MSU student cleared of charges, but overzealous spam ban remains

This article appeared in The Huffington Post.

Readers of my previous two posts on Kara Spencer's "spamming" ordeal at Michigan State University (MSU) will be happy to know that MSU has finally come to its senses and dropped the ridiculous charges against the student government leader. This is a welcome change after MSU seemed ready to fight a losing legal battle. Unfortunately, MSU has yet to reform its unconstitutional and misguided spamming policy, which led to this trouble in the first place.

Spencer's troubles began last fall when MSU announced plans to shorten the semester by several days. Unsurprisingly, both students and faculty members felt they were getting a raw deal. Spencer worked with a university committee of students, faculty members, and administrators to compose their objections to the decision. Spencer then e-mailed eight percent of MSU's faculty and encouraged them to weigh in on the university's proposed changes.

So far, none of this should sound too out of the ordinary, right? Well, here's where things get interesting. Two days after sending the e-mail, Spencer was summoned to a mandatory "investigation" and told she may have violated up to five university policies. Following a university hearing, Spencer was found guilty under the school's absurd "spam" policy, which bans sending unsolicited e-mail to more than about 20-30 recipients over two days without prior permission and bans all such e-mails when they are "personal" or "political." (One wonders just what is left outside the realm of the personal and the political.) All of this despite the fact that her e-mail was not only timely, carefully targeted, and was about a matter that concerned everyone at MSU, but was also sent from her own off-campus e-mail account!

Thankfully, MSU has backed down in the face of much public criticism, including an open letter from FIRE, the Electronic Frontier Foundation, and eleven other civil liberties organizations. MSU withdrew both the charges and the record from her file, and promised that the policy would be reviewed. Almost home free, MSU, but not quite.

In private discussions with MSU administrators, MSU did promise not to enforce the policy in cases like Spencer's, but MSU has refused to suspend or revoke its spam policy while it undergoes revision. Not only that, MSU apparently has no plans to tell students about this change in enforcement. It seems that MSU is so worried about spam that it is willing to keep a clearly unconstitutional policy on the books.

In talking to friends about this case I have been surprised at how muzzy-headed people get around the issue of spam. I think people hate spam so much that they can't think straight whenever it is mentioned. One friend even argued that Spencer's speech could not be protected because it clearly violated university policy. As a favorite law professor of mine would say, "there is a certain roundness to that argument."

Just because you say something is spam does not make it so. Here, a reasonable student writing from a private e-mail account was perfectly within her rights to e-mail members of her community about an issue that was important to the whole community. Furthermore, a generalized ban on e-mailing groups of any more than "20-30" about personal or political issues would be laughed out of court. What MSU needs to understand is that it is not very hard to have a spam policy that does not violate the First Amendment.

An easy way to limit the scope of a spam policy to the genuine article is by limiting the policy to commercial speech. Commercial speech, which applies primarily to ads or other speech where the goal is to sell a product or service, enjoys less protection under the First Amendment and can permissibly be restricted in ways which are not acceptable when it comes to, say, political speech. Commercial speech, like ads for discount Viagra or suspicious-sounding dating services, is more along the lines of what one thinks of when we refer to spam. (Unless, of course, you still immediately think of the famous meat-substitute of the same name.)

If MSU wants to go beyond that, it should place more power in the hands of the recipients. Rather than passing some blanket policy blocking students from e-mailing faculty, the university should leave it up to professors to decide which e-mails they chose to read and, if necessary, should provide training about how to block unsolicited e-mails.

An illustrative case for the proper role of the IT department of a state college is the Supreme Court's 2002 decision in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton. There, the Court invalidated a city ordinance prohibiting canvassers from going door-to-door to promote any "cause" without first obtaining a permit from the mayor's office. In holding that the city's asserted interests in preventing fraud and annoyance did not justify the ordinance, the Court emphasized that the city maintained an ordinance section allowing residents to post "No solicitation" signs, and that residents were free to refuse to entertain conversations with unwelcome visitors. Applying the same logic to e-mail correspondence, the university should not act as the gatekeeper at all times for its 40,000 community members. Doing so only results in the type of heavy-handed approach seen in Spencer's case.

Finally, I am getting the feeling that many MSU decision-makers don't have a clear idea of the distinction between the use of university or departmental listservs and the general use of university e-mail accounts. Indeed, in discussions with administrators, we discovered they were concerned, for example, that students might send e-mails cheering on the basketball team to every professor at MSU. This is an odd example, since it seems unlikely that a student would painstakingly dig up every professor's e-mail address for such a reason. What they really may have been worried about (without fully comprehending it) is a student misusing a faculty listserv. Listservs are a method of e-mailing large numbers of users with ease, are typically used for discussion or correspondence regarding designated issues, and can, of course, be limited to topics like university announcements. The same rules, however, cannot and should not be applied to individual students' e-mail accounts, which are generally used as all-purpose lifelines to the outside world.

I hope that MSU realizes that personal use of one's e-mail account is just that, and is not a violation of some sort of campus rule. And I hope that students at MSU do not have to worry ever again about being treated the way Kara Spencer was. But if they do, you know where to reach me.