Santa Rosa Junior College Still Doesn’t Understand What ‘Overbroad’ Means
July 21, 2009
by Adam Kissel
Yesterday FIRE reported on Santa Rosa Junior College's unconstitutionally overbroad ban on the "unofficial" use of the initials "SRJC" (or the name of the college spelled out) in private speech, particularly in domain names and e-mail addresses.
Shortly after our press release went out, I took a call from Maria Gaitan, Executive Assistant to SRJC President Robert Agrella. Agrella had instructed her to call us to ask us to retract our so-called false statement, most of all because of his position that the ban is not actually a ban.
She also verified that the college is still pursuing "unofficial" use of the college's name, particularly to prevent "misrepresentation" of the college. Somehow, it is supposed to be OK that the college is not actively pursuing legal action against anyone, even though they say they will.
I replied that SRJC's ban is indeed a ban. In fact, SRJC does correctly ban some things that are actually unlawful. It is not OK, for instance, for a business to use SRJC's name without authorization in order to make money, or to say you're speaking on SRJC's behalf when it's not true, or to imply endorsement from or affiliation with SRJC when that's not true.
Parody, however, and many other uses of SRJC's name or initials, are lawful and don't need any kind of authorization. Thus, it is not OK for the college to issue broad threats of legal action against any community member who simply uses the college's initials in an e-mail address (like "email@example.com" or "firstname.lastname@example.org") or domain name, much less to ban all "unofficial" uses. When the uses of the name cannot reasonably be construed as implying official institutional endorsement or affiliation, such as in most e-mail addresses and domain names, such uses may not be banned, since that would violate the U.S. Constitution.
When a public college bans both lawful and unlawful speech, as SRJC has, it has enacted an unconstitutionally overbroad ban. It's comparable to throwing out the baby with the bathwater. Such a ban is just what SRJC not only has announced, but also has been enforcing and wants to keep enforcing. It simply is not constitutionally acceptable to ban as much speech as SRJC keeps saying it wants to ban, because doing so can impair the rights of others to, for instance, criticize college policies. This, as I tried to explain to Ms. Gaitan yesterday, is an unconstitutional chilling effect. To avoid being tainted by the bathwater, SRJC is getting rid of the baby.
I also told Gaitan that not pursuing legal action is not good enough; the chilling effect is bad enough to make the ban unconstitutional.
The easiest way for Agrella to get out of this pickle is to publicly announce that SRJC will ban only what the California Education Code actually bans (though it may be unconstitutional in its own right) but not a whit more. I hope he makes such a choice while the choice is still his to make.