Memory-holed: Universities and Internet Speech

Introduction

In 2020, the relationship between internet speech and higher education became increasingly complicated as COVID-19 pushed conversations — and classrooms — online. Because of the pandemic, universities have been forced to contend with questions about maintaining academic freedom while teaching to online students across borders and addressing challenges like “Zoombombing.”

While the difficulties brought by online onboarding due to COVID-19 are generally new, universities’ struggles with respecting student rights online are not. The internet doesn’t function in exactly the same way as a campus quad, but that doesn’t mean public universities, which are bound by the First Amendment, or private universities, bound by their commitments to free speech, have carte blanche to censor or punish their campus communities when they speak online.

In our two decades of defending freedom of expression on American campuses, the Foundation for Individual Rights in Education has repeatedly pushed back against universities’ efforts to punish students and faculty for engaging in protected speech online.

In Memory-holed: Universities and Internet Speech, FIRE will address some of the many violations of free speech universities have committed with respect to internet expression, including on social media, email, and other platforms. These stories, split into discussions detailing censorship of students and faculty, include a professor who was sanctioned for a social media post that referenced Game of Thrones, a student website that was blocked for advocating lower tuition, and unsurprisingly, plenty of controversial tweets. The report also tackles the student conduct policies universities employ that grant them immense power to punish large swaths of internet speech, often in violation of the First Amendment or free speech commitments, and universities’ relationship with content moderation on social media. Memory-holed: Universities and Internet Speech is intended to help promote a broader understanding of the relationship between universities, freedom of speech, and the internet. FIRE hopes that it provides a lens through which common campus censorship issues — like controversial political commentary or speech blatantly misinterpreted as “threatening” — can be understood.

Has your university violated your rights, online or off? Contact FIRE

Social Media Censorship

If you see a post on social media that you don’t like, you have a number of options: ignore it, respond to it, log off, or just go outside for a while. Unfortunately, some universities have taken it further — quite a bit further, as the FIRE cases below demonstrate.

Students

Wilson College (2006)

Before Twitter, Instagram, and Facebook, we had Myspace. Unsurprisingly, our list begins there. Back in 2006, FIRE advocated on behalf of five Wilson College students over charges stemming from a parody Myspace account. The students faced accusations of slander, identity theft, and harassment for posting parody materials of a campus administrator on a Myspace.com profile because they were listed as “friends” of the account. The students were found guilty of the charges. But after the students appealed, they were told that the charges were merely “pending.” Administrators also attempted to attain waivers from the students permitting Myspace to share information about the account’s creator, a request the students denied. Years later, the United States Court of Appeals for the Third Circuit, sitting en banc, took on two K-12 cases similar to the one at Wilson College and held that the students’ First Amendment rights were violated. In both cases — at a middle school and a high school — the student at issue had created fictitious Myspace profiles of their school principals, used a photo of the principal from the school’s website, and characterized the principal in derogatory ways. Both students were punished. However, the court held in both cases that the schools violated the students’ rights when they were suspended for out-of-school speech on social media that caused no material and substantial disruption inside the school.

Valdosta State University (2007)

One of FIRE’s early cases is also one of our most outrageous. In 2007, Valdosta State University student and ardent environmentalist Hayden Barnes protested the planned use of $30 million in student activity fees to build a parking garage on campus by sending emails, posting flyers, and sharing his thoughts on Facebook. One image Barnes posted on Facebook was a collage critical of VSU President Ronald Zaccari, who was pressing for the parking garage’s construction. The collage read “S.A.V.E.—Zaccari Memorial Parking Garage.” Zaccari’s reaction was swift and extreme: He personally ordered Barnes be “administratively withdrawn” from campus, citing Barnes’ collage as evidence that he presented a “clear and present danger” to the VSU campus community. With FIRE’s help, Barnes secured counsel and sued — and more than eight years after his expulsion, he finally received justice in the form of a $900,000 settlement.

Texas Christian University (2015)

In 2015, despite its strong commitments to free expression, Texas Christian University suspended student Harry Vincent after his posts on Twitter and Facebook prompted other people, including non-students, to contact TCU demanding his punishment. The student had posted comments about Islam, saying it was “not a religion of peace,” and called another Twitter user an “islamic shit head.” He also described Baltimore residents as “poor uneducated druggy hoodrats.” He was suspended and banned from campus residence halls for violating TCU’s policies on “Infliction of Bodily or Emotional Harm” and “Disorderly Conduct” until FIRE intervened. After FIRE pointed out that TCU’s policies allowed the university almost total discretion to punish unpopular speech, contradicting its free speech commitments, his suspension was lifted.

Cooper Medical School of Rowan University (2017)

Cooper Medical School of Rowan University — a public university bound by the First Amendment — punished a student for appearing topless in one of her Instagram posts in 2017. The student’s photo was taken on a European beach where nudity is legal and was captioned with a comment supporting #freethenipple, a campaign directed at promoting gender equality and women’s ability to be topless in public spaces where men can be so. An administrator criticized her for that photo and others, suggested she ask her fiancé for a “second opinion” before posting on her social media, and complained that other users left sexually suggestive comments on her photos. CMSRU filed a “Professionalism Intervention Report” against the student, accusing her of violating the university’s social media policy, which banned “potentially offensive language” and photographs “condoning … sexual promiscuity.” After FIRE wrote to the university explaining that the policy infringed on constitutionally protected speech, CMSRU made improvements to its policy.

Linfield College (2017)

Young Americans for Liberty’s chapter at Linfield College invited Professor Jordan Peterson to speak at an April 2017 event, the second of Linfield’s “Speak Freely Series,” which the Associated Students of Linfield College co-hosted. Peterson tweeted about the event, “I’m violating some more safe spaces soon: Linfield College, April 24.” The next day, Vice President for Academic Affairs and Dean of Faculty Susan Agre-Kippenhan notified the campus that the event would be canceled in part because Peterson’s tweet suggested he “intend[ed] to violate the safety of our community.” FIRE wrote in, explaining that Linfield’s suggestion that Peterson’s tweet was a demonstration of violent intent, rather than hyperbolic expression referring to discussing controversial topics, was laughable. Unfortunately, Linfield chose to stand by its decision rather than its policy celebrating the “principles underlying constitutionally protected free expression.”

Wake Forest University (2019)

An anonymous Instagram account came under fire at Wake Forest University in 2019 after posting a parody of a student government campaign advertisement. The post suggested “building a wall” between Wake Forest and Winston-Salem State University, its local rival. Wake Forest President Nathan O. Hatch tweeted that while he recognized “the intent of the authors may have been a parody of a national issue,” the post was “deeply offensive and unacceptable” and thanked students who had reported it to the university’s bias reporting system. Wake Forest went on to investigate the post, earning a letter from FIRE pointing out that the investigation conflicted with the university’s clear commitments to free speech. Wake Forest, however, disagreed and bafflingly claimed that its investigation of plainly protected political satire “is not in conflict with that commitment.”

Ohio University (2019)

In response to hazing allegations, Ohio University sent a cease and desist letter to 14 student groups, warning their members not to “meet in any capacity, officially or unofficially” or “communicat[e] with and among the group via any social media platform or application.” The directive banning students from using social media to communicate represented a severe limit to students’ freedoms of association and expression in violation of OU’s obligations under the First Amendment. FIRE warned OU of the free expression issues posed by the cease and desist letters, and the university agreed to drop the measures.

Dickinson College (2020)

Dickinson College initiated an investigation to identify the anonymous operator of an Instagram account, “menofdickinson,” and asked Instagram to remove the account. Phrases in the “menofdickinson” tagline (“Empowering men since 1783” and “Made for men and woMEN”) mimicked those from the “womenofdickinson” account (“empowering women since 1783” and “made for women and feMENists”). Student newspaper The Dickinsonian described the menofdickinson’s content as “misogynistic,” explaining that it consisted of memes about sexual assault allegations, domestic violence, and women’s rights. As FIRE explained in a letter to Dickinson, investigating the account for offending students was at odds with the college’s policies committing Dickinson to respecting its students’ freedom of expression. In response, Dickinson agreed that it would not punish the student responsible for the account, but it would not agree to cease its investigation.

Fordham University (2020)

On June 3, rising Fordham senior Austin Tong posted to Instagram a photo of David Dorn, a retired St. Louis police captain killed by looters in the unrest following the killing of George Floyd. Tong added “Y’all a bunch of hypocrites,” an expression of Tong’s frustration, as a supporter of the Black Lives Matter movement, with what he referred to as “the nonchalant societal reaction over [Dorn’s] death.” The following day, on the 31st anniversary of the Tiananmen Square massacre, Tong posted a photo of himself holding a legally-obtained gun off campus, with the caption “Don’t tread on me.” Tong, who emigrated from China as a child, included an American flag emoji, a Chinese flag emoji, and #198964, a hashtag commonly used to avoid censorship of online discussion of the Tiananmen Square massacre. In response to student complaints, Tong was quickly put under investigation by Dean of Students Keith Eldredge, and was found guilty of violating university policies on “bias and/or hate crimes” and “threats/intimidation” shortly after. FIRE wrote to Fordham, explaining that the university had “acted more like the Chinese government than an American university,” but Fordham, a frequent offender against student rights, was undeterred, leading Tong to take legal action.

Faculty

East Stroudsburg University (2011)

East Stroudsburg University of Pennsylvania professor Gloria Gadsden was suspended for over a month over comments she made about her students on Facebook in February of 2011. Another Facebook user reported Gadsden for two comments she had made: “had a good day today, DIDN’T want to kill even one student :-). Now Friday was a different story[,]” and “Does anyone know where I can find a very discrete [sic] hitman? Yes, it’s been that kind of day…” Gadsden’s posts were obvious jokes about her frustrations with her work, and clearly not threats to hire a hitman to murder students. But that didn’t stop a dean at ESU from meeting with Gadsden, suggesting that her comments were threatening, placing her on leave, and requiring a “psychological evaluation” for her return. FIRE wrote to ESU calling on the university to reverse Gadsden’s suspension — a demand granted after the examination had taken place.

University of Rhode Island (2012)

After the tragic school shootings in Newtown, Connecticut, University of Rhode Island Professor Erik Loomis found himself at the center of controversy, and investigation for tweeting: “I was heartbroken in the first 20 mass murders. Now I want [National Rifle Association CEO] Wayne LaPierre’s head on a stick.” The tweet spurred death threats and demands that URI fire Loomis, who was questioned by police and called into a meeting with a URI administrator. FIRE wrote to URI President David Dooley about Loomis’ case and reminded the university of its First Amendment obligations. Fortunately, Dooley then released a statement acknowledging that “Professor Loomis’s personal remarks, however intemperate and inflammatory they may be, are protected by the First Amendment[.]”

University of Kansas (2013)

In a case similar to Loomis’ at URI, a professor’s tweet criticizing the National Rifle Association ended in punishment and bad policy at the University of Kansas. On September 16, 2013, hours after shootings at Washington, D.C.’s Navy Yard, University of Kansas Professor David Guth tweeted about the NRA, saying, “Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.” Days later, KU placed Guth on administrative leave after public pressure for his punishment, including from Kansas state legislators, and wrote that KU expects members of their community to “not make inflammatory and offensive comments.” FIRE wrote to KU explaining that Guth’s expression was protected by the First Amendment, but KU later assigned Guth to non-teaching duties after his administrative leave. That wasn’t the end of the story, though. That December, the Kansas Board of Regents enacted a constitutionally suspect policy for the state university system that authorized punishment for social media posts deemed “contrary to the best interest of the university.” That move earned the Board a spot on FIRE’s 2014 “10 Worst” list. As of this report’s publishing, the policy still appears to be in effect.

Drexel University (2016)

On Christmas Eve, then-Associate Professor George Ciccariello-Maher posted “All I Want for Christmas is White Genocide” on Twitter, intended as a mockery of a white nationalist belief that miscegenation and low fertility rates will bring about the end of white people. The tweet predictably sparked outrage, prompting Drexel to publicly proclaim its support for free expression. But privately, Drexel pursued an investigation of Ciccariello-Maher and eventually exiling him from campus, soon after which he resigned. Administrators’ sustained mistreatment of Ciccariello-Maher earned Drexel a spot on FIRE’s 2018 “10 worst” list. One interesting fact from the case: The outrage that met Ciccariello-Maher’s tweet was not wholly organic. @TEN_GOP, the “Unofficial Twitter of Tennessee Republicans,” helped make the tweet go viral. And it turns out that @TEN_GOP was actually operated by the Kremlin-linked Internet Research Agency, a Russian “troll farm.”

Rutgers University (2018)

Tenured professor of history James Livingston was found guilty of violating Rutgers University’s Policy Prohibiting Discrimination and Harassment in 2018 for two sarcastic Facebook posts he wrote about his neighborhood, Harlem. Livingston’s posts about gentrification included comments like “OK, officially, I now hate white people. I am a white people, for God’s sake, but can we keep them–us–us out of my neighborhood?,” and “I just don’t want little Caucasians overrunning my life … remand them to the suburbs, where they and their parents can colonize every restaurant.” FIRE attorneys represented Livingston in the matter. He was vindicated months later when Rutgers acknowledged its First Amendment obligations and reversed the findings against Livingston.

Wright State University (2019)

From Jan. 22 to Feb. 11, 2019, the Wright State University chapter of the American Association of University Professors engaged in a faculty strike at their university. But if you wanted to know more about it, WSU’s Facebook page would be the wrong place to look, as the university studiously censored comments on its page to amplify its own point of view about the strike. The university enforced social media guidelines stating that WSU could delete comments containing language that it deemed “propaganda,” “foul,” “trolling,” “offensive,” or “inflammatory.” FIRE wrote to WSU about the censorship and explained that these subjective restrictions on speech allow WSU to engage in unconstitutional viewpoint discrimination. Read further in this report for an in-depth discussion of universities and content moderation on social media.

Kirkwood Community College (2019)

Adjunct English professor Jeff Klinzman found himself the target of retaliation from Kirkwood Community College and threats from social media users after comments he had made on Facebook drew media attention. In reference to a tweet from President Trump about “Radical Left Wack Jobs who go around hitting” people with bats, Klinzman wrote, “Yeah, I know who I’d clock with a bat…” in an “Iowa Antifa” group. Media groups also reported on a 2012 post about evangelical Christians where Klinzman had written that he had “a desire to exact revenge.” Klinzman’s posts were protected by the First Amendment, but that didn’t stop Kirkwood from forcing him out. Represented by FIRE attorneys, Klinzman was vindicated when Kirkwood agreed to pay a $25,000 settlement to avoid a First Amendment lawsuit.

Babson College (2020)

When President Trump tweeted a threat to target 52 Iranian sites, including cultural sites, adjunct professor and staff member Asheen Phansey posted on Facebook in response: “In retaliation, Ayatollah Khomeini should tweet a list of 52 sites of beloved American cultural heritage that he would bomb. Um… Mall of America? …Kardashian residence?” The post was meant to mock Trump and satirize what might be considered “cultural heritage” in the United States. After just a day, Babson announced the end of a “thorough investigation” into Phansey’s post resulting in his firing. FIRE wrote to Babson to explain that Phansey’s speech was obviously protected by the First Amendment and Babson’s commitments to free expression, and could not reasonably be considered a “true threat” or “incitement.” But Babson dug its heels in, earning a spot on FIRE’s 2020 “10 worst” list, and even falsely implied that local and state law enforcement officials were looking into Phansey’s speech.

Catholic University of America (2020)

In May 2020, Catholic University of America investigated professor John Tieso and suspended him over his social media use, centering its investigation on three allegedly racist tweets. Though the content of all the tweets at issue is not clear, one from 2018 called former President Barack Obama “incredibly impotent and vain” and suggested that he “might consider staying in Africa and giving all his money to his people” while he was at an event in South Africa. Another potential offender may have been a post calling U.S. Sen. Kamala Harris a “former escort.” FIRE wrote to CUA about Tieso’s suspension, explaining that the university’s free speech commitments protect speech like Tieso’s. Tieso later announced that CUA fired him for the posts and that he was suing the university for abandoning its free speech promises.

Weber State University (2020)

Tenured professor Scott Senjo tweeted in May 2020 at a Wall Street Journal reporter who was hit by police officers while covering protests about George Floyd in New York City, “If I was the cop, you wouldn’t be able to tweet.” The post received over 1,500 replies before being removed by Twitter. For this and other tweets about police violence during protests, Weber State University placed Senjo on “administrative leave” one day after announcing an investigation into his “abhorrent” tweets. As FIRE’s letter explained, his extramural speech fell short of the “true threats” or “incitement” exceptions to the First Amendment, and WSU cannot punish him for it.

Email and Website Censorship

Censorship of online speech doesn’t end at social media. Though posts on Twitter and Facebook tend to reach a wider audience and inspire more demands for punishment, students and faculty have found themselves with disciplinary letters in their files or forced out of campus over what they’ve written in emails and on websites, too.

Students

University of California, Santa Barbara (2005)

The website “The Dark Side of UCSB” caused trouble for James Baron, its owner and the parent of a former University of California, Santa Barbara student, after UCSB caught wind of it. “The Dark Side of UCSB” focused on Baron’s criticisms of UCSB, like his commentary about its campus safety program. The website’s address included “UCSB,” leading the university to threaten Baron with criminal sanctions if he did not change it. UCSB also warned him he was “guilty of a misdemeanor.” After FIRE wrote to UCSB about the threats, the university dropped the matter the same day.

Saint Louis Community College (2007)

Student Jun Xiao enrolled at Saint Louis Community College at Meramec to satisfy prerequisite course requirements for medical school. He emailed his classmates twice in October 2007 to inform them that he was withdrawing from an organic chemistry class, and he encouraged them to join him in taking it instead in the following spring. STLCC responded by placing him on disciplinary probation and found him guilty of hazing, disorderly conduct, breach of the peace, and failure to comply with directions of a college official, just for those emails. FIRE wrote to STLCC in December, reminding the college of its First Amendment obligations, and the following month STLCC fully exonerated Xiao after pressure from both FIRE and the ACLU of Eastern Missouri.

Stanford University (2009)

Stanford University’s Teacher Education Program targeted student Michele Kerr’s personal blog about her educational experiences and attempted to revoke her admission after she suggested that she did not fully agree with what she perceived as the program’s “progressive” viewpoint. At STEP’s request, Kerr took down her blog although it violated no university policies. She later reposted it again, but with password protection this time, and only shared access with a few other people. An administrator learned about and demanded access to the blog, and went on to suggest that he needed to monitor it to ensure she was not sharing “confidential information.” Kerr was also threatened with “intimidation” charges for sending an e-mail to her fellow students regarding her treatment by Stanford. After FIRE intervened, STEP promised that Kerr would be treated fairly going forward, and she was able to graduate successfully.

Syracuse University College of Law (2010)

Along with Syracuse University’s judicial affairs office, Syracuse University College of Law (SUCOL) launched a months-long campaign in October 2010 against student Len Audaer for his alleged involvement in SUCOLitis, a popular anonymous blog lampooning the school. SUCOL alleged that Audaer committed “harassment” by participating in SUCOLitis, but he was not told which parts of the blog had been deemed harassing. FIRE wrote about Syracuse’s free speech commitments to SUCOL’s Dean Hannah R. Arterian, who rebuffed the letter by asserting that the investigation into Audaer was not complete yet. By December of that year, SUCOL not only still refused to specify how Audaer had committed harassment, but also went on to demand a gag order on Audaer, along with his attorney and any media outlets that received information about the case from them. After three months, SUCOL finally dropped its investigation of Audaer. The incident resulted in SUCOL finding its way onto FIRE’s 2011 “worst” list.

Clemson University (2010)

In May 2010, a Clemson administrator attempted to persuade student William Kirwan’s student organization, Central Spirit, to join a campus organization fair. Kirwan replied by email, “I’m not going to let you bully the organization into doing the things you want us to do or perceive as important” and added that he trusted previous Central Spirit presidents “over yours any day of the week and twice on Sunday.” Kirwan also joked that the administrator must have been “smoking crack.” Days later, Kirwan was charged with “Disorderly Conduct,” “Computer Misuse,” and other violations because he allegedly had “sent an email that had the effect of creating a hostile work environment.” After FIRE wrote to Clemson explaining that a public university cannot punish students for protected speech, Clemson agreed to drop the charges and affirmed that it would not violate the First Amendment.

Arizona State University (2011)

In December 2011, student Eric Haywood created a Change.org petition calling on Arizona State University to “Reduce The Costs Of Education For Arizona State University Students.” Shortly after, ASU blocked access to the entire Change.org website, citing dubious concerns about “spam” emails coming from it. FIRE wrote to ASU in February 2012 and explained that the university’s decision raised concerns that it was limiting student access to speech critical of the administration. In response to widespread criticism, ASU reversed course and unblocked Change.org.

State University of New York College at Oswego (2012)

For an assignment to write about a public figure in an advanced-level course in SUNY Oswego’s journalism department, Australian exchange student Alex Myers chose SUNY Oswego men’s hockey coach Ed Gosek. In October 2012, Myers emailed hockey coaches at rival schools asking their opinion of Gosek and added, “Be as forthcoming as you like, what you say about Mr Gosek does not have to be positive.” Cornell University’s coach replied, “[S]aying your comments don’t need to be positive is offensive.” The following evening, Myers received a hand-delivered letter from SUNY Oswego President Deborah Stanley informing him that he was placed on interim suspension and would have to vacate his dorm room. Myers was also banned from all campus facilities and warned that he may be arrested if found on campus. One of the charges against Myers was “disruptive behavior,” defined as “harassment,” “intimidation,” “threats,” “conduct which inhibits the peace or safety of members of the College community,” or “retaliation, harassment or coercion.” The charge letter added, “Specifically: Campus network resources may not be used to defame, harass, intimidate, or threaten another individual or group.” FIRE’s letter to President Stanley warned that SUNY Oswego could not reasonably allege that Myers’ speech constituted defamation, harassment, or threats. SUNY Oswego eventually abandoned Myers’ suspension, but found itself on FIRE’s 2013 “worst” list for its behavior.

Albion College (2017)

Albion College put student Alexander Tokie through a months-long investigation over an obvious joke after he sent an email to his fellow College Republicans with a number of recommendations, some in jest, on debating “white privilege.” Jokingly, Tokie concluded his email by suggesting: “Take the liberal tears from the idiot you just destroyed in your debate, dissemble your American made Springfield M1911 .45 caliber handgun and apply the tears in order to clean the mechanism, reassemble and proceed to purchase ANTIFA and ISIS hunting permits and max out on tags[.]” In November 2017, two months after it was sent, Vice President for Student Affairs and Dean of Students Sally Walker and Vice President of Finance and Administration Jerry White informed Tokie that he was charged with violating Albion’s policy against the “[u]se of, or threatened use of, physical force or violence.” FIRE’s letter to Albion explained that its investigation of Tokie violated the college’s free speech commitments, and suggested the college look into whether hunting permits can be purchased for ISIS or Antifa in the state of Michigan if the hyperbolic nature of Tokie’s speech was not immediately clear to them. Like a number of other offenders in this report, Albion’s misdeeds earned it a spot on FIRE’s 2018 “worst” list.

University of North Carolina at Chapel Hill (2018)

UNC Chapel Hill was one of many universities facing questions from students about the relationship between their campuses and race in recent years. Central to the protests at UNC Chapel Hill was Silent Sam, a Confederate monument on the campus. In December 2018, student Annie Simpson created parody website “UNC Anti-Racist Jeopardy” using web.unc.edu, a university-provided publishing service that allows UNC students and faculty to publish their own websites. Simpson created the site as part of her artistic portfolio. Shortly after, the chair of the art department asked Simpson to voluntarily take down the site, a request Simpson denied. Two days later, the site was taken down and Simpson was informed that it violated web.unc.edu’s Terms and Conditions because it was a “personal project.” An investigation by FIRE found that UNC Chapel Hill had allowed numerous other sites that were clearly “personal” in nature to remain while targeting Simpson’s. FIRE wrote to UNC Chapel Hill about the takedown, noting that the university had established a designated public forum through web.unc.edu and could not remove student-created sites on the basis of their viewpoint. After FIRE’s letter, the university restored the site.

Faculty

Glendale Community College (2007)

In March 2007, Professor Walter Kehowski was placed on forced administrative leave and faced possible termination after emailing George Washington’s Thanksgiving address to the Maricopa County Community College District community the prior November. Kehowski taught at Glendale Community College, a college in the MCCCD system. Kehowski found the address on pundit Pat Buchanan’s website and linked to the site, which also included Buchanan’s views on immigration and other topics, prompting some employees to file complaints. Kehowski was charged with violating the district’s Equal Employment Opportunity policy and policies prohibiting unsolicited, non–work-related emails, even though other MCCCD employees frequently used the “announcements” listserv to send similarly opinionated and non–work-related emails. FIRE wrote to MCCCD to address the college’s punishment of Kehowski and explain that it could not apply a double standard to Kehowski’s emails. That June, MCCCD and Kehowski reached a settlement allowing Kehowski to return to teaching and withdrawing MCCCD’s charges against him, but restricting his email use going forward. In 2010, the United States Court of Appeals for the Ninth Circuit delivered a victory for the First Amendment when it determined that Kehowski’s emails — however offensive they may be to some of his readers — constituted protected speech and not actionable workplace harassment.

University of Oklahoma (2008)

FIRE knows that universities regularly censor political speech, especially in election seasons. So the University of Oklahoma’s September 2008 prohibition on “the forwarding of political humor/commentary” over email by students and faculty was unsurprising, but unconstitutional nevertheless. OU fell victim to the common misconception that student or faculty political speech “places the University at risk of losing its tax exempt status.” After FIRE explained that the ban violated the rights of the OU community, President David L. Boren clarified that OU would not limit First Amendment-protected political speech.

University of California, Santa Barbara (2009)

In 2009, University of California, Santa Barbara Professor William Robinson was put under a months-long investigation after students complained about an email he sent suggesting “Nazi atrocities against the Jews” are comparable to “Israeli atrocities against the Palestinians.” Robinson was told he may have violated the Faculty Code of Conduct and that, as a result of his email, “two enrolled students were too distraught to continue with the course.” FIRE wrote to UCSB Chancellor Henry Yang about the case, calling it “a serious threat to the rights of every faculty member at UCSB.” Months after initiating the investigation, UCSB finally concluded in June 2009 that it “did not find probable cause to undertake disciplinary action” against Robinson.

Marquette University (2014)

In a case that ultimately went to the Wisconsin Supreme Court and lasted years, Marquette University, a private, Jesuit institution, first began its campaign against Professor John McAdams in 2014. McAdams ran a personal blog, Marquette Warrior, and wrote about a recorded interaction in which a graduate student philosophy instructor told a student that his personal views against gay marriage “are not appropriate.” Marquette suspended John McAdams in December 2014 and then announced its intention to revoke his tenure and terminate him from the Marquette faculty the following month. In 2016, McAdams announced that he was suing Marquette with the help of the Wisconsin Institute for Law & Liberty, alleging violations of the academic freedom commitments made to faculty. In a victory for academic freedom, the Wisconsin Supreme Court ruled in 2018 that Marquette University wrongly fired McAdams. FIRE had filed a “friend of the court” brief the previous year urging the court to hear McAdams’ case and reach this conclusion.

Bergen Community College (2014)

Years ago, the most controversial thing about Game of Thrones was not its final season. For one professor, it was a picture he posted to social media service Google+ of his daughter wearing a T-shirt featuring a quote from the popular TV series. In January 2014, administrators at New Jersey’s Bergen Community College placed Professor Francis Schmidt on leave, requiring him to meet with a psychiatrist before returning to campus, over a photo of his daughter doing yoga while wearing a T-shirt that said, “I will take what is mine with fire & blood.” Administrators called it a “threatening email,” although Schmidt never actually emailed the photo to anyone; Google+ automatically emailed contacts when their associates uploaded new posts. In response to criticism, BCC doubled down on its behavior and referenced the number of school shootings that had taken place that year, saying it must investigate all security concerns. FIRE connected Schmidt with FIRE Legal Network members Derek Shaffer, a partner at the law firm Quinn Emanuel Urquhart & Sullivan, and Gabriel Soledad, an associate at the firm. With their assistance, Schmidt was vindicated, and BCC affirmed that it “may have lacked basis” in punishing Schmidt over an image of his daughter in a Game of Thrones shirt.

Oakton Community College (2015)

On May 1, 2015, faculty member Chester Kulis sent the following email to his Oakton Community College colleagues: “Have a happy MAY DAY when workers across the world celebrate their struggle for union rights and remember the Haymarket riot in Chicago.” Kulis’ email, titled “May Day – The Antidote to the Peg Lee Gala,” was written in response to OCC’s celebration of college president Margaret B. Lee’s retirement. Days later, Philip H. Gerner III, an attorney representing OCC, warned Kulis that his “reference to ‘remember the Haymarket riot’ was clearly threatening the President that [he] could resort to violence against the President and the College campus.” He also told Kulis to “immediately cease and desist any communications which expressly or impliedly advocate violence against Oakton College, its employees, or the College community” and threatened potential legal action, including referral to law enforcement. FIRE’s letter to OCC explained that “Kulis’s email invoking a historical event in the context of his ongoing labor activism cannot by any reasonable reading be considered threatening or intimidating in this regard.” In a response to FIRE, another attorney for OCC maintained that the college believed Kulis’ email constituted a true threat.

University of California, Los Angeles (2020)

On June 2, 2020, a student emailed University of California, Los Angeles business school lecturer Gordon Klein to suggest he adjust his final exam requirements for black students due to the unrest surrounding the murder of George Floyd. Klein thanked the student over email and called Floyd’s death a “tragedy,” but declined to change the final exam procedures. Klein posed a series of questions to the student — for example, “Do you know the names of the classmates that are black? How can I identify them since we’ve been having online classes only?” — to suggest that he did not think such an endeavor would be feasible. That same day, a Change.org petition calling on UCLA to fire Klein went viral on Twitter and accrued thousands of signatures. UCLA put Klein on leave effective June 3, apparently due to the tone of his email. In an email to the UCLA community the next day, dean of the Anderson School of Management Antonio Bernardo referred to Klein’s email as an “abuse of power.” FIRE’s response warned UCLA that its treatment of Klein, including the apparent investigation of his email over its tone, threatened the university’s obligations under the First Amendment as a public institution.

Censorship in Practice and Policy

Internet speech — which may be targeted and amplified far beyond the immediate campus community — is a frequent basis for punishment of students and faculty. But what about the policies that govern internet speech? While the state of campus speech codes continues to improve overall, there are still a number of restrictive policies on the books that affect how freely campus communities can speak online. Universities regularly ban “obscene or abusive messages,” “unwarranted annoyance,” and “demeaning,” “degrading,” “vulgar,” “insulting,” or “denigrating” material.The policy excerpts below, from both public and private universities, violate free speech or First Amendment principles by targeting social media or other online content. All of the policies excerpted below are considered “red light” policies by FIRE, meaning that they clearly and substantially restrict freedom of speech. A total of 35 of the 473 institutions rated by FIRE currently maintain red light IT policies. For more information about speech codes and FIRE’s rating system, see the “Using FIRE’s Spotlight Database” guide.

Macalester College’s Student Handbook: Campus Policies and Protocols: Social Networking/Social Media

Macalester College, though a private college and thus not bound by the First Amendment, nevertheless makes strong commitments to “[f]ree inquiry” and “free expression.” However, Macalester maintains a vague and overbroad social networking policy that contradicts its commitments. Macalester’s policy warns, in part, that “students should refrain from posting material that is deemed to be criminal; harassing; racially, sexually, ethnically or religiously objectionable; defamatory; obscene; invasive of another[’s] privacy; or infringing of copyright.”

Boston College’s Policies and Procedures Manual: Use of University Technological and Information Resources

Another private college, Boston College recognizes “freedom of inquiry as indispensable for attaining truth.” Its IT policy suggests there are limits to that freedom, though, by banning “obscene or intolerant language” and warning students that their online communications “are to reflect mutual respect, civility, and other moral standards.” And in case you thought those terms were vague, the policy states “[t]he determination of what is obscene, offensive, or intolerant” is in “the sole discretion of the University.”

College of the Holy Cross’ Use of Information Technology Services

Like Boston College, the College of the Holy Cross employs similar language about “civility” in its Information Technology Services policy, which states: “Communications from members of the College community are to reflect mutual respect and civility. Obscene or intolerant language, as well as offensive images, clearly violate these standards and are considered inappropriate[.]” And, again similar to Boston College, Holy Cross warns that “[t]he determination of what is obscene, offensive or intolerant is within the sole discretion of the College.” These restrictions are impossible to square with another policy from Holy Cross recognizing the “right to express opinion.”

Cheyney University of Pennsylvania’s Policy FA – 2010-4030: Policy on Acceptable Usage of Technology

Cheyney University of Pennsylvania is a public university bound by the First Amendment and required to uphold free speech. However, Cheyney maintains an impermissibly overbroad and vague policy governing “both on-campus and off-campus, all electronic media.” The policy states: “No person shall harass others by sending annoying, threatening, libelous, sexually, racially, or religiously offensive messages. This includes all materials deemed offensive by the existing university [code] of conduct laws.” While Cheyney can encourage students not to share “annoying” or “religiously offensive messages,” it cannot ban them from doing so, as much speech deemed subjectly annoying or offensive is constitutionally protected expression.

Tulane University’s Acceptable Use Policy

Tulane University’s Acceptable Use policy goes farther than many other private universities’ similar policies governing internet speech; it requires that students agree to be “kind” online. The policy states: “You agree to communicate only in ways that are kind and respectful. You agree to not intentionally access, transmit, copy, or create material that violates applicable laws or the University’s code of conduct (such as messages that are pornographic, threatening, rude, discriminatory, or meant to harass).” Such a restriction is ripe for administrative abuse and conflicts with the university’s written promise that “Tulane is committed to an environment in which a variety of ideas can be freely expressed.”

Massachusetts College of Art and Design’s Technology Acceptable Use Policy

Though Massachusetts College of Art and Design is a public university bound by the First Amendment, you wouldn’t know that from its Technology Acceptable Use Policy. It employs a number of bans on constitutionally protected speech, including on “unwarranted annoyance,” “offensive” and “derogatory” messages, and “communications which contain sexual implications.” It would be easy to unintentionally violate these bans at any college, let alone an art school.

Kean University’s Computer Related Acceptable Use Guidelines

Kean University, a public institution in New Jersey, currently maintains a troubling internet use policy that raises First Amendment concerns. Its Computer Related Acceptable Use Guidelines ban speech that “is abusive, profane or sexually offensive to the average person,” and prohibits students from“sending annoying, threatening, libelous, or sexually, racially, or religiously offensive messages.” As demonstrated by several other policies in this section, this ban outlaws broad swathes of speech that is protected under the First Amendment.

Carleton College’s Information Technology Services: Academic User Agreement

Carleton College policy states, “The President and the Dean consider the protection of the right of individuals to express their views freely and without risk of repercussions to be among our most important responsibilities.” The right to express views on the internet, though? Not so clear. Carleton’s IT policy bans “distributing material which is demeaning or discriminatory via any electronic mail, bulletin board or other computer network facility.”

Drexel University’s Policy IT-7: Email Policy

Considering Drexel’s mistreatment of Professor George Ciccariello-Maher over his social media use in spite of its free speech commitments, it is no surprise that Drexel maintains a restrictive policy on email use that violates its speech promises. The policy states that “[u]se of offensive language” constitutes “unacceptable behavior.” The penalties for unacceptable email use “range from de-activation of the account (for minor first offenses) through university judicial action or referral to law enforcement authorities.”

University of Alabama at Birmingham’s UAB Information Technology: IT Guidelines: Policy Violations

The IT guidelines for the University of Alabama at Birmingham, a public university, include a provision warning against “[c]reating, displaying, or transmitting threatening, racist, sexist, or harassing language and/or materials.”

This list represents just a small sample of the policies that infringe upon student speech at campuses across the United States. Does your school maintain policies that unconstitutionally or illiberally limit your ability to speak online? Contact us at speechcodes@thefire.org.

Revisiting “No Comment: Public Universities’ Social Media Use and the First Amendment”

Earlier this year, FIRE released a report detailing its survey of over 200 universities and colleges and the tools they use to filter or block content and users on their official Facebook and Twitter accounts. “No Comment: Public Universities’ Social Media Use and the First Amendment” revealed that there is widespread use of these filtering tools among public institutions, likely in violation of the First Amendment.

The First Amendment and social media

You might be asking: How does the First Amendment come into play on social media? Courts have started to answer that question. Because public colleges and universities are government actors, they generally cannot censor user comments in government-run online spaces because they disagree with the viewpoint expressed. Online expression is important: As the Supreme Court of the United States recently observed, “in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views,” but the answer today is “clear”: “It is cyberspace . . . and social media in particular.”

Courts across the country have held government actors’ behavior on social media sites to be subject to First Amendment limitations. So far, the most noteworthy of these decisions was the successful (although ongoing) challenge to President Trump’s practice of blocking critics on his Twitter account. It is important to note that these rulings do not impose legal obligations on the companies that operate social media sites, only on government actors’ use of social media tools. For a more comprehensive discussion of the relationship between the First Amendment and social media, read the full report.

Report findings

Facebook offers page owners — in this case, universities — four tools to limit user content:

The profanity filter, which automatically hides visitors’ posts if they contain words on one of two lists — one for the “medium” setting and one for the “strong” setting. The words on the list are not publicly available but are “the most commonly reported words and phrases marked offensive” by Facebook users. This filter is turned off by default.
The customized blacklist allows an administrator to establish a custom list of banned words. Like the previous filter, this one automatically hides content that contains a phrase on the list.
The blocking function, which allows page administrators to ban particular accounts.
Manual removal, which allows an administrator to manually hide specific posts or comments.

In FIRE’s survey, half of the surveyed institutions voluntarily use Facebook’s “strong” profanity filter, and over a quarter — 55, or 27.8% — use the “medium” filter. This means that 77.8% of surveyed institutions choose to employ a blacklist of prohibited words that are not available to the public. And nearly a third of the universities surveyed (59, or 30.3%) use a custom blacklist, collectively blocking 1,825 unique words and phrases. The blocklists include common profanities as well as words relating to matters of local and national concern, like animal rights activists’ criticism of food vendors, conversations about campus Confederate monuments, and commentary about campus preachers, controversial faculty, politicians, and sports teams. A closer look at these custom blocklists reveals how universities control debate on their pages about local and campus issues:

The University of Arizona automatically removes posts that include the word “rape” or the name of a controversial itinerant preacher known for holding signs reading “You Deserve Rape.”
The University of Oklahoma blocks the middle finger emoji.
Mississippi State University blocks “fail state,” a play on its “Hail State” motto.
During the “Silent Sam” protests, the University of North Carolina at Chapel Hill blocked posts with the phrase “Silent Sam,” as well as mentions of “Nazis.” The university also blocked mentions of the terms “9/11,” “terrorist,” “terrorism,” and the name of a professor whose teaching about the September 11, 2001, terrorist attacks drew national media coverage. The university also barred terms relating to sexual assault.
The University of Kentucky blocks the words “birds,” “chicken,” “chickens,” and “filthy.” UK told FIRE that it instituted this restriction “around the time that Aramark came on campus” and activists began posting “highly graphic videos of chicken slaughter.” The university announced its 15-year contract worth $250 million with Aramark in 2014.
Mississippi State University also blocks mentions of “Aramark” and terms related to it.
Texas A&M University blocks terms related to criticism from animal rights activists, including People for Ethical Treatment of Animals, over research conducted on dogs. The terms include “peta,” “abuse,” “abusers,” and “lab.” PETA and the Electronic Frontier Foundation sued Texas A&M in 2018 over the university’s censorship. After Texas A&M settled the case and agreed to cease using the filters, PETA and the EFF sued the university again, alleging that it had switched to manually removing critical comments.
Similarly, Santa Monica College bars “cats,” “dissecting,” “torture,” and “killing” following a PETA campaign about cat dissection in an anatomy course.

Universities are not just blocking phrases, however — they block users too. FIRE found that of the 198 public colleges and universities that responded to FIRE’s survey, 173 (or 87%) blocked users on Facebook or Twitter. Together, these institutions blocked 13,197 Facebook users and 4,065 Twitter users from interacting with their posts, pages, or tweets. Accordingly, an institution that blocks at least one user blocks an average of 76 Facebook users and 23.5 Twitter users.

Next steps for universities and social media platforms

Government actors and social media companies can work together to protect fundamental civil liberties. For administrators and staff at public universities and colleges — as well as at private institutions that commit to freedom of expression — there are a variety of ways to reduce the risk of censorship. For example:

Don’t filter. Turn off Facebook’s automatic filters.
Don’t block users. Don’t block users based on their viewpoint.
Craft clear, publicly available policies. Be clear about the purpose of your social media pages. Is your page open for comments only from students or faculty, or is it open to the public? If you place limits on the content of speech, make sure they’re published, reasonable, narrow, and objective.
Consistently enforce policies once in place. A failure to enforce policies consistently may lead to First Amendment liability even if the policy itself is clear, objective, and reasonable. Selective enforcement will lead to the appearance of bias, and may demonstrate unlawful viewpoint discrimination.
Train staff on First Amendment principles. Make sure your staff members tasked with operating social media pages know what they can and can’t do.
Keep records. If you block a user for posting the same comment repeatedly, or for using unprotected speech, keep a record of it.

Social media companies can play a part, too:

Distinguish between government and non-government accounts. If a user identifies themselves as a government actor, make that information public, and require government officials to designate themselves as such in order to operate verified pages.
Require government actors to establish public-facing policies. Restrict government actors’ moderation tools unless they have published a policy concerning user content.
Keep filters “off” by default.
Alert users when their comment has been filtered on a government actor’s page. If a user does not know that their speech has been hidden, they cannot remedy that censorship.
Make public the words contained on the profanity filters. Government actors should not be able to make use of a list of forbidden words hidden from the public.
Provide tools and reminders for government accounts. If an account is designated as belonging to a government actor, provide warnings alongside filtering tools that their use may have ramifications under the First Amendment. If a government actor blocks a user, require them to set forth their reason for doing so.

Are you looking to learn how your institution moderates content on social media? FIRE offers a helpful explainer on conducting a records request at your university.

Internet Speech at Home and Abroad

The relationship between higher education and the internet is complex and extends beyond U.S. universities and their students and faculty. The global nature of higher education means that sometimes speech that takes place in the United States has effects far beyond it, and international students face unique consequences for internet speech. In 2019, for example, an international student at the University of Minnesota was arrested in his hometown of Wuhan, China and sentenced to six months in prison after months of detention. His crime? Posting criticism of President Xi Jinping on Twitter while studying in the United States. His arrest was an unfortunate reminder that students’ internet speech can have an impact far beyond the U.S. borders.

Earlier this year, FIRE warned that travel and safety limitations caused by the COVID-19 pandemic could have a serious impact on academic freedom, as faculty would be forced to teach online classes, in part to international students residing in countries, like China, that severely censor and punish internet speech. In an amicus curiae brief filed in the July 2020 lawsuit brought by Harvard University and the Massachusetts Institute of Technology against the U.S. Immigration and Customs Enforcement policy requiring international students to leave the country if their classes are held entirely online this fall, FIRE explained that this policy would harm all members of the academic community. While ICE’s broad policy was quickly rescinded, incoming international freshmen were still impacted, leaving similar threats in place — namely, that faculty would face pressure to self-censor to ensure students outside of the country could stay in class and international students would feel that they must stay silent to avoid legal trouble.

Another development aggravated concerns about online teaching: the June imposition of Hong Kong’s National Security Law, which promises severe penalties for violations of its vague bans on “separatism and subversion” and applies to non-residents. Responding to fears that students could face legal repercussions for taking part in online classes about China or Hong Kong, faculty at a number of U.S. universities instituted measures intended to protect them. At institutions like Princeton University, Harvard Business School, Amherst College, the University of Pennsylvania, and Yale University, faculty shared that they would not remove controversial class material that might violate the National Security Law, and would instead utilize syllabus warnings, blind grading, anonymity, and other measures. In light of these developments and the importance of preserving U.S. campuses as a place where political discussions can continue freely, FIRE released a resource that tracks universities’ responses to these speech restrictions overseas.

Conclusion

As discussed in Memory-holed: Universities and Internet Speech, it is clear that members of the academic community could face censorship or repercussions for what they say online, whether from overzealous administrators, repressive university policies, automated blocklists, or authoritarian governments — but there are ways to fight back. If you’re a faculty member in trouble for a tweet, an international student looking to learn about your right to speak as a student in the U.S., a student journalist looking to investigate your university’s relationship with internet censorship, or an administrator looking to protect free expression, contact FIRE. We may be able to help.