Like many an institution that started with a clear, legitimate purpose and drifted left, the Foundation for Individual Rights in Education has a new name—and, with it, a new and distorted set of priorities.
Rebranding as the Foundation for Individual Rights and Expression allowed it to keep the acronym, FIRE, but to abandon its tight focus on protecting free speech and ideological diversity on university campuses. That’s left it free to focus on other issues—including its latest endeavor, joining a legal petition by two unnamed student journalists at Stanford University who “fear adverse immigration action” for their writing.
The students claim that the Trump administration’s interpretation of immigration law is blocking their supposedly unlimited right to “protected” speech while here on temporary F1 student visas. What they want to write about is the war between Israel and Hamas in Gaza, and, judging by the complaint, they are not on Israel’s side.
The case FIRE joined highlights Mahmoud Khalil, a Palestine activist who arrived on a student visa and recently got his green card (permanent residence) through marriage. They also cite Mohsen Mahdawi, another student-turned-permanent resident who has reportedly been enrolled in college for more than 15 years.
Based on clear authority in immigration law, the Trump administration has lodged deportation charges against both Khalil and Mahdawi. They don’t want to go, and their cases are currently in legal process.
Khalil is not a U.S. citizen. His rights to a visa, permanent residence, and ultimately citizenship are determined by U.S. immigration laws. Under those laws, the federal government seeks to remove him.
Khalil reportedly lied in his application for permanent residency status by not disclosing that he worked for a U.N. agency suffused with Hamas supporters and for the British Embassy’s Syria section. Such “material misrepresentation” is an offence which can lead to a person’s status being revoked.
Marco Rubio also may have determined that Khalil is “[a]n alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have a potentially serious adverse foreign policy consequences for the United States,” a second reason for his status to be revoked and for him to be deportable under U.S. law.
At Columbia University, Khalil reportedly “took on a role as a negotiator representing CUAD”—that’s Columbia University Apartheid Divest, which wants Columbia “to divest from the zionist occupation and genocide of Palestine.”
More recently, Khalil told the New York Times’ Ezra Klein, “Unfortunately, we couldn’t avoid such a moment,” in what sounds like justification for the Hamas terrorist attacks on Israel of Oct. 7, 2023.
So why is FIRE, which used to primarily fight on behalf of conservative professors and students facing persecution by leftist universities, now choosing to champion foreigners advocating for the interests of a designated terrorist organization that has engaged in mass slaughter, rape, and hostage-taking?
FIRE sees its new mission as championing free “expression.” But no foreign citizen has an unlimited right to “express” themselves while they reside in the United States. Foreigners can be denied entry or be removed if they “endorse or espouse” terrorism, engage in criminal activity, seek to overthrow our government, or many other reasons. Foreigners cannot contribute to political campaigns or vote in elections.
FIRE and the Stanford students are asking the court for an injunction preventing their hypothetical deportation because of a hypothetical determination by the secretary of State that their presence is potentially harmful to U.S. foreign policy. This is obviously a test case with wide implications, not least for Khalil, Mahdawi, and others like them.
The plaintiffs may initially receive a favorable judgment because they’ve filed their case in a California district with no Republican-appointed judges. It is far less certain they will win on appeal, or at the Supreme Court. Case law is clear that the determination of whether an alien’s affiliations and views jeopardize U.S. interests is entirely up to the executive branch and not subject to judicial review.
By building a free speech case out of an immigration dispute, FIRE may not win its legal case. But its broader point is that we should favor more expression, even if that expression is not legally protected. That’s a cultural point more than a legal one. FIRE has untethered itself from a focus on universities and a concern for legally protected free speech to engage in an unbounded cultural crusade for “expression.”
But expression can mean anything FIRE wants it to mean. Foreigners have no right to reside in the U.S., nor does that privilege count as expression. And under its logic, FIRE may soon file lawsuits contending that it’s also protected expression for biological males to compete in female athletics and use female locker rooms.
If that sounds ridiculous, FIRE’s legal director, Will Creeley, recently made this argument on a Philadelphia NPR radio show. When asked how the University of Pennsylvania’s committing to keep males out of female sports and private spaces violated free speech, he answered that it did so “because [of] the willingness to use federal anti-discrimination law as a cudgel at Penn… to dictate terms of acceptable discourse per the federal government’s mandates.”
According to FIRE’s expansive understanding of expression, forcing women to allow men to play against them in sports is protecting free speech. This is like arguing that the bank robber who gives the teller a note saying “hand over the money” is just expressing himself.
Legally protected speech does not extend to all expressions by all people under all circumstances.
Title VI of the Civil Rights Act curtails speech (in federally funded universities) that is so severe and pervasive as to deny access to education by other students on the basis of race, color, or national origin. Title IX ensures equal access to college athletics and other opportunities on the basis of sex. Expression that violates Title VI or actions that violate Title IX are not protected speech; they are harassment or prohibited behavior.
The Immigration and Nationality Act establishes conditions for who can enter and remain in the U.S. Support for free expression has no more ability to override these laws than it does the laws against robbing banks. The First Amendment protects legal speech, not all “expression”—and the expression FIRE is suing to defend is not protected speech.
Since expression can mean anything and everything, there is no limit to FIRE’s future activities. Perhaps focusing on persecuted conservatives on campus was too confining for FIRE. Just as the ACLU has gone from protecting free speech to advocating for illegal immigrants and gender ideology, FIRE seems to have veered badly off course.