Is FIRE Really for Free Speech?

Its record on pro-Palestinian speech is spotty

Protest against Itamar Ben-Gvir at Yale. Photo by Yash Roy via CNN.

Ever since the ACLU forfeited its status as the premiere free speech legal advocacy group in America by becoming little more than a mouthpiece for the Democratic Party, the Foundation for Individual Rights and Expression (FIRE) has thrived. It filled the space the ACLU has left vacant since at least 2016, filing lawsuit after lawsuit in defense of the First Amendment rights of both liberal and conservative speakers.

But on one issue — Israel’s war on Gaza — FIRE’s defense of free speech appears less than absolute. On the surface, FIRE has appeared to staunchly defend pro-Palestinian activity, at least in the context of clear-cut free speech violations. The group has fought to protect speakers critical of Israel, including Mahmoud Khalil, and has repeatedly condemned the Trump administration’s ideologically motivated attacks on universities.

But outside of those clear-cut cases, FIRE’s defense of the rights of pro-Palestinian protesters is lackluster at best.

Last Wednesday, Israel’s National Security Minister, Itamar Ben-Gvir, visited the campus of Yale University. Ben-Gvir is an extremist even by the standards of Israeli politics. He has used hunger as a weapon against Palestinian prisoners and publicly celebrated the memory of Baruch Goldstein, the Jewish terrorist who in 1994 massacred dozens of Palestinians as they prayed. By his own count he has been indicted over 50 times and convicted at least eight times, including for incitement to racism and assisting a terrorist organization.

Ben-Gvir met with students at a location nearby, but not on, the Yale campus. He was greeted by a group of protesters who chanted and hurled water bottles at him. The night before, the protestors had erected eight tents in violation of university policy for about three-and-a-half hours.

At one point during the Wednesday demonstration, the protesters were confronted by a pro-Israel student named Netanel Crispe who demanded they unlock arms so he could walk through the space they were standing in. There was a clear path for him to walk around them perhaps 50 feet from where he stood. The protesters repeatedly invited Crispe to take that path. Instead, he insisted on walking straight through the protest. The protesters refused to allow him to.

When Crispe posted a video of the confrontation online, Greg Lukianoff, CEO of FIRE, tweeted this:

Pro-Palestinian students have pulled these kind of blockades for years now. They have the right to protest, but don't have the right to block students, and if they're specifically targeting Jewish students to prevent them from crossing, then that is not just harassment, but even assault, as blocking comes with an implicit threat that anyone trying to get through will be met with physical force.

Yale needs to investigate this.

A couple of hours before Lukianoff tweeted his demand for an investigation of the protesters, FIRE’s Legal Director, Will Creeley, wrote a similar tweet: “Blocking passage through parts of campus isn’t protected expressive activity. Pretty straightforward.”

But when asked, FIRE declined to produce any evidence that the protesters were “specifically targeting Jewish students” or even that Crispe’s mobility was impeded to any non-trivial extent. Instead, they referred me to their official statement on the matter.

Yale University ended up going even further than what Lukianoff recommended: it revoked the registration of Yalies4Palestine as a student group, denying it use of campus resources. FIRE has not yet objected to this action. In their email response to me, FIRE pledged to defend Yalies4Palestine if it is persuaded that the group’s registration was revoked “solely on the basis of viewpoint discrimination.”

Yalies4Palestine did not respond to requests for comment.

FIRE’s public response to the Yale protest fits an emerging pattern. In the past, the group has scolded pro-Palestinian student activists for engaging in “disruptive protest” on private property and for using drums and bullhorns, proclaiming in the latter case that the students “should be punished.” FIRE’s CEO has called the pro-Palestinian protests of the last two years “mob censorship” and “an absolute disaster for campus freedom of speech” and accused protesters, without evidence, of targeting Jews.

Last week, FIRE stayed silent as the National Institutes of Health issued an unprecedented new rule that bans hundreds of thousands of research grantees from participating in any boycott of Israel. No other country is protected by such a rule. Researchers are free even to boycott American states without fear — just not Israel. FIRE has said nothing about this brazen censorship, likely because the group condemns the Boycott, Divestment and Sanctions movement against Israel as antithetical to academic freedom. Indeed, a few days after issuance of the rule, FIRE praised NIH Director Jay Bhattacharya for his commitment to freedom of inquiry.

When it comes to gray areas like non-violently disrupting events on campus or engaging in civil disobedience, FIRE has consistently policed the boundaries of speech in a far more restrictive manner than other civil liberties organizations have. Even the ACLU defended a pro-Palestinian protester who was punished for using a bullhorn, while FIRE has gone out of its way to criticize such protest activity as unprotected and deserving of discipline.

Groups like the ACLU have traditionally understood their mission to be to expand the parameters of First Amendment protections. FIRE seems to believe that its role is to fight for constitutionally-protected speech when there are clear violations and to call for investigations and punishments of protesters when they deem their activities out of bounds — or at least when that protest activity is critical of Israel.

With the overt politicization of the ACLU, FIRE is meant to be the standard bearer for the principled defense of free expression in America. But on this one issue it appears to have competing priorities — and that issue happens to be the one in the crosshairs of the Trump administration. Whether you believe that FIRE is hindering the White House in its sweeping attacks on political dissent or providing it with political cover may depend on one’s personal feelings about Israel and the war it is waging.