America. In July, 41% of very liberal and 30% of liberal Americans reported that the right of freedom of speech in America was “not at all” or “not very” secure while 49% of conservative and 61% of very conservative Americans reported the same. 

    In October, the partisan divide grew larger, with 32% of very liberal and 27% of liberal Americans reporting that the right of freedom of speech in America was “not at all” or “not very secure” while 55% of conservative and 60% of very conservative Americans reported the same. 

    The large partisan divide between the liberals and conservatives and the swap in their political viewpoints on free speech this month may be startling but a clear indication of how Americans are reacting to the outcome of the presidential election. 

    Yet, this month, liberals and conservatives have swapped their perspectives on the security of free speech in America, with 46% of very liberal and 36% of liberal Americans reporting “not at all” or “not very secure” and 29% of conservative and 41% of very conservative Americans reporting the same, showcasing conservatives’ growing trust that their free speech rights are secure.

    Moderates, on the other hand, have remained consistent in their views over the last six months, with approximately 40% of moderates reporting that the freedom of speech in America was “not at all” or “not very secure”.

    This quarter’s survey makes evident the ideological trends among Americans and their perspectives on the security and condition of their free speech rights. The large partisan divide between the liberals and conservatives and the swap in their political viewpoints on free speech this month may be startling but a clear indication of how Americans are reacting to the outcome of the presidential election. 

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  • POLL: Conservatives more optimistic, liberals more concerned about free speech in 2025

    POLL: Conservatives more optimistic, liberals more concerned about free speech in 2025

    • FIRE’s poll found confidence in the future of free speech is still low (41%), but jumped 10 points compared to a July poll.
    • Conservatives went from the most pessimistic subgroup to the most optimistic following Donald Trump’s election, while liberals’ optimism fell.

    PHILADELPHIA, Jan. 30, 2025 —A new poll finds that confidence in the future of free speech in America and belief in Donald Trump’s commitment to the First Amendment both saw an uptick, at least among conservatives. (Liberals are not so sure.)

    The newest edition of the National Speech Index — a quarterly barometer of free speech from the Foundation for Individual Rights and Expression — found that Americans are still mostly pessimistic about the state of free expression in America, with only 41% saying the country is headed in the right direction. 

    But those numbers represent an all-time high since FIRE began asking the question last year, and a 10-point jump from the 31% who said the country was headed in the right direction in July.

    The increase in confidence is driven in large part by a substantial surge in free speech optimism from self-described conservatives. The October edition of the National Speech Index found that less than a third (30%) of very conservative Americans and less than a fifth (18%) of conservative Americans said that people’s ability to freely express their views was headed in the right direction, while now roughly half of very conservative (49%) and conservative (52%) Americans now say it is headed in the right direction.

    “Unsurprisingly, the sudden shift suggests that for many Americans’ their feelings about the future of free speech depend in large part on whether they trust whomever occupies the White House,” said FIRE Research Fellow and Manager of Polling and Analytics Nathan Honeycutt. “Of course, we at FIRE have long recognized that no party has a monopoly on censorship.”

    Liberals, on the other hand, saw a drop in free speech optimism. In October, 46% of very liberal Americans and 49% of liberal Americans said people’s ability to freely express their views was headed in the right direction, compared to about a third now (34% and 32% respectively). That fall wasn’t large enough to outweigh the large jump from conservatives.

    When asked about Trump’s commitment to the First Amendment, opinions were mixed. While 39% said they had “quite a lot” or “full” confidence he would protect their First Amendment rights, 41% said they had “very little” or “no confidence at all.” But that’s still a seven-point increase from when FIRE asked the same question about then-candidate Trump in October, when 32% said they had “quite a lot” or “full confidence” in Trump’s protection of the First Amendment.

    For comparison, FIRE also asked about the Supreme Court and a high-profile elected official on the other side of the political aisle, California Gov. Gavin Newsom. Opinions on Newsom were split neatly into thirds: 34% said they had high confidence, 34% said they had some confidence, and 32% expressed low confidence. Meanwhile, only 23% of Americans said they had high confidence in the Supreme Court to protect their First Amendment rights, compared to 44% who said they had low confidence.

    “Though declining levels of trust in institutions is concerning, skepticism that politicians or the courts will protect your free speech is always a healthy instinct,” said Honeycutt. “The best defense against censorship isn’t a particular public official. It’s the American people themselves cultivating a free speech culture, defending others’ right to disagree, and holding leaders accountable.”

    As censorship attempts tend to target controversial and unpopular opinions, FIRE asked respondents to judge several political statements on how offensive they found them. The results showed that wide swathes of Americans identified statements on both sides of certain divisive topics as offensive. While 45% of respondents found it “very” or “extremely” offensive to say “Black Lives Matter is a hate group,” for example, 51% said “The police are just as racist as the Ku Klux Klan” was an offensive statement as well.

    Read more about the National Speech Index

    In another example, 40% of Americans believe that “transgender people have a mental disorder” — a sentiment banned on Facebook and Instagram until earlier this month — is an extremely or very offensive statement. But 59% also said the idea that “children should be able to transition without parental consent” was offensive. 

    “The problem with policing offensive speech is that there will always be disagreement on what is and isn’t offensive,” said FIRE’s Chief Research Advisor Sean Stevens. “Many people who want to ban offensive speech imagine they could never end up on the receiving end, but often what people find offensive changes rapidly.”

    The National Speech Index is a quarterly poll designed by FIRE and conducted by the Dartmouth Polarization Research Lab to capture Americans’ views on freedom of speech and the First Amendment, and to track how Americans’ views change over time. The January 2025 National Speech Index sampled 1,000 Americans and was conducted between January 3 and January 9, 2025. The survey’s margin of error of +/- 3%.


    The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

    The Polarization Research Lab (PRL) is a nonpartisan collaboration between faculty at Dartmouth College, Stanford University and the University of Pennsylvania. Its mission is to monitor and understand the causes and consequences of partisan animosity, support for democratic norm violations, and support for partisan violence in the American Public. With open and transparent data, it provides an objective assessment of the health of American democracy.

    CONTACT:

    Alex Griswold, Communications Campaign Manager, FIRE: 215-717-3473; [email protected]

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  • Baseless SLAPP suits threaten the speech rights of all Americans

    Baseless SLAPP suits threaten the speech rights of all Americans

    This article originally appeared in The Dispatch on Jan. 28, 2025.


    J. Ann Selzer planned to step back from election polling at the end of 2024. She had spent three decades working with The Des Moines Register and other media outlets, earning a reputation as “the best pollster in politics” for her consistent and reliable work. Selzer’s polls had correctly predicted the winner of every presidential race in Iowa since 2008, and she was hoping to end her election-related work with one last accurate survey of public opinion.

    But things turned out differently.

    Selzer’s final poll of the 2024 Iowa electorate, commissioned by The Des Moines Register, found that Vice President Kamala Harris was leading Donald Trump by 3 points. She was wrong. In fact, Trump won the state by more than 13. To her credit, Selzer was quick to own up to the margin between her poll and the eventual outcome. She explained her methodology and released the data she had collected in the process.

    “Polling is a science of estimation, and science has a way of periodically humbling the scientist,” she said in a November 17 farewell column for The Register. “So, I’m humbled, yet always willing to learn from unexpected findings.”

    Iowa pollster J. Ann Selzer

    President Donald Trump, however, doesn’t seem to think “humbled” is enough. That same day, Trump took to Truth Social to accuse Selzer of intentionally fabricating her poll and committing possible election fraud. A month later, he sued Selzer and The Register for alleged election interference and violations of the Iowa Consumer Fraud Act.

    It’s difficult to imagine a more thorough and obvious violation of basic First Amendment principles than this lawsuit. Polling the electorate is election participation, not interference—and reporting your findings is protected speech whether your findings turn out to be right or wrong. Iowa’s laws on election “interference” are about conduct such as using a counterfeit ballot or changing someone else’s ballot. This does not and cannot include asking voters questions about their votes.

    Any attempt to punish and chill reporting of unfavorable news or opinion is an affront to the First Amendment. Our rights as Americans, and participants in our democracy, depend on it.

    Trump’s claims of consumer fraud have even less merit. Consumer fraud laws target sellers who make false statements or engage in deception to get you to buy something, like a sleazy car salesman rolling back the odometer on an old sedan. This cannot logically—or legally—apply to a newspaper pollster who makes a wrong prediction.

    Consumer fraud statutes have no place in American politics or in regulating the news. But it has become an increasingly popular tactic to use such laws in misguided efforts to police political speech. For example, a progressive nonprofit tried to use a Washington state consumer protection law in an unsuccessful lawsuit against Fox News over its COVID-19 commentary. And attorneys general on the right used the same, “We’re just punishing falsehoods” theory to target progressive outlets. Both Missouri Attorney General Andrew Bailey and Texas Attorney General Ken Paxton opened investigations into the nonprofit Media Matters for America for allegedly manipulating X’s algorithm with “inauthentic behavior.” In the Texas suit, Paxton argues that he can use the state’s Deceptive Trade Practices Act to punish speech even if it is “literally true,” so long as officials think it’s misleading. 

    Efforts to prohibit purportedly false statements in politics are as old as the republic. Indeed, our First Amendment tradition originated from colonial officials’ early attempts to use libel laws against the press.

    America rejected this censorship after officials used the Sedition Act of 1798 to jail newspaper editors for publishing “false” and “malicious” criticisms of President John Adams. After Thomas Jefferson defeated Adams in the election of 1800, he pardoned and remitted the fines of those convicted, writing that he considered the act “to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”

    Trump’s allegations against Selzer are so baseless that you’d be forgiven for wondering why he even bothered. That is, until you realize that these claims are filed not because they have any merit or stand any chance of success, but in order to impose punishing litigation costs on his perceived opponents. The lawsuit is the punishment.

    Lawsuits are costly, time-consuming, and often disastrous to people’s personal lives and reputations. If you have the threat of legal action hanging over you for what you’re about to say, you will think twice before saying it—and that’s the point.

    In fact, Trump has a habit of doing this. He once sued an architecture columnist for calling a proposed Trump building “one of the silliest things anyone could inflict on New York or any other city.” The suit was dismissed. He also sued author Timothy L. O’Brien, business reporter at The New York Times and author of “TrumpNation: The Art of Being The Donald,” for writing that Trump’s net worth was much lower than he had publicly claimed. The suit was also dismissed.

    But winning those lawsuits wasn’t the point, and Trump himself said so. “I spent a couple of bucks on legal fees, and they spent a whole lot more,” he said. “I did it to make his life miserable, which I’m happy about.” Back in 2015, he even threatened to sue John Kasich, then-governor of Ohio and a fellow Republican candidate for president, “just for fun” because of his attack ads.

    This tactic is called a “strategic lawsuit against public participation,” or SLAPP for short, and it’s a tried-and-true way for wealthy and powerful people to punish their perceived enemies for their protected speech. It’s also a serious threat to open discourse and a violation of our First Amendment freedoms.

    FIRE’s defense of pollster J. Ann Selzer against Donald Trump’s lawsuit is First Amendment 101

    News

    A polling miss isn’t ‘consumer fraud’ or ‘election interference’ — it’s just a prediction and is protected by the First Amendment.


    Read More

    Lawsuits are costly, time-consuming, and often disastrous to people’s personal lives and reputations. If you have the threat of legal action hanging over you for what you’re about to say, you will think twice before saying it—and that’s the point. Trump’s dubious legal theory is a blatant abuse of the legal process, one that we cannot let stand. If we sued people every time we thought someone else was wrong about politics, nobody would speak about politics. A lawsuit requires a credible basis to believe your rights have been violated. You have to bring facts to court, not baseless allegations.

    That is why my organization, the Foundation for Individual Rights and Expression (FIRE), is defending Selzer pro bono against Trump’s SLAPP suit. By providing legal support free of charge, we’re helping to remove the financial incentive of SLAPP suits—just as we did when a wealthy Idaho landowner sued over criticism of his planned airstrip, when a Reddit moderator was sued for criticizing a self-proclaimed scientist, and when a Pennsylvania lawmaker sued a graduate student for “racketeering.”

    The protection of unfettered freedom of expression is critical to our political process. Any attempt to punish and chill reporting of unfavorable news or opinion is an affront to the First Amendment. Our rights as Americans, and participants in our democracy, depend on it.

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  • Have we been looking at free speech all wrong?

    Have we been looking at free speech all wrong?

    This blog was written by Rose Stephenson, Director of Policy and Advocacy at HEPI.

    Free speech is back in the news. Implementing the Higher Education (Freedom of Speech) Act 2023 was paused shortly after the general election to allow time for the Secretary of State for Education, Bridget Philipson, to consider whether the law should be repealed.

    Many expected that to be the case and were perhaps surprised to hear that the Government will implement the ‘Free Speech Act’ after all – with only two measures being considered for repeal – the duties placed on Student Unions and the statutory tort (the proposed legal route for individuals who suffer a loss due to a breach of their free speech). Bridget Philipson announced in the House of Commons that she proposes ‘keeping a complaints scheme in place with the OfS’. This scheme will consider complaints from staff, external speakers and university members, but not students (who can seek external review of a complaint with the Office of the Independent Adjudicator for Higher Education – the OIA). There are a couple of nerdy regulatory points to note here:

    1. There is still the possibility of the following scenario: A student raises a complaint of harassment from a member of staff. The institution concludes that the staff member did harass the student, and the staff member receives a written warning. The student believes that the outcome of the case was inappropriate and (following an unsuccessful appeal) takes the complaint to the OIA, who upholds the complaint and instructs the institution to compensate the student financially. The staff member feels that their free speech has been impinged by this process and raises a complaint with the OfS, who considers the complaint justified and instructs the institution to compensate the staff member financially. Therefore, we end up with a perverse scenario where two external bodies reach contradictory conclusions about the same event.
    • The OfS will not have a duty to assess every complaint it receives; rather, it will have the power to consider complaints. Bridget Philipson’s speech specifically mentioned the OfS not having to assess poorly put-together or nonsensical complaints. However, a robust, published decision-making framework will need to outline which cases the OfS will consider and which it will not, lest it be perceived that this loophole could be influenced by political persuasion.

    Policy wonks and those who must implement this legislation in institutions wait with bated breath….

    The quite extraordinary amount of time this legislation took to pass, plus the stopping and starting of its implementation, gave me time to ponder its practical implementation. I wonder if the focus of the free speech debate has missed the mark.

    Thousands of column inches have been dedicated to discussing free speech in university, including my own previous blog series:

    Much of the discussion has focussed on individual speakers being invited to campus to speak on particularly polarising topics. This may be an important part of promoting free speech, but if it doesn’t change anyone’s mind, is it just someone shouting into the void? Creating an in-person version of Twitter is unlikely to effectively promote free speech if only those who already agree with the speaker attend and those who feel offended by the topic or the speaker stay away. By almost solely focusing on this approach, we risk missing a significant opportunity.

    I’ve reflected on the circumstances that have led me to change my mind or opinion – or just to be genuinely interested in someone’s different belief or values system. It was not someone yelling polarising opinions but a considered conversation with someone who thinks differently from me. I have the genuine privilege of working with colleagues from across the political spectrum and engaging in debate and discussion, often publicly, on a daily basis. My ideas and beliefs are constantly challenged and given a chance to develop.

    One of the first lectures of my PGCE explained that ‘unlearning’ is much harder than learning. Therefore, if your pupils already believe that they know something, it is much more difficult to change their perception than to paint information on a blank canvas.

    If we truly want to promote free speech, we have to teach the skills of unlearning: curiosity, open mindedness, resilience and tolerance. This isn’t to say that all students should change their minds or perceptions. This might happen, but what we also need to develop is the curiosity to understand why someone thinks or believes differently from us. What led them to this belief? Why is it important to them? And, in turn, why do we hold the belief that we do? What led us to that viewpoint and why is it important to us?

    I appreciate that this becomes more complex when students’ own identities may be intertwined with these topics. While the right to speak freely is crucial, the choice to disengage from a topic that causes deep distress should also be respected. However, there are myriad interesting and challenging topics we can explore to learn from one another. One memorable experience from my time at the University of Bath was when a student explained to me that she found it patronising and incorrect for UK universities to teach that democracy was always the right way to organise society, especially when she observed greater poverty and inequality in the UK than in her home country. This didn’t alter my view on the importance of democratic rights or that it is the best way to organise society – but I’m so grateful that my ingrained belief and perception were challenged in this way and that I had the opportunity to consider an entire societal structure through the perspective of someone from a different background to my own.

    This conversation occurred by chance. As universities strive to promote free speech amidst the new registration requirements, how can we encourage the sharing of diverse, and at times challenging, opinions? Additionally, how can we teach the skills not only to debate our own views but also to listen to the opinions of others? Stimulating debate is, of course, the foundation of university teaching and research, and many institutions create spaces for this to occur daily. However, with ongoing criticism that universities are stifling debate and the new regulations coming into effect, providers will need to formalise and promote these opportunities. (Please write a blog for us if you would like to highlight your best practice in this area!)

    In the age of disinformation, where critical thinking is increasingly important, how can we expect students to critically analyse information shared by others if they cannot first critically analyse their own thoughts?

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