Harvey Silverglate is an attorney and the founder and chairman of FIRE, the Foundation for Individual Rights in Education. He appears on The Bob Zadek Show as a guest in two episodes: a 2011 discussion of free speech on college campuses, and a 2022 discussion of the FBI. Across both appearances he argues that institutions—universities and federal law enforcement—have expanded beyond their proper limits and now threaten civil liberties.
Campus Free Speech and FIRE
In the 2011 episode, Bob Zadek introduces Silverglate as chairman and founder of FIRE, with thefire.org as its website, and notes that Silverglate is appearing for the second time Is Your Alma Mater a Soviet Gulag? (2011). The conversation concerns what Zadek describes as the erosion of free speech on American college campuses through harassment codes and free speech zones.
Silverglate draws a distinction between public and private universities. The First Amendment, he says, does protect student free speech on public university campuses because for constitutional purposes they are considered the government—a public agency. That is not true on private campuses, where free speech is protected instead by a principle known as academic freedom, which all modern liberal arts universities ascribe to. On private campuses, Silverglate argues, punishing a student for speech amounts to a promise being broken and a contract between college and student being broken. He acknowledges that academic freedom is a less certain and less strong protection than the constitutional right that applies at public universities, and says such protections are ignored by most university administrations—well over 50 percent.
Zadek questions whether academic free speech flows only to faculty. Silverglate responds that it can also flow to students, and that courts have in many cases held that it does, because college and university handbooks frequently state that the institution is a liberal arts university that respects the free speech of its students.
The Coddling of Students and the Wisconsin Repeal
Zadek argues that harassment codes coddle students, asking what kind of spine a graduate has if a 19-year-old must be protected from having somebody say something mean to them. Silverglate responds with a story from about fourteen years earlier, when The Shadow University was about to come out. He went to the University of Wisconsin, where the faculty senate was holding a vote seeking to repeal the speech code. A gay student spoke at a heavily attended faculty senate meeting, with media present, and said that while he had a tougher time in life than many students because he was gay, making it an offense for students to be frank with him about their views about him was a mistake. It was useful, the student said, to know what people thought of him, who were his friends and who were his enemies, because after graduating he would find that the First Amendment protects people’s rights to tell him what they think. Silverglate calls it the only instance he knows of where an entire speech code has been repealed by the faculty.
Zadek asks whether free speech restrictions are directed more at stifling speech from the right than from the left. Silverglate says Zadek is not overstating it, though there have been a significant number of instances—a sheer minority—in which students from the right have been censored. He attributes this to faculties and administrators generally being from the left, and distinguishes a libertarian left that believes in free speech from what he calls a very authoritarian and in some ways totalitarian left that has become ascendant on college campuses.
FIRE’s Ratings and Case Studies
Silverglate describes FIRE’s system of dividing campuses into three categories: red light schools with very restrictive speech codes, green light schools that allow free speech, and yellow light schools with some restriction on speech but not totally totalitarian. Zadek notes that people use the ratings as a guide for charitable giving and for where to send their children.
Zadek recounts the case of Mr. Sampson, a student janitor at Purdue University who was reading a mainstream inspirational book whose cover showed a Ku Klux Klan member. Silverglate says the charge was disguised as harassment—racial harassment—because it would upset a black person seeing him reading or carrying the book, and that Sampson was convicted. After FIRE got hold of the story and Wall Street Journal columnist Dorothy Rabinowitz wrote a column about it in July of 2008, the university backed down, acquitted Sampson, and publicly apologized to FIRE. Silverglate notes they never actually apologized to the student.
Zadek also raises the case of Roman Caple at St. Augustine’s College, who posted a negative comment on the university’s public Facebook page and was punished for what the university called a negative social media exchange. Zadek describes the punishment as petty and spiteful: Caple had to turn over his cap and gown to the security office and could not graduate publicly with his colleagues. Silverglate recalls that the comment concerned the administration’s handling of a tornado, and argues the administration was looking to deprive the public of knowledge of what happened when the school’s administration failed.
The FBI and Federal Overreach
In the 2022 episode, Zadek introduces Silverglate as an attorney who has made a career of preserving others’ civil liberties, litigating against the government in general and the FBI in particular The FBI: Our Uninvited Federal Police Force (2022). Zadek credits Silverglate with giving him FIRE, which he describes as protecting free speech on campus and those denied due process there.
Zadek asks whether Silverglate used the word “police” deliberately in referring to the FBI. Silverglate says he chose the term very carefully and intentionally: they are police, they don’t have uniforms, they wear suits, but they are policemen enforcing a federal criminal code that never should have been allowed to grow to what it is now.
Silverglate’s book Three Felonies a Day is discussed. Zadek summarizes its premise as the average American, whether they know it or not, going about their daily life, probably committing three felonies a day. Silverglate confirms this is a fair summary. He also argues that federal overreach is a result of the Civil War: the notion of states’ rights was blackened because the Southern states kept slaves, but that does not mean states should not have powers and rights the federal government does not interfere with. Slavery, he says, was responsible for the destruction of federalism in this country.
Zadek closes by drawing a parallel to the CDC, which he says was created to provide the public with information and research involving communicable diseases but whose last official act in COVID was a national eviction moratorium. He argues agencies decline and expand their goals when not examined. Silverglate directs listeners to HarveySilverglate.com to follow his writings.
Across episodes: Institutional Overreach
Both episodes turn on the same structural question: what happens when an institution created for a legitimate purpose expands beyond its proper limits. In 2011, the institution is the university, and Silverglate’s remedy is FIRE’s ratings, publicity, and the threat of withheld donations. In 2022, the institution is the FBI, and his remedy is abolition. The 2011 episode treats campus speech codes as a correctable breach of promise; the 2022 episode treats the federal criminal code as a structural problem rooted in the destruction of federalism. Silverglate advances the campus argument through the Wisconsin repeal and the Sampson and Caple cases, and the federal argument through Three Felonies a Day and the distinction between investigation and policing. Zadek frames both conversations, but the substantive claims are Silverglate’s.
What the sources do not cover
The excerpts do not state Silverglate’s age, birthplace, law school, or the dates of his admission to the bar. They do not name the specific statutes, bills, or amendments at issue in the campus cases beyond the general reference to the First Amendment, nor do they give the outcome of the Caple matter at St. Augustine’s College. The excerpts also do not describe the founding date of FIRE or the full range of its activities beyond campus speech ratings and due process. The 2011 episode breaks off mid-sentence at several points, and the 2022 episode’s middle sections are largely absent from the excerpts.
Episodes
2 appearances, 2011–2022.
- Is Your Alma Mater a Soviet Gulag? (2011) — Erosion of free speech on college campuses. Co-founder and Chairman of FIRE
- The FBI: Our Uninvited Federal Police Force (2022) — Abolishing the FBI and federal criminal code reform. Civil liberties attorney and FIRE founder