‘Content Neutral’ Does Not Mean ‘Constitutional’ (Except at MSU)
December 9, 2008
by Adam Kissel
The worst problem in the Michigan State University "spam" case—where a student government official, Kara Spencer, faces suspension for having e-mailed 391 carefully selected professors about proposed changes to the campus calendar—is not an administrator's outrageous claim that receiving a single unsolicited e-mail is considered a disruption to whoever receives it. No, the worst problem in this case is the false claim made by President Lou Anna K. Simon that MSU's unconstitutional anti-spam policy, which bans unsolicited e-mails to more than about 20–30 people over two days, is constitutional simply because it is content neutral. That's not only a false premise, for the policy is explicitly not content neutral, but also a false conclusion, and it is exceedingly shameful that MSU has taken this doubly false position.
We have just received a copy of a response that President Simon sent to a concerned citizen who wrote her about the case. Simon argues:
It is clear that this policy is content neutral and is a set of procedural requirements that apply to all bulk use of the e-mail system, as opposed to a policy that makes distinctions based on the content of particular emails. It is our belief that such a policy does not impose unlawful restrictions on free speech.
Actually, the policy is unconstitutional for multiple reasons. First, "content neutral" does not necessarily mean "constitutional." An unconstitutional restriction that restricts everybody is unconstitutional just the same; in fact it is worse because it restricts the speech of everyone. Federal courts have repeatedly held that "time, place, and manner" restrictions on speech must be "narrowly tailored" to serve substantial governmental interests. Ward v. Rock Against Racism, 491 U.S. 781 (1989). MSU's anti-spam policy is not even close to sufficiently narrow to meet this standard, and it's very, very difficult to see how prohibiting students from e-mailing faculty members without prior permission from administrators would ever be in service of a substantial interest at MSU.
Indeed, the "procedural requirements" invoked by President Simon are a substantial reason why the MSU policy cannot pass constitutional muster. According to the U.S. Supreme Court, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth v. Birmingham, 394 U.S. 147, 150–151 (1969). MSU's policy, which requires a "license" from the university in that it prohibits sending more than about 20–30 e-mails without prior approval, and which explicitly prohibits such e-mails "for personal purposes, advertising or solicitations, or political statements or purposes," includes standards at its core that are far from narrow and far from objective. The policy therefore is unconstitutional.
This brings me to MSU's false premise that the policy is content neutral. The policy clearly is not. It is important to remember that according to this policy, there is no way that Spencer's personal e-mail ever could have been legitimately sent out. To suggest that all Spencer had to do was follow the "procedural requirements" is disingenuous, or at the very least such a statement demonstrates basic unawareness of the facts of the case. The policy is not content neutral because "personal" speech such as hers is never permitted.
The judiciary examining Spencer's case today should declare that the three-month investigation is over and Spencer is entirely free from punishment. The judiciary should not contribute to enforcement of an illegal policy that violates the expressive rights of everyone on campus. Regardless of whether Spencer violated the anti-spam policy, the judiciary cannot lawfully punish Spencer (not even with a finding of guilt on her record, a warning, or a reprimand) because doing so would violate her First Amendment right to freedom of expression. The policy is so obviously unconstitutional that if Spencer were punished and she chose to sue the judiciary, its members might not even enjoy qualified immunity—that is, they could be sued in their individual as well as professional capacities. I would rather see MSU voluntarily amend its anti-spam policy to conform to the First Amendment, however, and it is not too late.