Wednesday, June 18, 2003

Fishing for FIRE 

Greg Lukianoff of FIRE has written a piece for the NAS Online Forum ripping Stanley Fish's latest writing in the Chronicle of Higher Education. Fish argues that in many cases, cries of "First Amendment rights" are a smokescreen for other arguments, ranging from protecting Tom Paulin's right to speak at Harvard or campus newspapers callously printing anti-Semitic screeds to the Emma Goldman Center fundraising letter.
But what it protects unpopular speech from is abridgement by the government of its free expression; it does not protect unpopular speech from being rejected by a newspaper, and it confers no positive obligation to give your pages over to unpopular speech, or popular speech, or any speech.

Once again, there is no First Amendment issue here, just an issue of editorial judgment and the consequences of exercising it. (You can print anything you like; but if the heat comes, it's yours, not the Constitution's.)

As Lukianoff points out, all Fish's chosen examples are relatively petty, including the Toni Smith case that Fish cites as a real example of First Amendment protection. In contrast, the cases that FIRE is pursuing, such as the proliferation of speech codes, are legitimate examples of First Amendment problems. Moreover, Lukianoff says of the cases Fish does cite,
They very easily could have become First Amendment or free speech cases, however, if the university had decided to take some action. Therefore, it made perfect sense for the students and the faculty advisor in the newspaper cases to remind the administration that, under the First Amendment, they could not be punished for their speech. Their "crying First Amendment" was not, as Fish smugly concludes, an act of ignorance, but rather an intelligent effort to avoid the fate of so many others punished for free expression on their campuses.
UPDATE: And it isn't like Fish doesn't know about FIRE. Erin fisked Fish already.