College Censorship of Online Speech in 2008
December 23, 2008
This year, FIRE has seen a number of colleges take steps to regulate online speech. The Internet makes it easier than ever for people to communicate with one another, and thus presents a whole new world for would-be censors of campus speech. FIRE has kept a close watch on the developing relationship between colleges and online speech in order to prevent the establishment of deleterious, and potentially unconstitutional, practices.
The most recent online FIRE case involved Michigan State University's (MSU's) attempt to regulate its students' and faculty's use of e-mail. MSU found a student government leader guilty of spamming for sending out e-mails from her private account to 391 carefully selected professors regarding proposed changes to the school calendar.
As Adam detailed, the still-existing bulk e-mail guidelines MSU found the student guilty of violating are unconstitutional in numerous ways. First, the guidelines are both vague and content-based. The policy states that community members cannot send e-mails in bulk if they are "personal" or "political" in nature. The vagueness of this policy is evidenced in the current case. Even though the student was a student government leader writing solely to express her views on impending changes to MSU's official calendar—in other words, she was writing on clear matters of academic and public concern—the school found that her purpose in sending the e-mails was "personal." The fact that students cannot know which of their e-mails would be banned under these broad, undefined categories is just one of the constitutional infirmities of MSU's policy.
Second, for the categories of speech that community members could potentially send in bulk, MSU required the e-mailer to obtain permission from an administrator prior to sending the message. Such prior restraints on citizen speech rarely pass constitutional muster. The government must have a compelling justification for requiring citizens to obtain permission from government officials before speaking. It also must provide "narrow, objective, and definite standards" to govern when approval will be given. Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969). MSU failed to carry this "heavy burden"—reading the policy offers little hint as to when approval would be given, and no compelling justification was offered for the policy. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 558 (1976).
Restrictions on e-mail use, even if not content-based, must be narrowly tailored to serve a substantial governmental interest. Ward v. Rock Against Racism, 491 U.S. 781 (1989). MSU failed to meet the burden here as well. MSU asserts two justifications for its policy: one, to reduce the amount of undesired e-mail arriving in community members' inboxes; two, to keep its servers moving fast. As to the former justification, it is unlikely the government has a substantial interest in shielding citizens' inboxes from other citizens' speech. Only in very narrow and specific circumstances—such as inside citizens' homes—does the government have a substantial interest in shielding citizens from undesired, but protected citizen speech. Even if MSU did have that interest, however, this policy is not narrowly tailored. It blocks a great deal of wanted speech—for example, of the 391 e-mails the student sent in the current case, only one person complained. This suggests a not insubstantial number of people did not object to receiving the e-mail.
New technologies, such as e-mail, do not eradicate well-established constitutional principles. Consider, for example, if the government banned citizens from mailing out form letters to more than 30 people in two days—MSU's numbers for "bulk"—and justified it by a perceived need to protect citizens and public officials from undesired "junk" mail arriving in their mailboxes, and second, by a need to keep the postal system running as fast as possible. This content-neutral policy would clearly pose too great of an imposition on citizens' protected speech, as well as on citizens' right to petition the government. E-mail differs from paper mail in the ease with which it can be sent, but it also differs in the ease with which it can be deleted. The analogy between paper and e-mail is instructive for constitutional purposes, especially when it comes to matters of public concern. If MSU wants to reduce the number of undesired e-mails in a narrowly tailored fashion, it can provide individuals with spam filters and a mechanism by which they can personally add e-mail addresses to their spam list. This is the equivalent of writing "return to sender" on a letter, and it will effectively reduce undesired e-mail without MSU having to decide which categories of speech are most undesirable, which e-mails should be approved, or how many e-mails to other community members are too many—all questions a state institution has no business answering.
The other major regulation of online speech FIRE has seen this year is the selective blocking of websites based on their content. Most of the controversy has revolved around juicycampus.com, a website which provides a forum for people to post anonymous gossip about various campuses. Tennessee State University (TSU), a public college, has gone so far as to block it, and a couple of student governments have passed resolutions urging their schools to do the same.
TSU's university counsel argued that the Supreme Court held that a public library could filter pornographic websites, and, therefore, TSU could ban websites it deemed disagreeable from its computers. United States v. American Library Assn., Inc., 539 U.S. 194 (2003). This is incorrect for two reasons. One, the Court's American Library decision hinged on the fact that any adult library patron could have the filter removed simply by asking the librarian. TSU has not provided a way for university community members to access the blocked website on its network—it has simply blocked the website wholesale. Second, the decision arose out of an analysis of the traditional function of the public library, and it relied on the fact that children were often in libraries and might accidentally view the pornographic websites at question in that case.
In contrast to a public library computer, a university computer is much less likely to be accessed by children. Additionally, the university is traditionally a place where speech, no matter how offensive to some, is at its freest. The Supreme Court has continually affirmed the university as being "peculiarly the marketplace of ideas." Healy v. James, 408 U.S. 169, 180 (1972). When a university provides Internet access to nearly every website on the world wide web, it is obliged to not then step in and ban particular websites based on their "disagreeable" content. While it is true that the network is a public resource, so is the public square, the postal system and the general student activity funds that the Court has repeatedly held must be distributed by colleges in a viewpoint-neutral manner. Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217 (2000).
When venturing into the online world, colleges should resist thinking that providing an e-mail service or a connection to the Internet means that they can disregard traditional First Amendment principles. When a chancellor of one college tried to impose a content-based restriction on community members' e-mailing—ordering community members not to contact prospective student-athletes—a federal court not only found such a restriction to be a First Amendment violation, but it denied the chancellor qualified immunity—meaning it found the law in this area was settled and the chancellor could be held liable for that reason. Crue v. Aiken, 370 F.3d 668, 678 (7th Cir. Ill. 2004). Universities thus disregard traditional First Amendment principles in the online world at their own risk.
Generally, colleges should be extremely wary of blocking websites based on content or imposing onerous or vague restrictions on e-mailing. Unless such policies are narrowly tailored to a substantial, or in some cases, compelling government purpose, it is unlikely that they will pass constitutional muster. As Greg, Robert and Will have covered, this is for good reason: outside the classroom, a university should not attempt to determine which speech is "good enough" for students and faculty to have access to. The world wide web makes it easier than ever for citizens to speak to one another. A college should not try to squash this flourishing marketplace with restrictions and regulations which have no greater aim than to reduce the amount of protected speech or eliminate access to what it deems too offensive.