More tips for being non-partisan in a partisan age

It ain't easy, it can be exhausting, and you're not always going to get everything right. But you have to keep trying.

Over the past couple of months, I’ve explored how (despite numerous, contradictory, and ridiculous accusations to the contrary) FIRE has been able to remain non-partisan even in an era punctuated by intense partisanship. I also tried to turn that reflection into advice for others on how they can do the same. The first lesson was, basically, that we should all have a fierce and unwavering commitment to our principles — or, as we like to say at FIRE, Be willing to drive the bus into a wall before compromising them.

The second lesson was to consciously and actively promote and preserve viewpoint diversity among your ranks. Whether it’s your staff or your social circles, ideological bubbles and echo chambers are where free expression and the free exchange of ideas go to die. Once that happens, innovation, progress, and any hope of achieving your goals won’t be far behind. The alternative is gathering a cohort of smart people from different backgrounds and with differing perspectives who can disagree honestly and work together. This creates an environment in which your assumptions and arguments are constantly tested, sharpened, and improved upon. As my FIRE colleague

Angel Eduardo

likes to say, “Take your ideas to the gym. Subject them to rigorous resistance training. If they grow stronger, great! If they don’t survive, they don’t deserve to.”

The third lesson was to beware of what I call O’Sullivan’s Curse (also known as O’Sullivan’s First Law): “All organizations that are not actually right-wing will over time become left-wing.” The effect of this drift leftward will be a distortion and possibly even an inversion of the organization’s original purpose. As I said in that piece, FIRE is striving to be the one group that doesn’t fall victim to it, and the reason I bring it up as advice on being non-partisan is that understanding O’Sullivan’s Curse helps you recognize how to push back against it. We should all be wary of ideological drift, and maintaining political diversity is the first and best way to avoid it. Perhaps just as important, however, is a firm commitment to not letting external pressures dictate your direction.

The bottom line for all of this is that being truly even-handed and non-partisan ain’t easy. It can be and often is exhausting work, and you’re not always going to get everything right. And no matter what anybody tells you, the alternative — “just picking a side” — is far worse for everybody, including yourself.

So those are some of the FIRE-specific ways to do this, to stay non-partisan. But the following ones are especially important to remember in this utterly bewildering political moment. They may seem very basic, but it’s times like these when the basics matter more than ever.

Call out abuses on all sides

Particularly since its expansion off-campus in 2022, FIRE has taken on various presidential administrations when they’ve crossed the line into threatening free speech. For example, we challenged the Biden administration over jawboning social media companies, their speech-chilling attempts to combat online anti-Semitism, and their unconstitutional Title IX regulations. We also blew the whistle on the Obama administration’s Department of Education when it, in collaboration with the Justice Department, rewrote the federal government’s rules about sexual harassment and free speech on campus.

In keeping with this principle, we’ve also confronted the Trump administration when it has done wrong. For example, the decision to exclude the Associated Press from the White House press pool over its refusal to relabel the Gulf of Mexico as the not-at-all-insecure-sounding “Gulf of America” isn’t just petty, it raises genuine First Amendment issues. In 2022, Maricopa County officials denied a press pass for a reporter from “Gateway Pundit” — a Trump-supportive publication — to cover mid-term election events, arguing he had perceived conflicts of interest and he didn’t “seek the truth.” In issuing a preliminary injunction, the Ninth Circuit wrote, “Permitting ‘truth’ to be determined by the County violates our foundational notions of a free press.” (The case would ultimately settle.) Since it violates the First Amendment to permit the government to determine “truth,” what do you think it means when the White House says the AP is publishing “lies?”

We have also stepped up to defend Iowa pollster J. Ann Selzer against Trump’s outrageous SLAPP lawsuit, a speech-chilling bully tactic Trump is engaging in because Selzer made a political prediction he didn’t like. And then there is the FCC, whose Trump-appointed Commissioner Brendan Carr threatened to censor views he disliked, which we strongly criticized.

The point here is that no one ideology or political party has the monopoly on abuses of power and threats to First Amendment freedoms. To be non-partisan is to call these abuses out no matter who is committing them.

Give credit where credit is due

The flipside to the important work of calling out abuses is the task of applauding good behavior, which is almost as important. Both are key to remaining principled and non-partisan. Holding power accountable to both the Constitution and to free speech norms isn’t just about pointing out failures and “sticking it to the man”; it’s also about acknowledging when things are done right.

For instance, Trump’s initial blitz of executive orders raised a number of issues and concerns, but there were also some positive developments. His “Restoring Freedom of Speech and Ending Federal Censorship” executive order, which intends to “secure the right of the American people to engage in constitutionally protected speech” and “ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen” is a great first step toward resolving problems FIRE has been concerned with for years. Of course, we intend to hold Trump and his administration to their word on this, which is another reason it’s great to have them state it plainly.

More recently, policy speeches by Vice President J.D. Vance have echoed FIRE’s concerns regarding AI and free speech in Europe, highlighting that progress sometimes comes from unexpected quarters. Speaking at the Paris AI Summit, Vance warned against excessive, progress-inhibiting regulation and emphasized AI’s potential to boost our economies, create jobs, and push us into the future in ways we can’t even imagine.

I’ve been sounding this alarm for a long time — including as a witness at the House Judiciary Committee’s Special Subcommittee on the Weaponization of the Federal Government. A major concern for me on this topic has been how regulation of AI threatens the most important human endeavor there is: knowledge creation. AI has the potential to revolutionize knowledge creation, and the kind of top-down regulation many governments around the world are imposing or seeking to impose can squander all of it. For these reasons, I was very happy to hear Vance strike similar notes in his speech.

Vance also gave a great speech on Europe’s terrible free speech crisis at the Munich Security Conference this past Friday, where he made several important points that the leaders of Europe really need to hear.

Vance’s remarks encapsulate so much of what we at FIRE and ERI have been trying to explain to America: that the situation for free speech in the Anglosphere and in Europe is much worse than most people understand. Indeed, a major part of our plan for the coming year is to really double down on our efforts to explain to Americans how much worse it’s gotten.

For instance, as FIRE Senior Fellow

Jacob Mchangama

pointed out recently for

Persuasion

, Germany’s Vice Chancellor Robert Habeck “authorized a police raid of a man who had made various online posts, including a meme calling Habeck a ‘professional idiot.’” This is incredibly common in Germany, as a recent article on CBS News’ 60 Minutes outlines to terrifying effect. “Those on the receiving end include climate activists, pro-Palestinian activists, and ordinary people critical of their local political representatives,” Mchangama writes. “Even posting a book cover on X that features a barely visible swastika on a facemask — intended to draw sarcastic parallels between COVID policies and Nazi-era policies — can lead to a criminal conviction for displaying prohibited symbols.”

FIRE Senior Scholar of Global Expression

Sarah McLaughlin

has been highlighting free speech issues in Europe for a very long time — including in a recent post for FIRE’s blog:

Berlin police literally cut off the power to a pro-Palestinian conference because of “the potential for hate speech.” Then they shut down a pro-Palestinian protest because they couldn’t be sure if Irish protesters were saying something hateful in a foreign language — better censored than sorry. And what of the arrests of people who share, even unknowingly, a fake quote, because “the accused bears the risk of spreading a false quote without checking it”? Or of the man whose home was raided at dawn for tweeting at a local politician, “You are such a penis”?

Sarah’s Free Speech Dispatch newsletter has also highlighted a number of alarming actions and trends in Europe — particularly the U.K. This includes blasphemy laws, censorship of speech related to Israel, and police visiting people’s homes for offensive social media posts.

And don’t forget the fact that, as my FIRE colleague

Adam Goldstein

and I pointed out last year, online censorship in the UK has led to far more arrests than the first Red Scare.

So yes, given that one of our goals is to raise the profile of how bad it’s gotten for freedom of speech in Europe, we are thankful to the vice president for bringing this issue into the public consciousness at a level that we could never have done on our own.

The reason all this matters is that, while the First Amendment thankfully grants us tremendous protections that many Europeans are probably wishing they had right now, it’s not enough. As Learned Hand put it so beautifully in his 1944 “The Spirit of Liberty” speech, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.” If we think that America can continue to preserve freedom of speech even when other countries in the so-called free world are cracking down on it, we are kidding ourselves. If the free speech crisis currently gripping Europe continues the way it has been, it’s not just their expressive rights that are in grave danger, but ours as well.

Be willing to make common cause with ideological opponents

As he contemplated the challenges and pitfalls of advocating for abolition, Frederick Douglass began to see that dialogue with those who saw things differently was critical to achieving his goals. When the more stringent and radical abolitionists, whose motto was “No union with slaveholders,” criticized Douglass’ approach, he famously replied, “I would unite with anybody to do right and with nobody to do wrong.”

We can learn a great deal from Douglass’ wisdom here. The only way to make real progress is by forming coalitions around specific issues and collaborating, even if we remain deeply divided on other topics. You can’t claim to be non-partisan if you only call out one side when they do bad or only praise one side when they do good. You also can’t claim to be non-partisan if you won’t accept help from or collaborate with your ideological opponents on issues where you actually agree.

And here’s the thing: If you are waiting to only ally with a person, a politician, or — worse still — a political party that is never wrong on matters of freedom of speech, you will never partner with anybody. If we’re being honest, by that standard you likely wouldn’t even be able to partner with yourself.

The Trump administration, the Biden administration, and Obama administration all posed unique and distinct threats to free speech on a variety of issues. This is absolutely true, as is the fact that both Obama and Trump also did some good things for free speech. (I am, frankly and sadly, hard-pressed to think of things the Biden administration did to benefit free speech.)

Acknowledging both of these points at once doesn’t undermine my commitment to free expression, nor does it set me back in defending First Amendment rights and principles. On the contrary, it emphasizes my commitment and strengthens my footing as I move forward. Coalitions that win often involve disparate actors who disagree profoundly and passionately on any number of issues, but agree on one common goal. The fight to protect, promote, and preserve free expression is one that implicates and should concern everybody, and we’ll take any recruits we can get.

Don’t throw the people you’re defending under the bus

This is a small point, but a very important one. Too often, individuals and organizations unwittingly undermine their own causes by creating a degree of moral separation between themselves and whomever they’re defending on principle.

If you run an institution that’s trying to be taken seriously as non-partisan, you can’t say, “we hate this person’s politics, but nonetheless hold our nose to defend their free speech.” Once you do that, you’ve shown where your own political leanings are, which erodes the principle you’re defending. It also sets up the expectation that you’re always going to do that kind of throat-clearing in the future — and it’ll be even more conspicuous when you don’t. This is a lesson that our colleges and universities seemed intent on learning the hard way in the last few years, when they suddenly realized that their previous statements on things like Black Lives Matter made their silence on things like the October 7 attacks on Israel painfully apparent.

To avoid finding yourself in this quagmire and maintaining your non-partisan status, you have two options: Either you throw everyone under the bus (FIRE Legal Director Will Creeley and I joked that, just to be safe, we should always say, “Your honor, my client — who is of course, as always, a total asshole…”), or you avoid getting into moralizing in that way altogether. This is why FIRE (and, notably, Will Creeley, at our 2023 FIRE gala) constantly says that if it’s protected speech, we will defend it — no throat clearing, no apologies.

The nice thing here is that the viewpoint diversity I’ve been harping on this whole time helps keep us away from this problem. FIRE is sufficiently politically and ideologically diverse that, even if we wanted to point out that we think a particular client of ours is despicable, we wouldn’t be able to all agree on who that is. Even if by some miracle we could, it’d still be a bad idea because it would muddy the waters between defending the principle of freedom of speech, (which is our mission and our job), and defending a person’s views (which is not).

Times are tough, but they’re also not uncommon

It’s important to remember that the current political moment may be bewildering and exhausting, but it isn’t new. Partisan strife has certainly accelerated over the past decade, and that makes it more challenging than ever to maintain a non-partisan stance. But as I pointed out in my recent speech at the Russel Kirk Center, the kind of overall turmoil we’re seeing is, historically, quite commonplace. This is especially true during times where new technologies arise and shake things up, like the internet and artificial intelligence are doing for us right now.

Still, if we focus on calling out wrongdoing, giving credit where it’s due, collaborating on common issues regardless of other disagreements, and not throwing people we’re defending under the bus, we can continue to safeguard the principles of free speech and civic engagement no matter who’s in power.

SHOT FOR THE ROAD

Germany’s excessive regard for civil liberties, especially freedom of speech, lead to the Holocaust.

If you think that line sounds ridiculous and ahistorical, that’s because it is. Yet here is Margaret Brennan, host of CBS’s “Face the Nation,” making the bizarre (though, unfortunately, not uncommon) claim that “free speech was weaponized to conduct a genocide” in Germany:

I remember hearing this argument when I debated Richard Delgado, the grandfather of the modern speech code movement, back in 2004 at Williams College. His argument relied to a large degree on the idea that failure to punish the Nazis’ speech is how they came to power, but it’s somewhat refuted by the fact that…Weimar Germany actually punished Nazi speech quite often (spoiler: it didn’t work and, in fact, the Nazis used it to their advantage).

Here is FIRE Senior Fellow (and daughter of a Holocaust survivor) Nadine Strossen debunking this claim, which is appropriately named “The Weimar Fallacy.” Nadine and I also tackled this terrible and historically illiterate argument in our Answers to Arguments Against Free Speech series years ago. It’s a canard that really needs to die — but like a horror movie monster, it just keeps coming back: