Coverage of NIU’s Response to Filtering Controversy Reveals Fundamental First Amendment Mistakes

Last week, we reported on the unacceptably broad network use policy adopted by Northern Illinois University (NIU) and implemented via heavy-handed filtering that was reportedly tripped even by certain Wikipedia pages, including the entry on the Westboro Baptist Church. The displayed warning message, which referenced the network use policy’s prohibition on visiting “unethical” websites, was fairly unambiguous in conveying that the restrictions were based on the content of those websites, and ominously warned that the “violation” would be logged and reviewed.

After the embarrassing story spread rapidly across the Internet, NIU attempted to defend the policy and its implementation by offering questionable and vague appeals to network security, ignoring the overarching problems with the policy as well as the direct evidence of its viewpoint-based application. Unfortunately, it seems that some media outlets were willing to simply take the university at its word that there is nothing to see here—such as The Huffington Post’s Emily Thomas, who uncritically reprinted NIU’s talking points. My colleague Susan Kruth took to The Torch and The Huffington Post in order to explain why nobody should have been satisfied by NIU’s lame and unpersuasive response.

Another blogger placated by NIU’s weak defense was Will Flanagan of Chicago Inno, who declared the controversy “completely false” on the basis of little more than pasted quotes from NIU’s Director of Media attempting to explain away public concerns over the university’s actions. But more than merely believing NIU’s self-serving claims that it isn’t behaving badly, Flanagan also made some rather startling claims of his own in an attempt to refute the concerns raised by FIRE and others.

Most astounding was Flanagan’s assertion that

[b]ecause NIU is a state institution, it also legally has an obligation to restrict access to sites that promote hatred. In the case of the blocked Wikipedia page that triggered the news firestorm, the reddit user was searching for 'Westboro Baptist Church.' [Emphasis added.]

The basis for Flanagan’s “legal” conclusion is unclear, but in any event, it is wrong. NIU has no obligation whatsoever to restrict access to websites that “promote hatred,” and in fact it is legally prohibited from doing so. As we have repeatedly explained, there is no such thing—legally speaking—as “hate speech.” Speech that “promotes hatred” is emphatically protected by the First Amendment, unless it also falls under one of the few (and exceedingly narrow) recognized categories of unprotected speech, such as true threats.

This principle has been reaffirmed countless times by the Supreme Court, including in the recent case of Snyder v. Phelps (2011) which—rather ironically, given the explanation provided by Flanagan—involved the Westboro Baptist Church itself. In holding that the Westboro Baptist Church could not be held civilly liable for picketing funerals from a public sidewalk simply because its speech was hurtful, offensive, or “outrageous,” Chief Justice John Roberts eloquently wrote that rather than censor,

[a]s a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Nor is it an answer that rather than prohibiting speech, NIU’s policy simply restricts access to certain speech (or implies that accessing it could result in discipline). Content-based restriction of access to information is equally noxious to First Amendment jurisprudence and principles. In Board of Education v. Pico (1982), a case involving the power of a local school board to remove books from public school libraries, the Supreme Court pronounced:

[J]ust as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.

[…]

[W]e hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." West Virginia Board of Education v. Barnette, 319 U.S., at 642. Such purposes stand inescapably condemned by our precedents.

These same principles have been applied in internet filtering cases at the primary and secondary education level. For example, in Parents, Families, & Friends of Lesbians & Gays, Inc. v. Camdenton R-III School District, 853 F. Supp. 2d 888 (W.D. Mo. 2012), a federal judge held that by utilizing an Internet filter that systematically blocked access to websites expressing pro-LGBT views, the school district engaged in unconstitutional viewpoint discrimination.

That the courts have disapproved of denying even primary and high school students access to certain information based on disapproval of certain viewpoints leaves precisely no room for the argument that such censorship can be tolerated at our nation’s colleges and universities. College students are overwhelmingly adults, entitled to the full protection of the First Amendment at a public institution like NIU. And not only is their access to the full marketplace of ideas legally required, but it is arguably even more essential, as students are expected to develop critical thinking skills and prepare themselves for imminent integration into broader society. An argument to the contrary would turn our system of higher education on its head.

Finally, Flanagan buys into NIU’s poorly-conceived rebuttal that students’ rights are not being violated because they can request a website be un-blocked:

In fact, all content is technically fair game. If a student runs into a filter message, they can submit an appeal.

This statement inherently contradicts Flanagan’s assertion that NIU must block access to websites that “promote hatred.” If this proposition were true (again, it is not), then all content is in fact not “fair game,” and under Flanagan’s assumptions, such an appeal would have to be denied.

That inconsistency aside, an appeal process does not obviate the constitutional infirmities of this policy and its implementation. NIU has an affirmative obligation to ensure that its firewall does not block information in violation of the First Amendment. To shift the burden to students to request access to a particular site is not only unacceptable, it is infantilizing and deeply chilling. Students should never be forced to ask permission to access certain information, and the hassle of having to make such a request would almost certainly dissuade some students from seeking access to information that they have been unconstitutionally denied. The judge in Camdenton R-III School District recognized as much, holding that the school district’s similar “unblocking procedure” did not cure constitutional defects in the filtering system, because it burdened a particular viewpoint and therefore had an unacceptable stigmatizing effect.

While Flanagan gets a lot wrong, he does reach at least one correct conclusion:

[I]t's now obvious that the Policy page needed to clearly define the difference between rules for students and rules for employees and that NIU was behind in communication.

Indeed, effectively communicating the difference between rules for employees and students would certainly help clear up some of the issues, such as the ability of students to use social media and engage in political activity online. But the problem runs deeper than NIU’s failure to clearly distinguish between students and employees in implementing its network policy. (To be clear, faculty employees at a university should not face Internet restrictions either.) The burden is on NIU—not its students—to ensure that its policies comply with the law. The university must revise both the network use policy and its implementing tools immediately in order to ensure that they clarify and respect the constitutional rights owed to NIU students.