FIRE Is Wrong. Raucous Protest Is Free Speech.

Student activism is under attack. A hostile Congress has held higher education under increased scrutiny on this issue for two years running, and the Trump administration is now taking overt action to crack down on campus protest and free speech. The Foundation for Individual Rights and Expression, an organization known as a leading defender of fundamental rights on college campuses, has paradoxically exacerbated the situation through its annual College Free Speech Rankings. By assigning lower rankings to colleges with disruptive protests — and failing to account for the integral role of such protests in our First Amendment tradition — the FIRE rankings provide fodder for government attacks on campus protests.

In the 2023 and 2024 House hearings on campus antisemitism, lawmakers pointed to the low rankings assigned by FIRE to colleges with disruptive protests as evidence of poor free-speech climates potentially warranting government intervention. FIRE is now, belatedly, seeking to distance itself from the government’s use of the rankings. One FIRE representative called it “galling” to see the rankings “weaponized by Republican lawmakers”; another claimed that the use of the rankings in the congressional hearings was no more than “cherry-picking a data point or two” for political purposes.

FIRE’s recent expressions of dismay bring to mind the scene in Casablanca where Captain Renault (Claude Rains) tells the proprietor of Rick’s Café Américain (Humphrey Bogart), “I’m shocked, shocked to find that gambling is going on here!” Since their inception in 2020, a central feature of the FIRE rankings has been condemnation of disruptive campus protests. The methodology of the rankings leads to lower rankings for colleges where students are active and protests are flourishing. House Education Committee members did not “cherry-pick” data; they simply cited the rankings for what they are — a report that concludes that colleges where raucous and disruptive demonstrations have occurred are hostile to free speech.

The flaw in the rankings lies in their failure to account for the central role of disruptive, nonviolent protest in the development of free-speech doctrine and a concomitant abandonment of bedrock First Amendment tenets. The history of the First Amendment reflects a long tradition of contentious political protests, including campus protests, in the United States. From labor unions’ so-called “free-speech fights” at the turn of the 20^th century to the civil-rights sit-ins and antiwar demonstrations of the 1960s to the recent pro-Palestinian campus encampments, political dissent has often involved discordant and clamorous protests. They have provided the context for many of the leading First Amendment court decisions in the latter half of the 20^th century.

FIRE’s model of proper protest, conversely, is more akin to a polite debating exercise. FIRE endorsed, for example, Stanford dean Jenny S. Martinez’s response to protesters heckling of an invited speaker at Stanford Law School, in which she stated that appropriate protest of a campus speaker would include quietly holding signs, asking questions “during a planned Q&A,” or “holding alternative events where [protesters] can share their own views without disrupting the invited speaker.” But political protest is rarely so limited to the solemn scenes evoked by Martinez and embraced by FIRE. It’s usually a group activity, sometimes in the form of mass demonstrations. It is often tumultuous, noisy, and disruptive. That’s the point. Disrupting ordinary routines, choreographed speakers, or other aspects of your daily programming is what protest is all about. The goal of protest is to direct your attention elsewhere, to the object of protest.

The FIRE rankings rest on the view that disruptive speech, objecting to speakers who are scheduled to speak, and heckling speakers at campus events are forms of censorship, denying the free-speech rights of others. A significant portion of the rankings turns, first, on student survey responses — including in particular students’ views on the acceptability of disruptive protest, such as shouting down speakers — and second, on the number of speech controversies on campus, including nonviolent student protests against invited campus speakers. Points are deducted, and rankings are lowered, for colleges where students find disruptive protest acceptable and where student protests result in deplatforming of a speaker (or even where there is an attempted deplatforming). The FIRE rankings thereby do not just ignore the concept of disruptive protest and dissent as a fundamental component of free speech — to the contrary, they count disruptive protests as a negative in their calculations. For example, the University of Chicago’s ranking dropped from 13 to 43 with the 2025 rankings; FIRE said that the drop was “primarily due to two incidents” where protesters disrupted speaker events with heckling.

FIRE’s approach is wholly unmoored from the First Amendment. Speech by private actors, even where it is insulting, outrageous, or spoken foolishly and without moderation, is entitled to free-speech protection as much as any other form of speech (excluding of course unprotected speech, such as threats, harassment, or incitement). The FIRE rankings do not account for this concept of raucous counterspeech. How can this be? Well, a close reading of the FIRE rankings shows that despite frequent references to “free speech,” “free expression,” and the “free exchange of ideas,” those terms remain undefined by the rankings, and without reference to the First Amendment.

Raising arguments against a campus speaker who is scheduled to speak — deplatforming (or attempting to deplatform) the speaker, in FIRE’s lingo — is protected speech under the First Amendment. Yet such protest is a cardinal sin under the rankings, which punish colleges “if an invited speaker withdrew because of the controversy caused by their upcoming appearance on campus.” A FIRE spokesperson has referred to such speaker protests as “mob-style deplatforming demands.” FIRE’s view is directly antithetical to free-speech principles. Protesting campus speakers — trying to persuade university administrators to retract an invitation, or seeking to convince students not to attend an event — is protected speech and should be recognized as such. Yes, such protest is based on the view that the speaker should be disinvited and doesn’t deserve to be heard, and yes, that may seem harsh or mean-spirited. But that’s not censorship — it’s simply protest by private actors.

Heckling a speaker is another grave offense under the rankings. Yet there is a sound argument that protester counterspeech in the form of heckling (even heckling that may disrupt a speaker) is protected speech under the First Amendment. Heckling is symbolic speech; it consists of words and noises that take meaning from the object to which they are directed, and thereby communicate ideas. As such, it is as entitled to First Amendment protection as much as any other speech. In the words of the California Supreme Court, “heckling, interrupting, harsh questioning, and booing, even though they may be impolite and discourteous, can nonetheless advance the goals of the First Amendment ... The heckling and harassment of ... speakers while making public speeches is as old as American and British politics.” The speaker on stage with the microphone, relative to the protester engaging in counterspeech, has no greater right to the audience, at least as far as the First Amendment is concerned. As the Third Circuit’s Walter King Stapleton stated in a First Amendment case involving speaker protests, the government “may not, consistent with the First Amendment, silence protected speech based solely on their judgment that it is interfering with competing protected speech.”

Of course, campus speaker events can be regulated by time, place, and manner restrictions. Moreover, those events are fairly characterized as “limited public forums” under First Amendment law, and therefore may be subject to greater restrictions than would be found in a traditional public forum. But those limits must still be reasonable, evenhanded and nondiscriminatory. Thus, time, place, and manner restrictions are permissible provided they are viewpoint neutral and leave open ample alternative channels of communication for the information.

And there’s the rub under First Amendment law. In the case of a campus speaker event, a protester’s counterspeech — whether by heckling or otherwise — is by definition in opposition to the speaker and his or her speech. Thus, any restriction on that counterspeech would not be viewpoint-neutral, as such a restriction would be based on its hostility to the speaker’s viewpoint. Harvard Law’s Mark Tushnet offers a clarifying example: “Suppose the heckling takes the form of repeated shouts of ‘You lie!’ (remember Congressman Joe Wilson?) and the like, at every assertion by the speaker, to the point where the speech is disrupted.” A restriction limiting or prohibiting such speech would not and could not be viewpoint-neutral. This conclusion is reinforced by the fact that disruption by supporters of the speaker, in the form of clapping and cheering, delaying and disrupting the speech, would presumably not be limited. In Tushnet’s view, therefore, not only do “people who attend a speech and vigorously disagree with the speaker by shouting him or her down [not] violate the speaker’s constitutional rights,” but it’s doubtful that “there’s a way to strike [the] balance [between the competing speakers] that doesn’t take content into account.”

There is also an argument that barring counterspeech (including heckling) at a campus speaking event in most cases would not be a reasonable restriction because there is no comparable, adequate alternative forum for a protester to convey his or her message in the same way to the same audience. The immediacy of the message would be lost, diminishing the effectiveness of the communication, if the counterspeaker were to be shunted to an alternative forum. As the Supreme Court has stated, “One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”

None of this is to say that heckling speakers is an activity that need be praised or encouraged; the point is that in assessing free speech on campus, there is a sound basis to assert that as nonviolent (albeit disruptive) protest, it constitutes a form of protected First Amendment activity.

Conflating social sanctions, such as protesters’ speech and expressive conduct, with First Amendment violations furthers a misimpression that expression by private actors (such as voicing criticism or disagreement) can be limited or prevented in the same way government censorship can be regulated or prohibited. But the two are fundamentally different, and social sanctions in this context cannot be analyzed the same way as government sanctions. Limits on social sanctions necessarily result in limits on someone else’s speech, and the parameters for imposing such limits are not easily determined. Social intolerance is wholly different from government intolerance, and although it may be subject to assessment and measurement, it’s not subject to the same yardstick.

FIRE’s blurring of the distinction between social sanctions on speech and First Amendment legal violations opens a door to the troubling possibility of government action to restrict the speech of protesters and activists — for if social sanctions are to be regulated, how and by whom shall that be done, other than by the government? As the law professor Mary Anne Franks writes, “The continued insistence that actions of private entities pose an equal or greater threat to free speech than those of governmental officials eventually leads to only one result: the imposition of government censorship as the answer to private censorship.” The beginnings of such censorial efforts were seen in the 2023 and 2024 hearings and reports of the House Committee on Education and the Workforce. Indeed, that committee stated that “shout downs” and “disinvitations of speakers” are all part of a “rising assault on free speech,” and threatened potential legislation.

By incorporating social sanctions into their methodology, and abandoning the First Amendment as a guidepost, the FIRE rankings articulate a view of the world in which the concept of free speech does not allow for an active, vocal campus where political protests are common, and where there may be tempestuous, disruptive, and at times angry debate. Unruly dispute, harsh speech, even heckling, are all expressive and fall under the domain of free speech. There are no minimum standards of civility or rationality that speech must satisfy in order to merit First Amendment protection. Civil, polite debate is of course an ideal to strive for, and should be praised. But civility is not required by the First Amendment, and it is arguably not what broader principles of free speech demand. Intemperate speech and incivility are firmly ensconced in our First Amendment tradition and any assessment that suggests otherwise, like FIRE’s, misses its mark.

Parts of this essay are adapted from articles first published in the Virginia Journal of Social Policy & the Law and the Albany Law Review.