Universities Use Intellectual Property ‘Rights’ to Police Their Image

New York Magazine reports that over the weekend, the chancellor of Patrick Henry College (PHC) in Virginia threatened to pursue legal action against a student author of an unaffiliated, anonymous blog, Queer Patrick Henry College (Q-PHC), for a violation of the intellectual property of PHC. Here is a copy of a private Facebook message sent by PHC’s chancellor to the authors of Q-PHC:

While the chancellor used the term “copyright” in his Facebook message, it is clear from his subsequent withdrawal of the threat that he meant to protect the trademark of PHC against Q-PHC (whose content is reposted on its Facebook page). Briefly, one of the central aims of trademark law is to prevent consumer confusion, and it is clear that no one could confuse the blog Queer Patrick Henry College with the school Patrick Henry College. In less than 24 hours, thankfully, the chancellor backed down. Nevertheless, Q-PHC’s student owners have changed the name of the blog to Queer at Patrick Henry College.

So, with no legal legs to stand on, why did the chancellor of PHC threaten Q-PHC at all? And how does this represent a larger problem on American campuses?

Patrick Henry College is a quintessentially sectarian college. PHC is quite clear that it is an evangelical Protestant college; in fact, the first section of its student handbook outlines “Biblical principles” that form the foundation of its mission. Further, PHC prohibits advocating for “non-Biblical sexual practices,” such as extramarital and homosexual sex. Because PHC is clear about its beliefs, and because it is a private university, PHC has a well-settled First Amendment right to run itself in ways that many people might find offensive, or that would indeed be unlawful in other contexts. Students who attend PHC (and similar sectarian schools such as Catholic University of America or Liberty University) know what they are signing up for.

Yet while PHC has a well-settled First Amendment right to establish its own rules regarding gay advocacy and conduct on campus, this does not automatically translate into the ability to police every unwanted use of its name online. A similar, recent dispute at another private, sectarian university, Franciscan University at Steubenville, led to that administration threatening an unauthorized alumni group with legal action over the use of the college’s brand. FIRE has run into similar disputes at UCLA, UC–Santa Barbara, and UC–Berkeley, as well. In each case, university administrators threatened legal action over the use of the school’s name. And in each case, there was no confusion between the private speech at issue and official, institutional speech.

Intellectual property law is not usually one of FIRE’s concerns. But where, as here, a student isn’t claiming to speak on behalf of the university and nobody would reasonably assume he or she was, universities should not feel entitled to police such speech. 

College administrators nowadays are hyper-sensitive about their institution’s image. This may be partially due to outside groups often claiming that each and every expressive act at all relating to the university must therefore be endorsed by the university. Misattributing a student's or student group's speech to the university itself can be an effective tool for outside groups to ratchet up political pressure on the university to condemn a particular viewpoint or position. It is best simply to eliminate such tactics altogether by having a clear presumption that universities do not take any position on their students’ private speech and therefore do not need to affirm or rebuke such speech.

Indeed, rarely is there reasonable confusion as to whether a student is speaking for the university or not. Here, it is eminently clear that the owners of the Q-PHC blog do not speak for PHC itself, so there should be no reason for the chancellor to feel the need to clamp down on Q-PHC. The chancellor might have the unquestionable First Amendment right to speak with the Q-PHC bloggers and explain to them that the values of Patrick Henry College do not align with the Q-PHC blog. However, he and his university shouldn’t feel threatened by the blog: Any reasonable person will understand that PHC is an evangelical Protestant college with certain values regardless of the blog’s existence.

In fact, it is probably wiser for PHC and other sectarian universities not to police private speech. Not only does it take a tremendous amount of work, but it can create the presumption that if a university does not distance itself from a group or idea, the university is by default sanctioning that group or idea. Administrators at schools like Patrick Henry College should have more confidence in their institutional identity.