One of my favorite organizations, FIRE, has been arguing that free speech advocates are being hypocritical when we call for the heads of the presidents of Harvard, Penn, and MIT after their execrable performance before Congress.

I don’t need to rehash the entire series of events because, by now, we are all familiar with Elise Stefanik’s running circles around Liz Magill of Penn and Claudine Gay of Harvard in particular. The presidents came off looking indifferent to antisemitism on their campuses. (Hint: they are, in fact, antisemitic, but the substance of their answers would have been similar if they were strong advocates of free speech as they claimed).

pic.twitter.com/qk2UMcD7E6

— Rep. Elise Stefanik (@RepStefanik) December 8, 2023

I am a strong advocate of academic freedom and, indeed, of all free speech, and because of this, I am a strong supporter of the free speech organization FIRE. You should be, too, as they have been at the forefront of defending free expression.

FIRE has been highly critical of people like me who have come out strongly in favor of dumping Presidents Magill, Gay, and Sally Kornbluth of Penn, Harvard, and MIT, respectively. They argue that those of us who are calling for their heads are simply opening the door to more censorship on campus and will rue the day that we led the peasants with the pitchforks into the Ivory Tower.

Defending free speech can be hard.

Sometimes it requires defending offensive, vile speech that you may personally object to. But there is a long, proud tradition in America of principled civil libertarians defending our core constitutional rights in the most difficult of… pic.twitter.com/yaAhY28EOA

— Nico Perrino (@NicoPerrino) December 9, 2023

I strongly disagree, but not because I think that hostility to the Jewish state should be punishable.

To make my argument, I need to separate two different types of “speech” that are occurring on campus because some of it should be banned no matter the cause, and others should be defended no matter the cause.

A lot of what is being called “speech” is outright harassment. Preventing the free movement of people, interrupting classes, closing down buildings, and preventing the free speech of others is conduct that has nothing to do with the expression of ideas but is aggressive, at times tyrannical conduct. It is often specifically banned by the code of conduct at these universities (MIT famously threatened to expel students for this conduct, although they backed down, unfortunately). There is no exchange of ideas in such conduct, only a tantrum and has nothing to do with academic freedom. It harms discourse and isn’t discourse itself.

Then there is actual “offensive speech,” such as expressing the idea that Palestine should exist “from the River to the Sea,” which is a call for the destruction of Israel and its replacement with a Palestinian state.

This kind of speech should be protected, because it expresses an idea that can be argued with, defended, opposed, and can change minds. Even making the argument that Jews harm society, which is particularly offensive and is harassment-adjacent, should fall under the free speech exception. Arguing that some people are inferior or dangerous to society is an idea–a bad one, but an idea that can be debated. It may even be dangerous, but if it is not incitement, then we should tolerate and refute it.

So why am I happy that Magill is gone and Gay is on the chopping bloc? Shouldn’t I applaud their defense of free speech to Congress?

Let’s be real. Harvard and Penn are the two worst schools for free speech in the country–don’t trust me, trust FIRE–and Magill and Gay were not defending free speech at all. They were creating an “antisemitism” exception to their censorship regime that places the “safety” of some students above the rights of others. And “safety” is such a slippery concept that it means nothing more than college administrators can do whatever they want.

We shouldn’t concede a falsehood. There was no defense of free speech being put forward; what we saw was sophistry and contempt for free speech and the American people.

FIRE is arguably wrong about another point: that calling for the heads of Magill and Gay will empower these schools to clamp down on all speech. In principle, they have a point, except, in fact, they don’t because there is zero free speech on campuses already. People get punished for stating basic biological facts if they offend the wrong people, and academic freedom is already dead.

It can’t be deader. FIRE isn’t defending the last ember of freedom at Harvard. No heat is coming from that extinguished fire.

Academic institutions created these rules, and forcing them to live by them is a good way to make them scared of imposing them on others.

Next, there is the practical fact that while FIRE wins some worthy individual cases, the climate for free speech is objectively getting worse. As a practical matter, and practice does matter, not just principle, something needs to be done to stop that momentum. And several prominent people losing multi-million dollar jobs and a donor revolt is a very big something. Every college president is scared out of their wits, and they should be.

This creates an opening that did not exist before to improve things. We may fail, but holding academic institutions to the standards they set shocks the system, creating a space for negotiation. Maybe academics want a cease-fire? Maybe not, but maybe.

Simply put, I think FIRE is wrong because its defense of principle ignores the reality that this battle wasn’t about free speech at all. I can assure you that it will not be cost-free to suppress antisemitic speech, given the opinions of the student body. They are, for once, caught between a rock and a hard place, and they need to be put there to create a space for negotiation about the limits of free speech on campus.

Could we lose the free speech argument under these circumstances? Certainly, but we won’t lose free speech on elite campuses because it is already gone. Look at the FIRE rankings. Schools censor speech they don’t like all the time. Adding antisemitism to the list of prohibited speech is no loss because there is nothing to lose in any case.

I'm going to write about this later, but this is a dark, dark day or pretty much the only American institution that is committed to speech for speech's sake.

And it validates every single outgroup critique of donor presence in university communities.

Yuck. https://t.co/Vjgi39Es9Q

— Lee Kovarsky (@lee_kovarsky) December 9, 2023

The biggest issue with FIRE’s defense against this new infringement of free speech principles is that it concedes that there is free speech on campuses to defend right now. It doesn’t exist, at least at elite universities. They censor with abandon. It is laughable to argue that any of these presidents was defending free speech because they weren’t, and calling out their hypocrisy was a great step forward.

If Harvard was to replace Gay with a free speech advocate who defended anti-Israel and anti-transgender ideology speech equally, I would jump on the free speech bandwagon. But as it is, allowing Magill, Gay, or Kornbluth to pretend to care about free speech is no better than applauding Vladimir Putin for defending himself against Ukranian Nazis.

It is laughable, and we should laugh, not applaud him for opposing Nazism.

So FIRE, I applaud your defense of principles. But you need to explicitly call out the hypocrisy before you defend these presidents, who should have been fired long ago for their offenses against freedom of expression. Otherwise, you are just endorsing their lies.