Free Speech Rights Must Extend to Students’ Online Expression

This fall, FIRE is writing a blog series about how schools can reform their problematic speech codes and earn a "green light" rating from FIRE—a distinction currently awarded to just 16 of the more than 400 schools in our Spotlight database but one we hope to be able to award to many more in the years to come. So far, we have discussed how universities restrict speech by mandating "civility" and by improperly broadening the definition of "harassment." (Harassment, while not protected speech, is a term with a very specific legal meaning.)

Today we tackle another common problem: restrictions on the content of students' online communications. Many policies governing electronic communications were written years ago and at the time applied to a fairly narrow segment of student and faculty speech. Today, however, a tremendous amount of expression takes place electronically, whether over email or on social networking sites like Facebook and Twitter. The result is that university IT policies—which typically cover not only communications made using university email accounts, but any communications made on computers connected to the university's network—now apply to a lot of speech, and their terms are often restrictive. There are a number of schools in FIRE's database that are close to earning a green light and that could do so by eliminating overly broad or vague policies governing online expression.

At Elizabeth City State University, for example, the Internet Acceptable Use Policy prohibits the use of the university's network resources to "view or transmit" any "objectionable material." The policy does not define "objectionable material," leaving students to guess at what might be the consequences of robust or controversial online expression at the university.

Fayetteville State University and South Dakota State University both prohibit the use of computer resources to send "abusive" messages—a very common provision that is probably the most consistent problem FIRE sees with Internet usage policies. As I discussed in last week's blog on harassment policies, a prohibition on "abusive" speech is so vague that it potentially applies to many types of protected speech, such as an individual's harshly or angrily worded expression of opinion on a controversial topic. Given the amount of debate over divisive issues that takes place online, students cannot face punishment simply for posting a message that someone else subjectively deems "abusive." (In this heated election season, I can think of any number of recent political debates on my own Facebook news feed that might meet this description!)

Similarly, Occidental College's Computer Use Policy requires users to "use computing and networking facilities and resources in a manner that is not considered harmful or harassing to a person." While harassment is not protected whether it takes place online or otherwise, the policy provides no explanation of what types of use might be "harmful" to another person—could harmful use include causing hurt feelings or offense, even if not rising to the level of harassment, as defined by the Courts? Students have no way of knowing, and will likely self-censor as a result, which is precisely the problem with policies that are overly vague. A policy or regulation is said to be unconstitutionally vague when it does not "give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). Vagueness poses a particular problem when the regulation concerns free speech: "[W]here a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked." Grayned, 408 U.S. at 109 (internal citations omitted).

The University of Pittsburgh's Computer Access and Use policy contains another common mistake we see in university speech codes: a prohibition on "obscene language." Although true obscenity—a narrow term legally applicable only to some highly graphic sexual material—is not constitutionally protected expression, "obscene language," which is typically understood to encompass profanity or "swear words," is generally protected. In Cohen v. California, 403 U.S. 15 (1971), the defendant, Cohen, was convicted in California for wearing a jacket bearing the words "Fuck the Draft" in a courthouse. The Supreme Court overturned Cohen's conviction, holding that the message on his jacket, however vulgar, was protected speech. Similarly, in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), the Supreme Court determined that a student newspaper article at a public university entitled "Motherfucker Acquitted" was constitutionally protected speech. The Court wrote that "the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of 'conventions of decency.'" Id. at 670. Nonetheless, many colleges erroneously believe that they may legitimately prohibit profanity and other types of vulgar expression. 

The bottom line is that students' right to free expression on campus extends to their online expression as well, so a university's computer use and Internet use policies must not restrict the content of student speech any more than its policies governing other forms of student expression. Stay tuned next week for a discussion of university posting policies.