MSU Incorrectly Defends Itself in Response to Civil Liberties Coalition in ‘Spam’ Case

FIRE has received another strange, quite flawed response from Michigan State University in reply to an open letter to MSU's president signed by thirteen civil liberties organizations.

The open letter, written by FIRE in conjunction with the Electronic Frontier Foundation, explained why MSU's anti-spam policy is unconstitutional and pointed out the wrongful application of the policy to punish student Kara Spencer. Spencer, a member of MSU's student government, had selected and e-mailed a small percentage of MSU's faculty to ask them to make their voices heard regarding pending changes to the university calendar. In response, she had been threatened with suspension before receiving a lesser punishment.

There are several problems or mistakes in MSU's latest response letter (MSU's earlier, undated form letter is available here), dated December 23 and signed by Lee N. June, Vice President for Student Affairs and Services. In my estimation, these problems are so significant that June can no longer be considered a fair judge of the case. That's a serious problem for MSU because June is supposed to hear Spencer's next appeal (if necessary).

Below, quotations from the letter highlighting these problems are followed by my analysis.

You have encouraged President Simon to overturn the decision of the Student-Faculty Judiciary against Ms. Spencer. The University's judicial process does not provide for such a remedy.

Strangely, June seems to be claiming here that MSU's president does not have the authority to protect student rights when those rights are being violated by lower-level administrators. Apparently, MSU would rather let the violation of Spencer's speech rights meander through MSU's "judicial process" instead of ending the violation immediately, as MSU is legally obligated to do. If lower-level administrators are persisting in breaking the law by keeping Spencer's punishment on the books, higher-level administrators need to step in. If MSU administrators were breaking other laws, I trust President Simon would step in. Why not now?

I note that Ms. Spencer's deadline to file an appeal has not yet expired.

Equally strangely, June suggests that Spencer has not yet appealed, although Spencer says she appealed long before December 23. She awaits a response from the University Student Appeals Board. Is June simply unaware of what is going on?

I also note that your letter mistakenly assumes that the email communication at issue in this matter was sent by Ms. Spencer in her role as a student government leader.

Actually, our letter does not make such an assumption. We wrote that Spencer, a student government leader, wrote a personal e-mail about the proposed policy change: "Spencer is a student government leader. Her speech was in conjunction with a formal student-faculty committee's response to a significant change in the university calendar—a policy shift that, if enacted, would affect the entire MSU community. With the implicit approval of her committee, Spencer e-mailed a set of professors about a matter of campus concern."

That Spencer is a student government leader only adds to the shame of MSU's censorship. Again, no administrator or faculty member on the committee—all of whom had been notified in advance of Spencer's plans—suggested that there was any risk of Spencer's constitutionally protected e-mail being taken as "spam." Besides, her e-mail was in the name of "concerned students," which left unclear the extent to which she was writing not only in her own name, but also as a representative of any number of likeminded students.

Anyway, MSU's argument on this point is something of a smokescreen because MSU's anti-spam policy unconstitutionally prohibits "personal" and "political" speech regardless of the credentials of the speaker. Whether or not Spencer signed her name with her student government credential is irrelevant. Rather, our open letter makes clear that both the policy itself and its application against Spencer are unacceptable.

Ms. Spencer flatly refused to comply with the bulk email guidelines, stated that she would continue to send unsolicited emails to faculty on campus without approval, and demanded that the network administrator forward charges against her to the Office for Judicial Affairs.

Notably, this language closely tracks the complaint submitted by the network administrator, Randall Hall, even though the Student-Faculty Judiciary did not make such a finding of fact and Spencer has denied Hall's account. Undaunted, June has already decided that Hall's account is true and Spencer's account (which he has probably never heard) is false. How could June possibly be a fair judge of her case if it arrives before him on appeal?

Finally, with respect to your request that the University review its computer use policies, I note that such a review had already been initiated prior to the case at hand.

Torch readers should be laughing out loud at this zinger. We've heard the "a review is underway" line before—more times than we can remember. How convenient that the policy had already been under review!

Every day that Spencer's punishment remains on the books is another day that MSU is violating Spencer's rights and deepening the chilling effect on protected student speech. And every day MSU's shame grows stronger.