Latest Revision: March 2004

Academic Freedom vs. Civil Rights

A Special Report of the

Center for First Amendment Studies

California State University, Long Beach

Prepared by

Craig R. Smith, Director

Research, publication and distribution of this study was made possible by a generous grant

from the New York Times Company Foundation

Academic Freedom: Where It Stands in the Courts

"The most serious problems of freedom of expression in our society today exist on our campuses. . . . The assumption seems to be that the purpose of education is to induce correct opinion rather than to search for wisdom and to liberate the mind." ⁽¹⁾

Academic freedom protects the right to develop and explore ideas in an arena free from political, cultural, or organizational intimidation. Socrates recognized the need for protection from authorities and narrow-minded colleagues. ⁽²⁾ He knew that the object of a university is to promote learning and creativity; obtaining that goal requires an open and supportive environment.

Historically, Americans have regarded open intellectual discourse as an essential element in the preservation of the free marketplace of ideas. It is no different in the academic community. In fact, First Amendment precedents protect individual scholars and students from their own academic institutions. ⁽³⁾ These precedents have generally recognized the special nature of the academic community where faculty members operate as partners and colleagues to instill knowledge in students. ⁽⁴⁾ Perhaps no where else on earth are the purposes of free speech pursued with more vigor than on our campuses: we hope to embody John Stuart Mill's free marketplace of ideas so that truth can be pursued; we hope to promote Thomas Emerson's goal of providing a place where individuals can express themselves creatively; we hope to propagate Alexander Meickeljohn's notion that free speech is essential to self government.

However, academic freedom is not unlimited. The Supreme Court has consistently protected citizens of the republic from "fighting words", uninvited obscenity, and words that present a "clear and present danger." ⁽⁵⁾ Of these, the "fighting words" doctrine has been most often used to justify speech codes. The doctrine, as articulated in Chaplinsky v. New Hampshire, ⁽⁶⁾ made it unlawful to "address any offensive, derisive or annoying word to any person who is lawfully in any street or public place." Chaplinsky had referred to a local Marshall as a "God damned racketeer" and a "damned fascist" while the nation was at war with Germany. The Court ruled that fighting words are "those by which their very utterance inflict injury or ten to incite an immediate breach of peace." ⁽⁷⁾ Also important to the campus environment, the Court has ruled that persons are not entitled to a captive audience. ⁽⁸⁾ At some institutions, most notably Brown University, some have argued that the First Amendment protects the use of racial epithets and hate speech. In other cases, as with Professor Leonard Jeffries, Jr. at the City University of New York, some have argued that the First Amendment even protects professors who knowingly present incorrect information in their classrooms. ⁽⁹⁾

This study will examine the tension between academic freedom and civil rights with an eye to sorting out the proper uses of the First Amendment on campuses versus the misuse of this sacred right. It will look at academic freedom from several perspectives: First, a historical review of court decisions shaping the current doctrine of academic freedom; second, an examination of the reigning case law concerning both individuals and institutions; and finally, a look at the shifting burdens of proof that have created confusion in recent cases involving academic freedom.

Historical Perspective

The freedom to disseminate information and ideas is a "special concern of the First Amendment." ⁽¹⁰⁾ The unique treatment by the courts of the rights of private colleges and universities was first evidenced in the Dartmouth College case. ⁽¹¹⁾ Attorney Daniel Webster supported the need for a public policy to protect the freedom and independence of academic institutions. Webster argued that:

[T]he case before the court is not of ordinary importance, nor an everyday occurrence. It affects not this college only, but every college, and all the literary institutions in the country. They have flourished, hitherto, and have become in a high degree respectful and useful to the community. They all have a common principle of existence, the inviolability of their characters. It will be a dangerous, most dangerous, experiment to hold these institutions subject to the rise and fall of popular parties and the fluctuations of political parties. ⁽¹²⁾

The Dartmouth College case was important because the Supreme Court recognized that the academic institution was something special -- something more than other organizations, or businesses, something that served its purpose only when free from political interference or threat of external intervention. ⁽¹³⁾ But, despite the Dartmouth College case, the rights of private colleges and universities evolved slowly into a clear doctrine of academic freedom. This became a constitutionally-based protection for the rights of individuals within academic institutions. These guarantees not only protect students and professors in public institutions from the federal government, they also protect them from their state governments. In Gitlow v. New York (1925) the Supreme Court held that First Amendment protections could be applied to the states through the Fourteenth Amendment. ⁽¹⁴⁾

The 1950's witnessed a wave of decisions that recognized the importance of freedom of expression in educational institutions. In Slochower v. Board of Higher Education of New York City, ⁽¹⁵⁾ the Court considered whether a tenured teacher in a public college could be discharged without notice or hearing because he refused to answer a legislative committee's question concerning his earlier membership in the Communist Party. In holding that Professor Slochower's constitutional rights had been violated, the Court ruled that while city authorities were permitted to scrutinize a person's fitness to hold a public position, they could not do so without affording procedural protections. Professor Slochower's refusal to answer questions "admittedly asked for a purpose wholly unrelated to his college functions" ⁽¹⁶⁾ and provided no permissible basis under which he could be discharged from his academic appointment.

Shortly thereafter, in Sweezy v. New Hampshire, ⁽¹⁷⁾ the Court was faced with the question of whether the Attorney General of New Hampshire could prosecute an individual for refusal to answer questions about a lecture delivered at the state university concerning the Progressive Party of the United States. The Attorney General had a clear grant of Legislative authority to compel testimony because the laws in question passed by the New Hampshire Legislature in 1951 provided for a comprehensive scheme of regulation of "subversive activities." "Subversive persons" were made ineligible for employment by the state government, including public educational institutions. The Court held that the Attorney General of New Hampshire had exceeded his authority in questioning Sweezy and, therefore his ruling had violated the Fourteenth Amendment's due process clause. In holding for the teacher, the Court weighed the state's interests against Sweezy's First Amendment right to "academic freedom" and "political expression." The Court stressed the "essentiality of freedom in the community of American universities," and warned against "imposing any strait jacket upon the intellectual leaders in our colleges and universities." ⁽¹⁸⁾

If Sweezy v. New Hampshire was a landmark First Amendment case for the 1950's, then the Supreme Court's most significant pronouncement on academic freedom in the 1960's came in its decision in Keyishian v. Board of Regents of the University of the State of New York. ⁽¹⁹⁾ The Keyishian case involved faculty members whose jobs were endangered when they refused to sign loyalty certificates and sought declaratory and injunctive relief from the Supreme Court. The certificates were part of an intricate statutory and regulatory scheme aimed at preventing state employment of "subversive" persons. The Court held the New York scheme unconstitutionally vague, applying heightened scrutiny in light of the important First Amendment interest at stake:

Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. ⁽²⁰⁾

The Court tied its strict standard prohibiting vagueness to the public interest in preserving academic freedom. Because the case involved individual professors suing for protection from both the state law and the state university enforcing the law, this case reaffirmed that academic freedom protects individuals even from institutions of which they are employees. Again writing for the Court, Brennan argued that "the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected. . . . It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing conditions upon a benefit or privilege." ⁽²¹⁾

The Court went further in 1968 in Pickering v. Board of Education (391 U.S. 563) when it established a balancing test for determining if public employees', including teachers', utterances were of public concern and therefore protected under the First Amendment. Marvin Pickering, a teacher in Will County, Illinois, wrote a letter critical of the school board for which he was fired when the letter was published in a local newspaper. Though Pickering lost in the lower courts, his dismissal was reversed unanimously by the Supreme Court. Justice Thurgood Marshall ruled that Pickering's letter was "public" criticism and singled out a public figure, the Superintendent for scrutiny. Furthermore, since Pickering's letter called on the public, it raised issued of public concern.

Marshall wrote:

The problem in any case is to arrive at a balance between the interest of the [speaker], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. . . . The question of whether a school system requires additional funds is a matter of legitimate public concern . . . . On such a question a free and open debate is vital to informed decision making by the electorate. Teachers are, as a class, members of the community mkost likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. (Pickering, 568, 572).

Furthermore, Marshall ruled that since the letter was not disruptive to activities of the school, the school board had no business terminating Pickering. However, had the board been able to show that the letter disrupted the "harmony" of the school, Marshall said the Court might have ruled differently. So too if the communication had been wholly interpersonal in content. (This latter point was reinforced in Connick v. Myers, 461 U.S. 138 (1983) and Waters v. Churchill, 511 U.S. 661 (1994).)

 

Affirmative Action

The doctrine of academic freedom evolved further in the 1970's. In Regents of the University of California v. Bakke, ⁽²²⁾ a white male, Allan Bakke, who had been denied entry to medical school sued the University of California, claiming that the school's affirmative action quotas discriminated against him on the basis of race. The Court concluded that the specific affirmative action program of the medical school violated Title VI of the Civil Rights Act of 1964. However, the Court said this about academic freedom:

Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. . . . In arguing that its universities must be accorded the right to select those students who will contribute First Amendment interest. ⁽²³⁾ (emphasis ours).

At issue was academic freedom in the context of an institution's right to self-governance rather than the more traditional individual's personal liberties in teaching, speaking, and scholarship.

Individual v. Institution

The nature of the constitutional protection afforded academic institutions and the individuals within them remains controversial. Disputes normally center on who should be the primary beneficiary of academic freedom but have, on occasion, extended to such issues as sexual harassment and copyrights. While the Bill of Rights and the Fourteenth Amendment are applicable mainly to individuals, there nonetheless has evolved a constitutionally-based protection for academic institutions. Conflict arises when the interests of the individuals clash with the concerns of the institution as to who should be the primary beneficiary of academic freedom.

In two landmark decisions, Sweezy v. New Hampshire and Keyishian v. Board of Regents, the Court found in favor of the individual professor rather than the institution. In Sweezy, the Court was concerned about limitations on the university community because individual professors might be silenced. The Court explicitly linked its discussion of freedom in the university to the importance of individual, not institutional rights: "We believe that there unquestionably was an invasion of petitioner's liberties in the area of academic freedom and political expression." ⁽²⁴⁾ Likewise, in Keyishian, the Court granted an individual professor the right to academic freedom over the state and its university. In a recent decision, Waters v. Churchill (1994), the Supreme Court ruled that the public employees such as nurses, teachers and police officers could not be punished or fired without some reasonable, factual basis for believing their remarks were disruptive in the workplace. However, if such a basis was discovered, then the remarks of the public employees were not protected by the First Amendment. Justice O'Connor wrote, "When someone who is paid a salary so that she will contribute to an agency's effective operation . . . says things that detract from the agency's effective operation, the government employer must have some power to restrain her." ⁽²⁵⁾ In short, by a 7 to 2 margin, the Court ruled that persons who affect the morale of operations at public institutions are subject to dismissal if they do not complain through proper channels and if they do not stop complaining on the job site once the issue is resolved. For example, once a tenure decision has been resolved, faculty members would be wise not to complain about it on the campus since such complaints undermine the tenure procedure and can prove divisive to the workplace.

Institutions have other rights. The Bakke decision cited language from Justice Frankfurter's concurrence in Sweezy as support for an institution's academic freedom. ⁽²⁶⁾ Justice Frankfurter had listed the "four essential freedoms" of a university: "to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." ⁽²⁷⁾ While the Court re-affirmed the university's right to select a unique student body, it also ruled that the university's claim must yield to the plaintiff's Fourteenth Amendment rights and ordered the University of California to admit Bakke. ⁽²⁸⁾ On March 18, 1996, the United States Court of Appeals for the Fifth Circuit in Texas V. Hopwood concluded on a 2-1 vote that race could not be taken into account in admissions decisions in order to achieve diversity. However, the ruling is based on the applications of four white students to a law school; thus, it mirrors that part of Bakke that applies to professional schools rather than using an undergraduate appeal to test the law.

Copyright

One of the most confusing areas of the law concerns copyrights. Article I of the Constitution reads, "The Congress shall have the power.... To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . ." Most professors understand the concept of "fair use" as reaffirmed in the Copyright Act of 1976. The act allows for the "fair use" of copyrighted materials for educational purposes. ⁽²⁹⁾ In determining fair use, four factors must be considered: the purpose and character of the use, the nature of the work being reproduced, the amount and substantiality of the original work reproduced, and the effect upon the potential market for the work. Because the courts have generally balanced the effect of each factor in a particular case, it is difficult to set strict standards for what does and does not constitute fair use. ⁽³⁰⁾ When in doubt, permission should be obtained.

Unfortunately, the 1976 Act contained a loophole so large that several truck loads of computer programs were driven through it. A U.C.L.A. professor who bought an engineering software program copied it for his colleagues and some students. The engineering firm sued. U.C.L.A. argued that the professor was not guilty because the 1976 law exempted government agencies and U.C.L.A. was part of the state of California. The courts reluctantly went along with U.C.L.A.'s argument. Until Congress closed the loophole several years ago, professors in institutions across the land were photocopying documents and duplicating disks at a dizzying pace.

The issue here is who owns the "intellectual property." Intellectual property includes:

*ideas covered by patents

*authorships copyrighted and "fixed in any medium of expression" ⁽³¹⁾

*slogans, symbols, logos registered as trademarks

*trade secrets

The courts have ruled that professors own the copyright to their lectures through common law. ⁽³²⁾ More difficult to understand are the rules governing the work a professor or teacher does while in the employ of a university. Collaborative efforts can wreak havoc on the copyrights and credit toward tenure of the participants. ⁽³³⁾ Furthermore, the owner of a copyright may "assign" or "license" all or part of it to another. The 1976 law does not contain the specific exemption for professors' writings from the work for hire rule. ⁽³⁴⁾ The 1909 Act did contain such a provision. Some universities interpret this to mean that the work of professors belongs to the university. ⁽³⁵⁾ Some jurists argue to the contrary that because the 1976 legislation strengthened the rights of creators, the exemption was unnecessary. ⁽³⁶⁾ The Supreme Court stepped into the fray in CCNV v. Reid (1989) arguing that since the Congress provided no definition of "employee" in the 1976 statute, the prevailing definition had to be deduced from common law. After sifting through a list of criteria for what constitutes unsupervised work, the Court considered definitions of "Master, Servant, and Independent Contractor." When it comes to publications, Justice Marshall, who wrote the majority decision, argued that professors were independent contractors. Professors are not required to produce specific publications to receive tenure or to be promoted; they are simply required to publish scholarly work, and even that is not true in all cases. But professors should take note that the more help and supervision they receive from their universities, the more likely they are to fall into the servant category.

Finally and often most confusing is the freedom to examine "creative" works or materials, even when copyright permissions have been properly obtained. Suppose the drama department on a campus wants to stage pornographic material? Or better, suppose a teacher of a course in First Amendment regulation shows the movie Deep Throat which the court ruled pornographic in 1973 in Miller v. California?

Just such a case occurred in Florida in the 1970's. The professor's film was seized by the state and it asked permission to destroy it. But on procedural grounds and while questioning the judgement of the professor, the Supreme Court of Florida ordered (6 to 1) the state to return the film to the professor. The case was not appealed to the Supreme Court of the United States where the Constitutional issue of a professor's right to explore a Supreme Court case such as Miller even when students or administrators objected would have been addressed. ⁽³⁷⁾

Electronic Communications

With the evolution of cyberspace even more confusion has reigned on campuses. What if a professor using a university account distributes pornography through the Internet? Does copyright protection extend to material put out on a computer bulletin board? ⁽³⁸⁾ Can a person be guilty of sexual harassment over the Internet? Is prohibiting a bulletin board or chat group from conducting conversations tantamount to violating the First Amendment's protection of freedom of assembly?

The difficulty in answering these questions arises from the unique nature of the pervasive and invasive Internet. Bulletin boards, for example, are very inexpensive to start up and have the advantage of national reach. Communication through bulletin boards is instantaneous, interactive, and can be anonymous. Bulletin boards and chat groups may seek protection behind the freedom of assembly clause of the First Amendment arguing that they are an association. The Supreme Court has regularly protected such speech. ⁽³⁹⁾

Basically, the same rules that apply to print and speech in other realms also apply in cyberspace. For example, the rules of libel and slander apply to computer bits just as surely as they do to utterances and printed defamation. But some complications arise. For example, many computer networks allow members to cross international borders. In such cases, it might be difficult to determine which country's laws apply. Many bulletin board users claim that they are akin to public parks, streets, and speakers corners. Therefore, they should be protected under the First Amendment's freedom of assembly and speech provisions. ⁽⁴⁰⁾ In 1991, a federal judge held that CompuServe was not liable for defamatory statements posted by a user with which CompuServe had no business relationship and over which it had no control. In 1995, however, a New York state trial judged ruled that Prodigy was liable for an occurrence in a chat group which Prodigy moderated. Furthermore, public places are subject to public nuisance laws. For example, in Wilson v. Parent (1961), the Court found public profanity to be a public nuisance. Image what you could with certain items that regularly appear on bulletin boards or server lists. The 1984 law prohibiting the distribution of child pornography led in part to a black market in the material. The Internet has become the marketplace of choice for such material. In 1986 the law was strengthened when the government punished:

any person who . . . knowingly makes, prints, or publishes, or causes to be made, printed or published, any notice of advertisement seeking or offering . . . to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such depiction involves the use of a minor engaging in sexually explicit conduct. ⁽⁴¹⁾

The government has convicted persons for such crimes. ⁽⁴²⁾ In October 1996 the Congress changed that law by passing the Child Pornography Prevention Act which eliminated the requirement that those filmed or taped actually be minors. Now the distribution any material purporting to be child pornography, regardless of the age of the participants or the use of computer graphics, is a crime.

If indecent material is transmitted over the Internet, are the local community standards developed in Miller v. California (1973) applied to the community where the material is uploaded, the community where it is downloaded, or is an Internet community to be established? These issues are being raised in a current case, U.S. v. Thomas. ⁽⁴³⁾ In this case, information transmitted by a couple in California was downloaded in Tennessee, where local community standards regarding indecency are more restrictive. The Supreme Court has already ruled that sexually explicit TV channels can be blocked from broadcasting even on cable until after 10PM. The Court upheld that section of the Telecommunications Act of 1996 which requires cable companies to comply. ⁽⁴⁴⁾

Part of the difficulty here is the danger that the Internet could be reduced to using only communication which is inoffensive or unharmful to children. But in Butler v. Michigan (1957) the Supreme Court refused to force the adult population to reading only what was fit for children. ⁽⁴⁵⁾ Whether that standard will be applied to the Internet will be decided very soon by the Supreme Court. The outcome of this case will have important implications for online users. ⁽⁴⁶⁾ In a related case, NEA v. Finley (97-371), the Court ruled that "Congress has wide latitude to set spending priorities," and therefore, its decency standard for grants from the NEA was upheld.

In a recent case, Cubby, Inc. v. Compuserve, Inc., ⁽⁴⁷⁾ Cubby brought suit for libel, business disparagement, and unfair competition regarding comments posted to "Rumorville," a special interest forum available on Compuserve. The District Court granted summary judgment dismissing all claims against Compuserve under the theory that Compuserve acted as a distributor of material, similar to a "bookstore." The actual writers of the material lacked an agency relationship with Compuserve, since they were neither Compuserve employees nor had they contracted with Compuserve directly. However, the implications for universities are far from clear. For example, would the same independent contractor relationship determined in the Cubby case apply to articles linked to a university home page by a student paid by the university to maintain the page? The liability borne by gateway operators, Web sites, and their users is far from established.

In fact, authorities have had difficulty prosecuting some cyberspace actions under existing laws. In It's in the Cards, Inc. v. Faschetto ⁽⁴⁸⁾ in 1995, the court held that a sports bulletin board was not a "periodical publication", as required for action under Wisconsin statutes, and therefore the claim of defamation was invalid. In 1996 Section 230 of the Telecommunications Act stipulated that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. . . . No provider or user of an interactive computer service shall be held liable on account of:

A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

The intent of this provision was to overturn Stratton-Oakmont v. Prodigy, in which a provider was held accountable for something an individual placed on the net. The new legislative provision was a major victory for computer service operators.

In a copyright case in late 1994, a U.S. District Judge dismissed charges against an MIT student who ran a Bulletin Board System on MIT computers and promoted the copying of an estimated million dollars worth of copyrighted software by users all over the world. ⁽⁴⁹⁾ Since LaMacchia, the student, did not receive any financial gain in the process of running the Bulletin Board, he could not be tried for either copyright infringement or wire fraud.

The legal theories necessary to adjudicate electronic communications cases become even murkier when one considers the multitude of communication types. E-mail provides for private communication between two people; Usenet groups and Bulletin Boards provide for communications between thousands of people; and the World Wide Web provides links to existing files worldwide. ⁽⁵⁰⁾ With multimedia, any of these communications can be audio, video, text, still pictures, or some combination. What standards are to be used in these cases? As the Information Superhighway develops and additional methods of communicating are introduced, additional judicial standards will be required. Even now, clarification of existing standards or the introduction of new standards is needed. Should network operators be treated as common carriers (the telephone model), publishers (the print model), broadcasters (the broadcast model), subscriptions service (the cable model), or distributors?

The publishing model is advantageous because it falls under the purview of Miami Herald Publishing v. Tornillo (1974), which affords the highest amount of First Amendment protection of any medium. Internet operators under this model would enjoy all the freedoms a newspaper does, though they would be responsible for libel under the Sullivan test.

The common carrier model is more complex. It must be of a "quasi-public" nature, use the same business procedures, and not operated using "individualized decisions. Common carriers, such as telephone companies, must let the user decide what is transmitted. The advantage of being a common carrier is that you are not liable for what is carried; you simply provide the equipment.

Cable television, which is often considered a common carrier utility, provides a case in point. In National Association of Regulatory Utility Commissioners, the court of appeals held that a cable system could be subject to common carrier regulation even on some non-video channels, if, in fact, the cable system operated those channels in a manner which otherwise met the defining characteristics of common carriage. ⁽⁵¹⁾ But the Supreme Court eventually ruled that such broadcast content controls as equal access, equal time, and the fairness doctrine (see below) only applied to cable channels that were initiated by the local cable provider. Furthermore, cable programming that is obscene is not protected by the First Amendment, while cable programming that is deemed indecent is protect by the First Amendment. The state of Utah, for example, has consistently lost cases in which it tried to apply the indecent standard of the Pacifica case to cable. ⁽⁵²⁾ Thus if the Internet is an analog to cable, obscenity could be prohibited but indecency could not.

However, telephone, another common carrier, presents a different picture. Section 223(a) of the Communications Act makes it unlawful to "make any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent." It also prohibits harassing or threatening calls. Section 223(b) provides:

Whoever knowingly ... by means of telephone, makes (directly or by recording device) any obscene or indecent communication for commercial purposes to any person under eighteen years of age or to any other person without that person's consent, regardless of whether the maker of such communication placed the call; or permits any telephone facility under such person's control to be used for an activity prohibited by subparagraph (A), shall be fined not more than $50,000 or imprisoned not more than six months, or both.

Thus, the law left open the option of adults using so-called "Dial-a-Porn" services, but subjected them to prosecution if they solicited minors. Since Internet services are provided mainly by phone, this analog appeared to be a strong one to many in Congress when they passed the Communication Decency Act.

The broadcaster model is fraught with difficulty because broadcasters have been, unfortunately, afforded less protection than newspapers. They are subject to an indecency standard because of the Pacifica case. They are subject to equal time and equal access rules because of the Communication Act. And until 1987 were even monitored for editorial comments under the so-called Fairness Doctrine. Such content intensive pre-cursors to the Internet, such as video-text and tele-text, were sometimes subjected to content controls because of their content and because of the technology that delivered them. If inter-active videotext was delivered by vertical blanking in television broadcast form, some argued that it should be subject to the same controls as television programming even though much of what was broadcast was derived from newspapers. For example, federal law prohibits broadcast stations from using "any obscene indecent, or profane language by means of radio communication." ⁽⁵³⁾ It was based on this reasoning that Congress passed the Communication Decency Act which applied the federal law to the Internet using the broadcast standard.

The subscription model would treat Internet providers as cable companies. Because you subscribe to the service, you ostensibly know what you are getting. Thus, communication would be afforded a great deal of protection. However, cable companies are also common carriers and have on occasion been forced to carry local television stations and access channels against their wills.

Finally, there is the distributor model, wherein the Internet provider claims to be no more than a bookseller or news vendor. Most Supreme Court rulings have protected libraries and other providers against charges of liability because they are not responsible for the content of the items they sell. ⁽⁵⁴⁾ Such liability would put a "chilling effect" on distributors. However, unless they are held liable, they may not properly monitor their systems, if indeed they should, for hate messages, racist language, and obscenity.

Aside from accessing the World Wide Web, online communication allows participants to enjoy e-mail. While psychically more distant that the more immediate communication available through the telephone, e-mail allows users to respond at their leisure. It is inexpensive and currently uncensored. However, e-mail is open to abuse. A message sent to one person can be endlessly forwarded. For example, a recent e-mail memo from a department chair suspending academic governance on issue of controversy among his faculty was duplicated and sent around the country in an attempt to embarrass him. E-mail can be tapped fairly easily not only by the service provider but by the ambitious hacker. It can be constructed anonymously, and thereby, be used to insult, harass, and defame with impunity. Thus, e-mail raises its own set of First Amendment issue.

To overcome these difficulties some campuses have instituted contracts between users and the university. These are generally known as "acceptable use policies." These policies concern restrictions on types of speech allowed, who may use the system, when they may use it, and security of message content. These policies can be enforced with the use of filters that pick up certain words and then either terminate communication or issue a warning. The offending message is often forwarded to authorities for review. While private online systems have the right to censor and ban a user's speech, ⁽⁵⁵⁾ the case is murkier for universities that are publicly funded. Rules imposed in these cases must be content neutral under First Amendment precedent set particularly in "hate speech" cases wherein judges found codes to be overly broad and vague and thus open to arbitrary and capricious application. Furthermore, we should not be surprised if the courts added the Fourth Amendment right of privacy to the First Amendment right of freedom of expression when questioning campus policies with regard to e-mail. ⁽⁵⁶⁾ The right to publish privately and anonymously was born during the revolution and sustained during the debate over the Constitution and the Bill of Rights. There can be little doubt about the original intent of the Founders on this issue. Government or by extension university use of filters and censorship standards certainly invades privacy and chills free speech. These sections of acceptable use policies will not survive Constitutional scrutiny.

Government control over Internet communications has been justified on many bases including prevention of terrorism, stopping the distribution of obscene or indecent material to children, detection of computer hackers, and the traditional position that all new media should be regulated until their impact is known. Thus, some legislator believe that a new regulatory model should be developed for electronic communications providers. Their call raises several questions: What level of responsibility will universities bear for communications initiated by their students? Will communications retain traditional academic freedom once they leave the campus?

Answers to these questions were attempted when Congress passed and the president signed the Communication Decency Act (C.D.A.). The act imposed "indecency" regulations on online communications similar to those that were imposed on broadcasters by the FCC and upheld by the Supreme Court in the FCC v. Pacifica. Violators were subject to a $250,000 fine and/or imprisonment of two years. But a three-judge panel of the United States Court of Appeals for the Third Circuit unanimously held that the C.D.A. of the Congress was unconstitutional. Two of the judges found the term "indecency" overbroad and vague. The other judge specifically criticized the Pacifica ruling suggesting that it should be discarded. Judge Sloviter concluded,

that the C.D.A. reaches speech subject to the full protection of the First Amendment, at least for adults. . . . [T]here is no effective way for many Internet content providers to limit the effective reach of the C.D.A. to adults because there is no realistic way for many providers to ascertain the age of those accessing their materials.

Judge Buckwalter wrote in support that "the challenged provisions are so vague as to violate both the First and Fifth Amendments, and in particular Congress' reliance on Pacifica is misplaced." Judge Dalzell concurred:

The Internet is a far more speech-enhancing medium than print. . . . the Internet may be regarded as a never-ending world-wide conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.

The appeals court was sustained by a unanimous decision from the U. S. Supreme Court on June 26, 1997 in Reno v. ACLU, 96-510. Citing the appeals court, the Supreme Court found the language of the CDA to be overly broad and were trouble by the "vagueness" of the term "indecent." Justice John Paul Stevens wrote the decision that argued that the government's interest in keeping children away from harmful materials "does not justify an unnecessarily broad suppression of speech addressed to adults." By a seven to two margin the Court also struck down parts of the act that banned transmission of obscene or indecent material to minors. In the course of its opinion, the Court said that software provides "a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material."

One result of this decision may be the increase use of Internet screening software such as "SurfWatch," "Cyber Patrol," and "NetNannyquot", which screen out selected newsgroups from home computers. However, the use of these and other devices in schools and libraries, which are public and government facilities, may violate the First Amendment rights of students and public. Filters interfere with the public right to obtain certain information. And as the Supreme Court made clear in Tinker v. Des Moines, students do not lose their First Amendment rights at the school house door.

Two additional cases in this area deserve mention. The first involves a two million dollar lawsuit for damages to his career by a graduate student at the University of Texas, Dallas. The student, Gregory Steshko, was kicked off e-mail by the university because he was using his account to broadcast political messages critical of Boris Yeltsin's policy toward the Ukraine and his sexual predilections. Since the University of Texas is government supported, it must answer to the charge that its restrictions on e-mail violate the First Amendment protection of content. Is an e-mail account an automatic right for graduate students? Or is it a privilege that can be revoked at any time? ⁽⁵⁷⁾ The second case involves a University of Michigan student who exchanged e-mail with a man in Canada describing their mutual sexual interest in violence against women and girls. ⁽⁵⁸⁾ Additionally, the student posted a story to an Internet newsgroup describing violent sexual acts. The female character in the story bore the name of one of his classmates. The district judge dismissed all charges against the student, because the communications failed to create a "true threat" as required by First Amendment jurisprudence. The district judge noted that the First Amendment requirements must be met regardless of the mode of communication.

Student Speech

Perhaps the most neglected area of campus liberty is students' First Amendment rights. While students have long and noble history when it comes to the creation of universities and protesting various issues, they return to a marginalized state regularly due to the power structure of most universities. Students formed the first universities at Paris and Bologna in the 1200; they were in charge of administration and hired and fired faculty. The first student rebellion in America probably occurred at Harvard University in 1766; it concerned contaminated butter being served in the dining halls. Inspired by William Lloyd Garrison in 1833, students at Amherst College protested slavery. The President of Amherst quashed the protests on his campus by 1835; but they continued on many other campuses throughout the country. From 1870 on student protests occurred less often with the imposition of in loco parentis by the courts; in other words, campus administrators took on the role of parents when students arrived on the campus. By the 1920s, underground student newspapers were not uncommon and they would flourish during the depression. The Gadfly at Harvard, the Tempest at the University of Michigan, and The Critic at Yale were typical of the times. The Intercollegiate Liberal League published The New Student. In 1931 dental students at the University of California at Berkeley began a protest over secret grading. In that same year, the national membership of the Intercollegiate Socialist Society reached 3,500. The National Student League was started by communists in the same year in New York City. These students traveled to Harlan County, Kentucky in support of coal min workers. In 1934, there was a national strike against war in anticipation of World War II. However, there were also group who supported the fight against fascism, particularly during the Spanish Civil War.

In recent times, these rights have been codified in court precedent. In 1943 in West Virginia State Board of Education V. Barnett, Justice Robert Jackson wrote that student freedoms must be protected "if we are not to strangle the free mind at its source. . . ." ⁽⁵⁹⁾ Just as important, he recognized the flag salute as a "form of utterance" which is a "primitive, but effective way of communicating ideas." ⁽⁶⁰⁾ Twenty-six years later the Court took up Tinker v. Des Moines, a landmark decision on the First Amendment rights of students. Tinker involved three high school students who were suspended from school for wearing black armbands as a symbolic protest against the Vietnam war. ⁽⁶¹⁾ The Supreme Court held that the suspension violated the students' rights of free expression. The Court said students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The Court limited the scope of the decision, however, by stating that school officials could regulate student expression if it caused substantial disruption or material interference with school functions. This decision was further refined on January 13, 1988 when the Court handed down its decision in Hazelwood School District v. Kuhlmeir. ⁽⁶²⁾ Justice Byron White, writing for the majority, said that educators possess censorship authority "over school sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school." ⁽⁶³⁾ This position was consistent with the courts ruling in the Fraser v. Bothel School District of 1986 in which a suspension of a student for a "lewd and indecent" speech was upheld. ⁽⁶⁴⁾ Though the student had uttered no obscene or indecent words, his use of innuendo was deemed enough of a provocation to justify expulsion. The latest area of controversy for schools is on-line publications. Some schools have refused to allow the on-line newspapers to publish the names of students for fear it exposes them to Internet predators. ⁽⁶⁵⁾

The right of public schools to impose dress codes and other restrictions have generally been upheld if they are content neutral. Even strip searches have been upheld by the Supreme Court. ⁽⁶⁶⁾ A troubling case was that of Pawnee Indian children who were told to cut off their braids, which they argued were a symbol of their religious culture. The federal courts sided with the Oklahoma school district. ⁽⁶⁷⁾ However, in a similar case, Alabama & Coushatta Tribes of Texas v. Trustees of Big Sandy Independent School District, ⁽⁶⁸⁾ the district court temporarily enjoined the school district from enforcing its hair length policy against Native American students on the grounds that the students proved a substantial likelihood of First and Fourteenth Amendment infringements. ⁽⁶⁹⁾

A recent ruling by California's Court of Appeals is being closely watched because it involves yet another volatile campus issue, artistic integrity. In July of 1990, the court allowed an appellate ruling stand with only a single dissent. The ruling said that San Diego community college officials acted illegally in canceling a drama class production. The case arose in 1986 when a community college instructor selected the play "Split Second" for his production class. The play concerns a black New York City police officer who, in the heat of the moment, kills a white car-theft suspect who subjected the policeman to a flurry of racial epithets. At the time the play was to run, San Diego was in a state of high tension over the trial of Sagon Penn, a young black charged with the murder of a white police officer. (Penn was eventually acquitted of all charges.) Church leaders and others in the community complained about the selection of the play. Community college officials reviewed the script and noted that there were over 40 vulgar expression and slurs in the first eleven pages. The play was then canceled. The instructor and his students brought suit. In a two-to-one ruling the Court of Appeal argued that the instructor's and students' First Amendment rights had been violated. They said the instructor was within his job description rights to select the play of his choice. Furthermore, they argued there was no "clear and present danger" established for the school or the community. "Rather," the majority said, "school officials were merely concerned with avoiding the discomfort and unpleasantness that always accompany an unpopular or unorthodox point of view." ⁽⁷⁰⁾

Over the years the Supreme Court has consistently ruled against school infringements on religious freedom or their attempts to support one religion over another. In 1948 in McCollum v. Board of Education, the ruled 8-1 that a Champaign, Illinois plan to allow students to attend sectarian religious instruction from clergy and others outside the classroom but on school grounds was unconstitutional. However, in 1952 in Zorach v. Clauson, that decision clarified when the Court ruled 6-3, that students could be allowed to leave the school grounds to attend such services. In 1962 in Engle v. Vitale, the Court struck down the prayer composed by the Board of Regents of New York written for students at a school in Hyde Park. In 1963, the Court ruled in Abington Township School District v. Schempp (7-1), that states could not force students to recite the Lord's Prayers. In 1980 in Stone v. Graham, the Court declared a Kentucky law that required the posting of the Ten Commandments in classrooms to be unconstitutional. The Court went even further in 1985 in a very controversial ruling which struck down an Alabama law by a vote of 6-3 that required public schools to set aside a moment of silence for meditation (Wallace v. Jaffree). In 1987 in Edwards v. Auillard by a vote of 7-2 the Court invalidated a Louisianan law requiring public schools to offer "balanced treatment" between evolution and creationism.

These and other cases indicate that the Court treats public schools, state colleges and universities differently than private institutions. For example, in Lee v. Weisman (1992), the Court prohibited prayers given by local clergy and orchestrated by school officials at graduation ceremonies for public institutions of learning. That decision was reinforced in 1996 in Moore v. Ingrebretsen which effectively struck down a Mississippi law allowing students to give prayers at assemblies and over the school intercom, and again in Santa Fe Independent School District v. Doe (2000), where the Court ruled 6-3 to barr officials from letting students lead stadium crowds in prayer before football games. Said Justice Stevens, "The religious liberty protected by the Constitution is abridged when the state affirmatively sponsors the particular practice of prayer." ⁽⁷¹⁾ The only wiggle room that the Supreme Court has provided came in October of 2001 when the Court in a one line decision refused to reverse the Brown v. Gilmore ruling out of Virginia, which allowed for a moment of silence in public schools. Virginia legislators stressed that students were free to do as they pleased during the moment of silence. The ACLU had argued that such statutes violated the First Amendment because students feel coerced into praying during the moment of silence.

Officials in private institutions are clearly given wider latitude in regulating student activities and supporting religion since teachers and school administrators in public institutions are considered representatives of the state. However, private action may be considered public action if the state or federal government is involved in some way, such as subsidizing the institution or providing grants to its professors and students. ⁽⁷²⁾ Furthermore, almost 40 states have statutes protecting freedom of expression in all venues, private as well as public. California's provision is typical: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not abridge liberty of speech or press."

If students wish to meet somewhere to pray, it is permissible at a public school, but officials and teachers may neither discourage nor encourage such activity while acting in their official capacity. This distinction reflects the basic notion that the First Amendment was written as a check on the abuse of government or state officials.

Student Press

The courts have generally held that college and university administrators have the authority to regulate student publications where their failure to do so would risk substantial disorder or violence, interruption of classes and class work, or material interference with school discipline. School officials have the burden of proving the necessity for such regulation. However, even the freest student press is treated no different from the general press in the areas of libel and obscenity. Moreover, the student press can be enjoined from advocating or inciting lawless action.

In Dickey v. Alabama (1967), a university president ordered an article containing speeches of "Revolutionaries" stricken from the front page of the student newspaper. In defiance of the president's order, the newspaper ran the article's headline and printed diagonally underneath it the word "censored." The newspaper's editor was suspended. The Court, however, ordered the student to be reinstated and held that the university's action was unconstitutional.

In Antonelli v. Hammond (1970), a university required its student newspaper to submit its copy, for pre-publication review, to a faculty advisory board chosen by the school's president. After the advisory board ruled that the student newspaper could not print an article by Eldridge Cleaver, the newspaper's editor filed suit alleging a violation of his First Amendment rights. The Federal District Court ruled for the students, holding that the university was prohibited from imposing prior restraints on a student publication.

If a state college or university has a student newspaper, its publication cannot be suspended because college officials dislike its editorial comments. In Kois v. Wisconsin (1972) the Supreme Court held that an underground newspaper, Kaleidoscope, which had published nude photographs in covering a genuine news event, could not be censored because "in the context in which [the photographs] appeared . . . they were rationally related to the article that itself was clearly entitled to the protection of the Fourteenth Amendment." ⁽⁷³⁾

In Papish v. Board of Curators of the University of Missouri (1973), a state university expelled graduate student Papish for distributing a student newspaper containing a political cartoon that pictured a policeman raping the Statue of Liberty and the Goddess of Justice with the caption "With Liberty and Justice for All." The paper appeared while high school students were visiting the campus. A Federal Court ordered the student reinstated because the university had not demonstrated that the expression was obscene or otherwise unprotected by the First Amendment. The Supreme Court concurred with a seven member per curium opinion that read in part:

The newspaper . . . had been sold on this state university campus for more than four years pursuant to an authorization obtained from the University Business Office. [D]isenchantment with Miss Papish's performance, understandable as it may have been, is no justification for denial of constitutional rights. ⁽⁷⁴⁾

In Joyner v. Whiting (1973), the President of North Carolina Central University revoked the University's financial support from the official student newspaper because it had printed an editorial comment critical of the school's admission of white students. The editor of the student newspaper said the President's action violated her First Amendment rights. The federal appeals court ruled against the school's administration, finding that there was no evidence of disruption from the publication and no student complaints. The court held: "Censorship of constitutionally protected expression cannot be imposed by suspending the editors, suppressing circulation, requiring imprimatur of controversial articles, excising repugnant material, withdrawing financial support, or asserting any other form of censorial oversight based on the institution's power of the purse." ⁽⁷⁵⁾

Freedom of the press is more limited, however, in cases where publication of a newspaper is part of the curriculum. In Nicholson v. Board of Education (1982), a federal Appeals Court held that students in a journalism class that publishes a school newspaper do not have a constitutional right to be free from pre-publication review. The Court said that school officials have much greater latitude in reviewing a student publication that is part of the curriculum and not an extra-curricular activity. Nicholson must be distinguished from Trujillo v. Love (1971). In Trujillo, a federal District Court ruled that the fact that community college officials had labeled a newspaper a "teaching tool," when in reality it had functioned as a forum for student expression, did not permit censorship. "Having established a particular forum for expression, officials may not place limitations upon the use of that forum which interfere with protected speech." ⁽⁷⁶⁾

More recently, the Court in 1995 required the University of Virginia to pay printing charges for a student newspaper which "offer[ed] a Christian perspective on both personal and community issues, especially those relevant to college students at the University of Virginia." ⁽⁷⁷⁾ The Court held in the Rosenberger ruling that the neutrality required by the Establishment Clause supported payment of the charges since printing charges were paid for other groups. Furthermore, the Court found that in singling out this paper, which discusses from a religious viewpoint topics otherwise worthy of printing cost payment, the University violated the student's free speech rights. Justice Kennedy wrote,

[W]e have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations. ⁽⁷⁸⁾

In a related case, Board of Regents v. Southworth (98-1189, 2000), the Court ruled unanimously that state colleges and universities can require their students to subsidize activist groups on campus, even when these organizations or their guest speakers advance ideological notions alien to some of the students. Southworth had argued that no one should be forced to endorse ideas or contribute to political causes they oppose. Dissident students, however, are not required to endorse ideas or groups. The activity fee, said the Court, simply creates a pool of money that supports campus groups of all stripes. Thus, the system is "viewpoint neutral."

Groups On Campus

Closely linked to this problem is the right of assembly that is deeply embedded in the First Amendment. Groups often assemble on campuses and sometimes their speech is offensive. Campuses need to be particularly careful about abridging the right of assembly as a means of stopping offensive speech. As the Court said in De Jonge v. Oregon (1937), "Peaceable assembly for lawful discussion cannot be made a crime." ⁽⁷⁹⁾ This decision expanded the application of the First Amendment against the states by incorporating it through the Fourteenth Amendment.

But what happens when two parts of the First Amendment come into conflict on a high school or college campus? The government may not establish a religion, according the First Amendment. Normally, the Supreme Court interprets this clause to preclude aiding or encouraging a single religious view. In Edwards v. Aguillard (1987), the Supreme Court ruled 7-2 that giving equal time to "creationism" constituted establishing a religion and thereby violated the First Amendment. ⁽⁸⁰⁾ But other decisions prevent us from deducing a clear-cut rule on this issue. For example, in Brandon v. Board of Education of the Guilderland Central School District (1981), the Court examined a case where several students had organized a group called "Students for Voluntary Prayer," which sought permission to conduct communal prayer meetings in a classroom before the opening of school each day. These students sought no faculty involvement but their request was denied by the principal, the superintendent, and the Board. The students brought suit under the First Amendment. The lower courts did not agree with the students on the grounds that schools could determine activities, that allowing the group to form its own forum constituted encouraging religion, and supervision would be required if the group met on school property. The Supreme Court let the ruling stand. But only a week earlier, in Widmar v. Vincent (1981), the Court ruled that campuses could not deny campus facilities to a group of Christian students if other groups were allowed to use them; the Christian Group was given equal status with other political groups that met on the campus. Justice Powell wrote for the majority that the public forum in question was open to many groups, was already in existence, and would "confer any imprimatur of state approval" on the Christian group. In 1990, this privilege was extended to high school student groups in Board of Education of Westside Community School v. Mergens wherein the plurality on the Court argued that "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." ⁽⁸¹⁾ This decision was a direct outcome of the Equal Access Act which requires schools that receive federal funds to avoid discriminating against any student initiated clubs on the basis of religious or political content of their messages. Critics of the decision argue that it may open public high schools to all kinds of fringe groups, including student gangs and the Ku Klux Klan.

Again, in a 1993 case, Lamb's Chapel v. Center Moriches Union Free School District, ⁽⁸²⁾ the Court unanimously held that once the school district had opened its facilities for after-hours use by local community groups it could not exclude a religious group's request for space to show a six part film on child-rearing just because the group planned to teach it from a Christian perspective. The reasoning in this case helped form the foundation of the Rosenberger decision previously discussed and the most recent decision by the Court on this issue, Good News Club v. Milford Central (99-2036, Slip. Op., June 10, 2001). In Good News the Court re-affirmed its position that religious groups must be permitted to hold after-school study classes in a public elementary school if other clubs were allowed such privileges. The Court said that the government cannot "discriminate" against Christian youth groups "because of [their] religious viewpoint." The 6-3 majority opinion in this case was written by Justice Thomas. In his dissent, Justice Souter wrote that the decision appears to stand "for the remarkable proposition that any public school opened for civil meetings must be open for use a church, synagogue or mosque."

As noted, the freedom of speech poses a particular dilemma when pitted against a potential violation of the Establishment Clause, as it did in Lamb's Chapel. Historically, the Supreme Court has relied on what is known as the Lemon test, first articulated in Lemon v. Kurtzman (1971). Here, statutes in Pennsylvania and Rhode Island which provided funding to private schools, mainly Roman Catholic, for secular education were found unconstitutional. In the opinion of the Court, Chief Justice Burger wrote that to withstand scrutiny:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. ⁽⁸³⁾ (internal quotes deleted).

More recently, Establishment Clause cases have relied on two additional tests. The coercion test, as seen in Lee v. Weisman (1992) provided that "at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise." ⁽⁸⁴⁾ Under this principle a public school in Rhode Island was prohibited from inviting clergy to give invocations and benedictions at graduation ceremonies and providing guidelines for the prayers, as previously mentioned.

In Rosenberger, (previously discussed), the Court relied on neutrality to dispel any concern of an Establishment Clause violation.

The neutrality of the program distinguishes the student fees from a tax levied for the support of a church or a group of churches. A tax of that sort, of course, would run contrary to the Establishment Clause concerns dating from the earliest days of the Republic. ⁽⁸⁵⁾

The neutrality test was also used in a 1993 school case not involving free speech issues. Zobrest v. Catalina Foothills School District centered on the use of a state-paid sign-language interpreter in a sectarian high school. The Court found that Arizona's Individuals with Disabilities Education Act "create[d] a neutral government program dispensing aid not to schools but to individual handicapped children. . . .[T]he Establishment Clause does not prevent [this service.]" ⁽⁸⁶⁾ Under the ruling, the school district was required to provide this service for the Zobrest child, despite the fact that the child attended a parochial school.

To escape some free speech dilemmas the Court may establish policy based on a line of cases extending back to Brandenburg v. Ohio, (1969) a unanimous decision by the Supreme Court that overturned Brandenburg's conviction for having advocated anti-black violence at a gathering of the Ku Klux Klan. Brandenburg's most inflammatory language included these passages:

[I]f our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revenge taken. . . . Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel. ⁽⁸⁷⁾

The Court said political speech was protected unless it was "directed to inciting or producing imminent lawless action, and is likely to produce such action." ⁽⁸⁸⁾ In a series of subsequent decisions, the Court has tried to clarify this decision by arguing that speech is protected by the First Amendment if it is not obscene, not libelous, or falls short of illegal action.

This series of decisions goes to the heart of hate speech laws and campus codes that seek to punish hate speech to teach people that racism is unacceptable and harmful. ⁽⁸⁹⁾ These decisions make writing such codes a near impossibility. For example, in Hess v. Indiana (1973), Gregory Hess was brought to trial for encouraging anti-war demonstrators to escalate their activities. At one point, he yelled, "We'll take the fucking street later." ⁽⁹⁰⁾ The Supreme Court overturned Hess' conviction on the grounds that his speech was protected because it was not "obscene," did not constitute "fighting words," and was unlikely to produce imminent lawless action. Terminiello v. The City of Chicago (1948) is one of the stare decisis precursors to Hess. This oft cited decision overturned a conviction because the sitting judge had instructed the jury that all the prosecution needed to prove was that the speech in question "stirs the public to anger, invites disputes, brings about a condition of unrest, or creates a disturbance." ⁽⁹¹⁾ Writing for the majority, William O. Douglas argued that free speech often invites dispute:

It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions . . . or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. ⁽⁹²⁾

In National Gay Task Force v. Board of Education (1984), an Oklahoma statue requiring teachers who advocated homosexual activity to be fired was struck down on the grounds that the First Amendment does not permit someone to be punished for advocating illegal conduct at some indefinite future time. Even advocacy of non-violent protests cannot be held actionable when it results in violence. ⁽⁹³⁾ The other side of this issue was addressed in U.S. v. Kelner (1976) where the Court of Appeals ruled that a threat that was "unequivocal, unconditional, immediate and specific as to the person threatened as to convey a gravity of purpose and imminent prospect of execution . . ." was not protected speech. ⁽⁹⁴⁾ This standard is perhaps the latest and best definition of fighting words. Furthermore, in Healy v. James (1972) the Supreme Court ruled that speech that is "likely to materially and substantially disrupt the work and discipline of the school" is not protected by the First Amendment. ⁽⁹⁵⁾

The Library

The issue of School Boards removing or censoring library material is of interest to teaching, students, and parents. In 1977 in Manarcini v. Strongsville City School District and again in 1979 in Salvail v. Nashua Board of Education, the Court held that just because the material is available elsewhere does not give the boards an excuse to eliminate it from their libraries. In Board of Education, Island Trees Free School District v. Pico (1982), the Court's 5-4 decision upheld the right of the school's library to retain nine books which the Board wanted removed; they included Kurt Vonnegut's Slaughter House Five and Langston Hughes' Best Short Stories of Negro Writers. Speaking for the majority, Justice Brennan wrote that "the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. . . . [D]iscretion may not be exercised in a narrowly partisan or political manner." ⁽⁹⁶⁾

Harassment

While the tides of academic freedom have swept forward in some areas, they have been threatened by new restrictions on other fronts. Recently, rules defining sexual, ethnic, and racial harassment came into conflict with an individual's right to express opinions about others. On November 10, 1980, the Federal Equal Employment Opportunity Commission established guidelines for what constitutes sexual harassment based on sec. 703 of Title VII of the Civil Rights Act of 1964. ⁽⁹⁷⁾ Unwelcome sexual advances, requests for sexual favors and verbal or physical conduct of sexual nature constitute sexual harassment when submission to such is made either explicitly or implicitly a term or condition of an individual's employment, when submission to or rejection of such conduct by an individual is used as the basis for employment decisions, or when such conduct has the purpose or effect of unreasonably interfering with an individual's work performance. ⁽⁹⁸⁾ The E.E.O.C. directed employers in 1992 to "take all steps necessary," including "developing appropriate sanctions," to eliminate "verbal conduct of a sexual nature [having] the purpose or effect of creating an . . . offensive working environment." ⁽⁹⁹⁾ Under this code, several categories of communication have been labeled sexually harassing. They include making or using derogatory comments or jokes, graphic verbal commentaries about an individual's body, writing suggestive or obscene notes or letters, off color remarks, and so forth. One strong rationale for such rules is that workers in a work place are often a captive audience unable to remove themselves from the site of harassment. ⁽¹⁰⁰⁾ Here, questions of context (work place), intention and perception come into play. The context of a university necessarily places students, professors, staff and administrators under these guidelines. ⁽¹⁰¹⁾ In fact the Court has recently ruled that students who are victims of sexual discrimination or harassment may be entitled to damage awards. In Christine Franklin v. Gwinnett County Schools (1992), the Court handed down a unanimous decision that allowed an Atlanta woman to seek damages beyond back pay and prospective relief from her high school under Title IX of the 1980 Education Act. Until this decision, schools or colleges found to have violated Title IX were threatened only with a loss of federal funds. (For California regulations and list of ways to deal with sexual harassment, see Appendix #3.) This decision was clarified in a five-to-four ruling in 1999 in Davis v. Monroe County Board of Education. ⁽¹⁰²⁾ Justice O'Connor wrote the majority decision that held that if a school official is notified of harassment by one student of another and chose to do nothing about it, then the school is liable for damages. Thus, under this new ruling schools can be held liable "only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive and objectively offensive that it can be said to deprive victims of access to educational opportunities." The virtue of this decision is that it sets out a rather clear burden of proof.

In reaction to the confusion of sexual harassment, the Department of Education of the U. S. Government issued guidelines for determining if harassment had taken place:

In order to give rise to a complaint . . . sexual harassment must be sufficiently severe, persistent, or pervasive that it adversely affects a student's education or creates a hostile or abusive educational environment. . . . For a one time incident to rise to the level of harassment, it must be severe.

One can also consult the OCR web site at: www.ed.gov/offices/OCR/ocrpubs.html

To establish harassment, then, a plaintiff must prove that he/she belongs to a protected group under the law, that he/she was subject to unwelcome sexual harassment, that the harassment was based upon sex, and that the harassment affected a term, condition, or privilege of employment. These rulings have led to a rash of claims of sexual harassment across the country and an often panicked reaction from school officials. In the next sections, the precedential rulings will be discussed along with some of the more interesting recent cases.

On June 23, 1998, in a five to four ruling written by Justice Sandra Day O'Connor, the Supreme Court ruled that school administrators and districts could not be named in sexual harassment suits if they did not know that sexual harassment was going on. In Gebser v. Lago Vista Independent School District (96-1866), O'Connor wrote, "No one questions that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher and the teacher's conduct is reprehensible." But if administrators are unaware of the harassment, they should not be held responsible for it. Justice O'Connor was joined by Justices Rehnquist, Scalia, Kennedy, and Thomas. While this decision may encourage the reporting of harassment, it also builds a protective shield between administrators and their faculty.

However, a few days later, the Supreme Court made clear that businesses do not enjoy the same level of protection as do school districts. In Burlington v. Ellerth (97-569) and Faragher v. Boca Raton (97-282), the Court came down on the side of employees who argued that their companies had not provided enough protection or specific instructions about sexual harassment. In these two complementary decisions, the Court made clear that it was establishing a framework for assessing job related sexual harassment. The framework contains three key elements: 1) Employers are always liable for sexual harassment by supervisors if a victim suffers "a tangible employment action, such as a discharge, demotion or undesirable reassignment." 2) Even in the absence of such actions, employers are usually liable when employees are subjected a "hostile environment," such as lewd and abusive comments from a supervisors. 3) However, in these cases, employers can avoid a large damage award if they can prove that they had "exercised reasonable care to prevent" harassment and that the victim "unreasonably failed to take advantage" of an available complaint process. The question is, where do colleges and universities fall within this new frame work?

Harassment and Hate Speech

Those seeking to restrict speech that contributes to sexual and/or racial harassment might do well to examine the case of Doe v. University of Michigan. ⁽¹⁰³⁾ In 1989, a federal district court held that the University's "Policy on Discrimination and Discriminatory Harassment of Students in the University Environment" was unconstitutional because it was too vague and overbroad. The policy prohibited any behavior, verbal or physical, that stigmatized or victimized an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or veteran status, and proscribed verbal or physical conduct that stigmatized or victimized and individual on the basis of sex or sexual orientation. The policy was brought down by a biology graduate student who insisted on his right to discuss certain controversial theories positing biologically based differences between sexes and races. The court ruled that the "University could not . . . establish an anti-discrimination policy which had the effect of prohibiting certain speech because it disagreed with ideas or messages . . . to be conveyed." ⁽¹⁰⁴⁾ The court did this while recognizing that "fighting words" and "[c]ertain kinds of libel and slander are not protected" under the First Amendment. ⁽¹⁰⁵⁾ However, it should be clear from this example and the ones that follow that the Court has severely narrowed what qualifies as fighting words. In a string of decisions over the years, the Court has decided that the following words are opinions and neither fighting words nor slanderous, nor libelous: bigot, horse's ass, jerk, idiot, con artist, charlatan, Marxist, liar, Fascist, racist. ⁽¹⁰⁶⁾ The most recent set back for speech codes occurred at Stanford University when in February of 1995, the California Supreme Court found the Stanford code to be "overbroad" and a clear violation of standards set down in R.A.V. v. City of St. Paul (1992).

This problem relates to the academic community in another way. Suppose that a professor writes a review of a colleague's book, and that in the course of the review, the professor claims that the books is an example of shoddy scholarship because the author relies on thesis X, which has been discredited by recent research. Further suppose, that in fact, the author attacks thesis X and actually supports thesis Y. Can the author sue the professor for damages on the grounds that his review was based on a blatantly inaccurate reading of the text?

The Supreme Court recently denied certiorari in such a case, Moldea v. New York Times Company. Dan Moldea's book on the influence of crime in the National Football League was negatively reviewed by a Times' sportswriter. In the process of the review, the sportswriter made several factual errors which Moldea claimed deflated the sales of the book and therefore caused him to lose money. Moldea asked the Times to print a letter from him explaining that the errors were egregious and intentional. The Times refused; Moldea sued. The United States Court of Appeals first held for Moldea two to one on February 18, 1994. In part the court said "that four of the five challenged passages characterize [the book] in ways that a jury could meaningfully determine are true or false." ⁽¹⁰⁷⁾ Then in one of the oddest occurrences in legal history, on May 3, 1994, the court reversed itself and decided three to none for the New York Times. This time the court said that the original "opinion failed to take sufficient account of the fact that the statements at issue appeared in the context of a book review, a genre in which readers expect to find spirited critiques of literary works that they understand to be the reviewer's description and assessment of texts that are capable of a number of possible rational interpretations." ⁽¹⁰⁸⁾ Moldea lost his appeal to the Supreme Court.

In making its decisions, the appeals court relied heavily on the Supreme Court's 1990 ruling in Milkovich v. Lorain Journal Co. In that case, involving an editorial sports column that accused a coach of perjury, the Court tried to reassess the prior rulings which had separated assertions of opinion from assertions of fact, arguing that opinion was protected by the First Amendment but that false statements of fact were actionable. In Milkovich the Court tried to close the loophole through which one person could slander or libel another by simply preceding the offending language with the words "in my opinion." The Court said that "loose, figurative, or hyperbolic" statements are not actionable in defamation cases, not because they are opinion, but because the Court had ruled in other cases that parody and imaginative commentary was protected speech. ⁽¹⁰⁹⁾ Therefore, if what is said or written is clearly not intended as parody or fiction, and if it asserts a statement of fact which can be proven false, then it is actionable under defamation rules. Said the Court, "the breathing space which freedoms of expression require in order to survive is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between 'opinion' and fact." ⁽¹¹⁰⁾ Given this ruling, one can understand the confusion of the Court of Appeals.

Before leaving this matter, let me return to the hypothetical example from the academic community. If the professor writing the review based his opinion of "shoddy scholarship" on facts that could be shown to be false, he may be liable for the damages the author suffers due to his review. For example, suppose the author was denied tenure based on the professor's review of his book. If the opinions in the review are based on provably false fact, the author may have a case against the professor particularly when you consider the genre for scholarly reviews are not as imaginative or figurative as editorials or newspapers' book reviews.

Defamation cases aside, the rationale behind restricting the use of the "fighting words" standard has been clearly laid out by Franklyn Haiman in Speech Acts and the First Amendment (1993). Initially, the standard was born from a school of thought that asserts that certain phrases are in fact "performative utterances." Philosophers such as Ludwig Wittgenstein, J. L. Austin, and John Searle argue that words are often deeds. For example, when the president of a university confers degrees, he/she not only speaks words, he/she makes graduation official. So why isn't it equally clear that when one person insults another, that person is also performing an act that can be punished in the way assault is? The answer lies in the analysis of the original example. Just think, if the president of the university had a snit and decided not to confer degrees, do you really believe those present would be deprived of their degrees? Of course not. Any more than if I tell a colleague to go to hell, he actually will. Thus, the Courts have continually restricted the fighting words standard as swear and other words have increased in common usage. As Haiman points out in 1972 the Supreme Court narrowed fighting words to be only those that "tend to incite an immediate breach of the peace." ⁽¹¹¹⁾ Even in the case of malicious language, one must show that the "stimulus had been followed