CENSORSHIP

Robert Johnson (johnsorl@COLORADO.EDU)
Tue, 7 Feb 1995 19:13:40 -0700

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---------- Forwarded message ----------
Date: 6 Feb 1995 12:38:11 -0500
From: Carl M. Kadie <kadie@eff.org>
To: comp-academic-freedom-talk mailing list
<comp-academic-freedom-talk@eff.org>
Subject: Re: UCSD Chancellor bans 'disparaging' email

>From an email correspondent ...

>>
>> UCSD
>> CAMPUS NOTICE
>> University Of California, San Diego

>> The use of University
>> resources such as electronic mail to disparage individuals or goups on
>> the basis of gender, race, sex, sexual orientation, age, disability,
>> or religion is strictly prohibited and violates University policy.

[...]

=============== ftp://ftp.eff.org/pub/CAF/faq/censorship-and-harassment ===============
q: Must/should universities ban material that some find offensive
(from Netnews facilities, email, libraries, and student publications,
etc) in order to comply with antiharassment laws?

a: No. U.S. federal courts have said that harassing speech is
different from offensive speech. While face-to-face harassment can be
prohibited, mere offensive speech is protected by the principles of
academic freedom and, at state universities, by the Constitution.

The courts have also said that that it is unconstitutional at state
universities to base campus speech restrictions on EEOC rules. Here is
part of a decision:

==============Excerpt uwm-post-v-u-of-wisconsin ==========

(3) PARALLEL TO TITLE VII LAW
The Board of Regents argues that this Court should find the UW Rule
constitutional because its prohibition of discriminatory speech which creates a
hostile environment has parallels in the employment setting. The Board notes
that, under Title VII, an employer has a duty to take appropriate corrective
action when it learns of pervasive illegal harassment. See Meritor Savings
Bank v. Vinson, 477 U.S. 57, 72 (1986).
The Board correctly states Title VII law. However, its argument regarding
Title VII law has at least three difficulties. First, Title VII addresses
employment, not educational, settings. Second, even if Title VII governed
educational settings, the Meritor holding would not apply to this case. The
Meritor Court held that courts should look to agency principles when
determining whether an employer is to be held liable for its employee's
actions. See id. Since employees may act as their employer's agents, agency
law may hold an employer liable for its employees actions. In contrast, agency
theory would generally not hold a school liable for its students' actions since
students normally are not agents of the school. Finally, even if the legal
duties set forth in Meritor applied to this case, they would not make the UW
Rule constitutional. Since Title VII is only a statute, it cannot supersede
the requirements of the First Amendment.
============================

The intellectual freedom principles developed by libraries offer some
guidance. The American Library Association statement on Challenged
Materials says: "Freedom of expression is protected by the
Constitution of the United States, but constitutionally protected
expression is often separated from unprotected expression only by a
dim and uncertain line. The Constitution requires a procedure
designed to focus searchingly on challenged expression before it can
be suppressed. An adversary hearing is a part of this procedure."

Private institutions are legally free to violate the standards set by
the Constitution and academic freedom. They should not, however, try
to justify their violations with appeals to government rules.

- Carl

ANNOTATED REFERENCES

(All these documents are available on-line. Access information follows.)

=================<a href="ftp://ftp.eff.org/pub/CAF/academic/speech-codes.aaup">
academic/speech-codes.aaup
=================</a>
* Speech Codes (AAUP)

On Freedom of Expression and Campus Speech Codes Expression - An
official statement of the American Association of University
Professors (AAUP)

It says in part: "On a campus that is free and open, no idea can be
banned or forbidden. No viewpoint or message may be deemed so hateful
or disturbing that it may not be expressed."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/uwm-post-v-u-of-wisconsin">
law/uwm-post-v-u-of-wisconsin
=================</a>
* Expression -- Hate Speech -- UWM Post v. U Of Wisconsin

The full text of UWM POST v. U. of Wisconsin. This recent district
court ruling goes into detail about the difference between protected
offensive expression and illegal harassment. It even mentions email.

It concludes: "The founding fathers of this nation produced a
remarkable document in the Constitution but it was ratified only with
the promise of the Bill of Rights. The First Amendment is central to
our concept of freedom. The God-given "unalienable rights" that the
infant nation rallied to in the Declaration of Independence can be
preserved only if their application is rigorously analyzed.

The problems of bigotry and discrimination sought to be addressed here
are real and truly corrosive of the educational environment. But
freedom of speech is almost absolute in our land and the only
restriction the fighting words doctrine can abide is that based on the
fear of violent reaction. Content-based prohibitions such as that in
the UW Rule, however well intended, simply cannot survive the
screening which our Constitution demands."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/doe-v-u-of-michigan">
law/doe-v-u-of-michigan
=================</a>
* Expression -- Hate Speech -- Doe v. U of Michigan

This is Doe v. University of Michigan. In this widely referenced
decision, the district judge down struck the University's rules
against discriminatory harassment because the rules were found to be too
broad and too vague.

=================<a href="ftp://ftp.eff.org/pub/CAF/law/broadrick-v-oklahoma">
law/broadrick-v-oklahoma
=================</a>
* Expression -- Vague Regulation -- Broadrick v. Oklahoma, et al.

Summary of case law on overly vague regulation of expression. It says
a statute is unconstitutionally vague when "men of common intelligence
must necessarily guess at its meaning."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/naacp-v-button">
law/naacp-v-button
=================</a>
* Expression -- Overbroad Regulation -- NAACP v. Button, et al.

Summary of case law on overly broad regulation of expression. It says
"[b]ecause First Amendment freedoms need breathing space to survive,
government may regulate in the area only with narrow specificity."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/pd-of-chicago-v-mosley">
law/pd-of-chicago-v-mosley
=================</a>
* Expression -- Content Regulation -- Police Department of Chicago v. Mosley

Summary of case law on content-based regulation of expression. It says
that "above all else, the First Amendment means that government has no
power to restrict expression because of its message, its ideas, its
subject matter, or its content."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/rav-v-st-paul.1">
law/rav-v-st-paul.1
=================</a>
* Expression -- Hate Speech -- RAV v. St Paul -- 1

The Supreme Court's _R.A.V. v. City of St. Paul_ decision about hate crimes.

The Court overturned St. Paul's Bias-Motivated Crime Ordinance, which
prohibits the display of a symbol which one knows or has reason to
know "arouses anger, alarm or resentment in others on the basis of
race, color, creed, religion or gender."

By 9-0, the Court said the law as overly broad. By 5-4, the Court said
that the law was also unfairly selective because it only tried to protect
some groups.

Included: summary, majority opinion, 3 concurring opinions.

=================<a href="ftp://ftp.eff.org/pub/CAF/law/young-conservatives-v-sau">
law/young-conservatives-v-sau
=================</a>
* Expression -- Offensive -- Young Conservatives v. SAU

A UPI story that tells how Stephen F. Austin University originally
banned a group's "sexist" flyers, but when challenged, the ban was
lifted and a cash settlement was given to the students whose
free-speech was violated by the ban.

=================<a href="ftp://ftp.eff.org/pub/CAF/law/cohen-v-california.1">
law/cohen-v-california.1
=================</a>
* Expression -- Offensive -- Cohen v. California -- 1

Definition of "fighting words"; why no right not to be offended

The definition of fighting words from _Chaplinsky v. New Hampshire_
and then _Cohen v. California_. Also, says quotes the Supreme Court
saying that there is no universal right to not hear offensive
expression.

=================<a href="ftp://ftp.eff.org/pub/CAF/law/cohen-v-california.2">
law/cohen-v-california.2
=================</a>
* Expression -- Offensive -- Cohen v. California -- 2

Netnews article with reference _Cohen v. California_, "in which the
court ruled that Cohen's jacket, which stated "Fuck the Draft" was a
protected form of free speech, even though he wore it in a county
courthouse."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/cohen-v-california.3">
law/cohen-v-california.3
=================</a>
* Expression -- Offensive -- Cohen v. California -- 3

Here are excerpts from several Supreme Court decisions inclusing
_Cohen v. Calfiornia_. They say that offensive public expression is
protected if those offended can "effectively avoid further bombardment
of their sensibilities simply by averting their eyes."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/cohen-v-california.4">
law/cohen-v-california.4
=================</a>
* Expression -- Regulation of Tone -- Cohen v. California -- 4

A short quote from _Cohen v. California_: "We cannot sanction the view
that the constitution, while solicitous of the cognitive content of
individual speech, has little or no regard for that emotive function
which, practically speaking, may often be the more important element
of the overall message sought to be communicated."

=================<a href="ftp://ftp.eff.org/pub/CAF/law/quiet-reading">
law/quiet-reading
=================</a>
* Expression -- Harassment -- Quiet Reading of _Playboy_

Excerpts from a newspaper report that a federal district judge has
said that "quiet reading" of a _Playboy_ magazine by a firefighter
does not create a sexually harassing atmosphere. [Editorial comment: I
think this supports the idea that rather banning "porn" from a general
academic computer, it is more appropriate to ban harassment.]

=================<a href="ftp://ftp.eff.org/pub/CAF/library/challenged-materials.ala">
library/challenged-materials.ala
=================</a>
* Challenged Materials (ALA)

An interpretation by the American Library Association of the "Library
Bill of Rights". It says in part "The Constitution requires a
procedure designed to focus searchingly on challenged expression
before it can be suppressed. An adversary hearing is a part of this
procedure."

=================<a href="http://www.eff.org/CAF/faq/netnews.liability.html">
faq/netnews.liability
=================</a>
* Netnews -- On University Liability for Netnews

q: Does a University reduce its likely liability by screening Netnews
for offensive articles and newsgroups?

a: Not necessarily. By screening articles and newsgroups the
...

=================<a href="http://www.eff.org/CAF/faq/netnews.reading.html">
faq/netnews.reading
=================</a>
* Netnews -- Policies on What Users Read

q: Should my university remove (or restrict) Netnews newsgroups
because some people find them offensive? If it doesn't have the
resources to carry all newsgroups, how should newsgroups be selected?

a: Material should not be restricted just because it is offensive to
...

=================<a href="http://www.eff.org/CAF/faq/computer-porn.html">
faq/computer-porn
=================</a>
* Banning "porn" from university computers

q: Should universities create a rule banning "porn" on university
computers?

a: In my opinion, no. Such a rule would be unnecessary and too broad.
...

q: Should universities create a rule banning "porn" on university
computers?

a: In my opinion, no. Such a rule would be unnecessary and too broad.
...

=================<a href="ftp://ftp.eff.org/pub/CAF/filters.email">
filters.email
=================</a>
* How Unix users can filter out harassing email by themselves

=================
=================

If you have gopher, you can browse the CAF archive with the command
gopher gopher.eff.org

These document(s) are also available by anonymous ftp (the preferred
method) and by email. To get the file(s) via ftp, do an anonymous ftp
to ftp.eff.org (192.77.172.4), and then:

cd /pub/CAF/academic
get speech-codes.aaup
cd /pub/CAF/law
get uwm-post-v-u-of-wisconsin
cd /pub/CAF/law
get doe-v-u-of-michigan
cd /pub/CAF/law
get broadrick-v-oklahoma
cd /pub/CAF/law
get naacp-v-button
cd /pub/CAF/law
get pd-of-chicago-v-mosley
cd /pub/CAF/law
get rav-v-st-paul.1
cd /pub/CAF/law
get young-conservatives-v-sau
cd /pub/CAF/law
get cohen-v-california.1
cd /pub/CAF/law
get cohen-v-california.2
cd /pub/CAF/law
get cohen-v-california.3
cd /pub/CAF/law
get cohen-v-california.4
cd /pub/CAF/law
get quiet-reading
cd /pub/CAF/library
get challenged-materials.ala
cd /pub/CAF/faq
get netnews.liability
cd /pub/CAF/faq
get netnews.reading
cd /pub/CAF/faq
get computer-porn
cd /pub/CAF
get filters.email

To get the file(s) by email, send email to ftpmail@decwrl.dec.com
Include the line(s):

connect ftp.eff.org
cd /pub/CAF/academic
get speech-codes.aaup
cd /pub/CAF/law
get uwm-post-v-u-of-wisconsin
cd /pub/CAF/law
get doe-v-u-of-michigan
cd /pub/CAF/law
get broadrick-v-oklahoma
cd /pub/CAF/law
get naacp-v-button
cd /pub/CAF/law
get pd-of-chicago-v-mosley
cd /pub/CAF/law
get rav-v-st-paul.1
cd /pub/CAF/law
get young-conservatives-v-sau
cd /pub/CAF/law
get cohen-v-california.1
cd /pub/CAF/law
get cohen-v-california.2
cd /pub/CAF/law
get cohen-v-california.3
cd /pub/CAF/law
get cohen-v-california.4
cd /pub/CAF/law
get quiet-reading
cd /pub/CAF/library
get challenged-materials.ala
cd /pub/CAF/faq
get netnews.liability
cd /pub/CAF/faq
get netnews.reading
cd /pub/CAF/faq
get computer-porn
cd /pub/CAF
get filters.email

--

Carl Kadie -- I do not represent EFF or my employer; this is just me.

 =Email: kadie@eff.org, kadie@cs.uiuc.edu =

 =URL: <http://www.eff.org/CAF/>, <ftp://ftp.cs.uiuc.edu/pub/kadie/> =

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