FIRE's Scorecard: 3 Wins, 1 Forfeit

Frequent readers of this blog know that Curmie views himself as more of a civil libertarian than a liberal.  There’s a lot of overlap, of course, especially in an era in which the POTUS is a narcissistic authoritarian.  (Curmie notes, apophasistically, that he didn’t use the word “fascistic” in the previous sentence.)  Curmie has followed FIRE, the Foundation for Individual Rights and Expression, since back in the days when the RE in their acronym stood for “Rights in Education.”  He doesn’t always agree with them, but he did recently renew his membership, if that tells you something, Gentle Reader.

We start with the “forfeit” part of the title of this essay.  Whereas it is true that FIRE concerns itself primarily with freedom of speech and assembly, they do proclaim themselves to be champions of religious liberty.  So Curmie finds it interesting (concerning?) that FIRE offered no opinion on the recent SCOTUS case regarding Oklahoma’s attempt to create a specifically Christian charter school.  SCOTUS ultimately upheld, which in this case means “didn’t overturn” a lower court ruling blocking public funding for such an enterprise.  The vote was 4-4, with Justice Barrett (to her credit) recusing herself, and presumably one of the conservatives (probably Roberts, possibly Gorsuch) joining the liberals in supporting the Oklahoma Supreme Court ruling.

Ultimately, the case boils down to whether direct funding of religious schools is different from indirect funding, and whether there’s a substantive difference between full and partial funding.  No one seems terribly bothered by students at Brandeis or Baylor or BYU getting Pell Grants, for example.  But completely underwriting the entire cost of a religious school with public funds seems a bridge too far to a lot of folks, Curmie included.

Curmie suspects that FIRE might not agree with him, given their interest in supporting individuals rather than society if the two come into conflict.  That’s okay, but if so, Curmie would like to see their reasoning.  Their silence on this matter does not do them credit.

Moving on to the wins.  (Note: a “win” here is not about a legal victory, but about being on the “right side” in Curmie’s opinion.)

Back in February, the Maine legislature formally censured Representative Laurel Libby for posting on social media about a trans athlete who had won a championship in girls’ track.  The athlete, a minor, was identified by name and school, and there was a photo of the podium in which the faces of other competitors were blurred, presumably to protect their privacy, but the trans athlete’s was not. 

There have been at least three cases in Maine this year in which a trans female (the same one all three times!) secured a podium finish in some sort of athletic competition; Libby has been vocal about at least two of them.  OK, did Libby deserve censure?  Yes: not for the political opinion, but for the manner it was expressed.  Is she a smug, narcissistic, reckless, grand-standing, hypocrite?  Obviously.  Is she a bully, as Anelise Feldman, the second-place finisher in one of those events, would have it?  Yep.  Does she care more about getting publicity for herself than for her cause?  Well, duh.  She’s this year’s Elise Stefanik.  Is she an idiot?  She’s a proud anti-vaxxer, which pretty much tells Curmie all he needs to know.  Is she a bigot?  Quite possibly, although the issue of how trans athletes should be treated is complicated, and reasonable people can disagree about this one.

But, as FIRE pointed out on May 8, there’s a difference of kind, not merely degree, between a censure and denying Libby the right to speak or to vote in the legislature.  Curmie may think that she’s a blight on society, but her constituents deserve representation, even if Curmie thinks they’d have been better off choosing someone else. 

Daniel Ortner’s piece for FIRE also accuses the Democratic majority of “end-running Maine constitutional provisions that say a representative cannot be expelled absent a two-thirds vote or recall election.”  Trouble is, he’s right.  Just because there’s an authoritarian buffoon in the White House and the Republicans in Congress are too stupid, too corrupt, or too craven to stand in his way doesn’t mean the Democrats won’t behave in exactly the same manner if given the opportunity.  Alas.

SCOTUS agreed this week in a convincing if not unanimous 7-2 decision.  The only good news on the ethics front for Democrats is that Justice Kagan agreed with the majority, and that Maine officials immediately acceded to the ruling, unlike a certain portly pettifogger.

The second win for FIRE is kind of a silly case, but it does point to larger issues.  Apparently there are no actual problems anywhere on the campus of the University of California at Irvine: no lack of funding for library books, faculty salaries, or financial aid, no administrators who see their primary job as justifying their existence, no over-emphasis on athletics (Go, Anteaters!) at the expense of… you know, actual education.  Nope, nothing like any of that. 

This is the only rational reason why the university should care about (wait for it) doormats in university housing.  You read the correctly, Gentle Reader: doormats.  The issue, you see, is that one particular doormat had (GASP!) writing on it!  Worse, that writing was “No warrant.  No entry.”  You see, there’s a policy… except that, actually, there isn’t.  More on that in a moment.

FIRE’s Graham Piro was all over this on May 15.  Piro notes that had there been a policy prohibiting doormats altogether (for safety concerns, for example), there would be no problem.  But apparently, it’s the fact that there are words on this particular doormat that’s the problem.

Piro references the university’s Graduate and Family Housing Policies.  Curmie read through all the sections that even might be relevant (he has a masochistic streak sometimes): not a word about doormats, or writing, for that matter. 

But the university does have a prohibition against “all outward‐facing signs, decorations, and expressions in windows/on doors,” “materials, signs, banners, posters, etc. … anywhere within Student Housing,” (no exception for inside apartments, by the way) and “materials… posted on windows, including windows in resident rooms.” This incoherent and redundant slop could only have been created by some administrator in either Student Affairs or Housing.  It does seem to suggest that someone putting up a poster for their next concert on the outside of the door to their apartment, or indeed anywhere in the building, would be in violation. 

That’s OK, though, because the administration cheerfully admits that rather than re-write the policy to make sense, they merely engage in selective enforcement.  Piro writes that “the office probably wouldn’t ask someone to remove a holiday snowflake display but that it has asked ‘people to take down things like Pride flags, country flags, and advertisements for businesses.’”  They place content restrictions on protected speech, in other words.  That’s not a reasonable time, place, and action restriction.  You can see why FIRE’s headline suggests that UC Irvine is “wiping its feet on the Constitution.”

Finally, there’s the Great Harvard Brouhaha, the most recent episode of which was the absurd attempt by Kristi Noem (a.k.a., Gestapo Spice) to de-certify Harvard’s Student and Exchange Visitor Program, making it impossible for the university to enroll foreign students, who make up over a quarter of the current student body.  Most of those affected are grad students from over 100 countries.

Noem, of course, is a sociopathic narcissist, but that hardly separates her from the rest of the current administration.  Her allegations—that Harvard was “fostering violence, antisemitism, and coordinating with the Chinese Communist Party on its campus”—are paranoid delusions.  The demand for “any and all audio or visual footage, in the possession of Harvard University, of any protest activity involving a non-immigrant student on a Harvard University campus in the last five years” is not merely creepy, but unconstitutional.

That’s not just Curmie saying that.  Here’s FIRE’s Legal Director Will Creeley: “The Department’s demand that Harvard produce audio and video footage of all protest activity involving international students over the last five years is gravely alarming. This sweeping fishing expedition reaches protected expression and must be flatly rejected.”

Noem’s other demands—for evidence of foreign students’ actually violating the law, for example—have little relevance to any honest attempt to review Harvard’s operations, but at least that thin veneer of authenticity remains.  Not so for footage of “all protest activity.”  Here’s FIRE’s Nick Perrino in a follow-up article titled “This isn’t just about Harvard”: 

The feds are demanding more than just information involving illegal activity or violations of the student code of conduct. They want footage of “protest activity” — including speech protected by the First Amendment.

And unless those protests involve only international students, American citizens will also find their constitutionally protected speech in the hands of America's national security apparatus.

And how, exactly, is Harvard to know whether that person in the five-year-old video is a). a Harvard student and b). a citizen of another country?  Creeley’s calling this a “sweeping fishing expedition” may just have been a little too kind.

The good news, for the moment, at least, is that Harvard immediately filed a lawsuit, and U.S. District Judge Allison Burroughs issued a temporary restraining order.  Travis Gettys’s article on RawStory says that Burroughs “wrote in her order” that “Revoking Harvard’s certification is unlawful many times over…. The government’s effort to punish the University for its refusal to surrender its academic independence and for its perceived viewpoint is a patent violation of the First Amendment.”  

She did not.  That quotation is taken from Harvard’s motion for the TRO, not from Burroughs’s granting of that application, which merely states that in the absence of a TRO, Harvard “will sustain immediate and irreparable injury before there is an opportunity to hear from all parties.”

This, Gentle Reader, is why a raised eyebrow of skepticism is always your friend, even especially if the site in question generally aligns with your perspective.  Burroughs may actually believe what she’s quoted as saying (we can hope so), but she didn’t say it.  We’ll find out more at the hearing in a few days.

In the meantime, we return to Will Creeley to take us home:

The administration’s demand for a surveillance state at Harvard is anathema to American freedom. 

The administration seems hellbent on employing every means at its disposal — no matter how unlawful or unconstitutional — to retaliate against Harvard and other colleges and universities for speech it doesn’t like. This has to stop…. 

Whatever Harvard’s past failings, core campus rights cannot and will not be secured by surveillance, retaliation, and censorship.

No American should accept the federal government punishing its political opponents by demanding ideological conformity, surveilling and retaliating against protected speech, and violating the First Amendment.

Well done, FIRE.

Curmie promised that this piece would be shorter than the last one.  It is, but it’s still pretty long.  The next one will be less likely to achieve TLDR status.