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Article 5308 of comp.ai.philosophy:
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>From: kadie@herodotus.cs.uiuc.edu (Carl M. Kadie)
Newsgroups: comp.ai.philosophy,sci.logic,alt.comp.acad-freedom.talk
Subject: Re: An apology to Mr. Krishnaprased
Message-ID: <1992Apr28.175752.25826@m.cs.uiuc.edu>
Date: 28 Apr 92 17:57:52 GMT
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References: <1992Apr28.090935.21502@midway.uchicago.edu>
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trivedi@rabi.uchicago.edu (Anil Trivedi) writes:

[...]
>BTW, I am NOT giving legal advice to anyone.
>My point was that Mr Zeleny has been known to offend people. 

AND you mentioned lawsuits. Merely offending people is not grounds for
a lawsuit:

======================
... we have at the same time consistently stressed that 'we are often
"captives" outside the sanctuary of the home and subject to
objectionable speech.' ... The ability of government, consistent with
the Constitution, to shut off discourse solely to protect others from
hearing it is, in other words, dependent upon the showing that
substantial privacy interest are being invaded in an essentially
intolerable manner. Any broader view of this authority would
effectively empower a majority to silence dissidents simply as a
matter of personal predilections." ...
-- From the Supreme Court's decision in _Cohen v. California_, 1971.
=======================

I wrote:

>[Harvard] knows that freedom of expression is central to academic freedom
>and that student and staff, in their public expressions and demonstrations, 
>speak only for themselves.

trivedi@rabi.uchicago.edu (Anil Trivedi) writes:

>Are you not tilting and exaggerating the truth just a little? :-)
>Universities also know the need for *rules*, for they sure have lots
>of them.

The principle that students speak have freedom of expression and that
they speak for themselves are part of the rules at many schools.  Here
are some of the *rules* at my school:

"Students and student organizations should be free to examine and to
discuss all questions of interest to them, and to express opinions
publicly and privately."

"Discussion and expression of all views is permitted within the
University subject only to requirements for the maintenance of order."

"The campus press and media are to be free of censorship."

"The University's control of campus facilities should not be used as a
device of censorship. It should be made clear to the academic and
larger community that sponsorship of guest speakers does not
necessarily imply approval or endorsement of the views expressed
either by the sponsoring group or the institution."

-- from the University of Illinois at Urbana-Champaign's Code on
Campus Affairs and Regulations Applying to All Students

Harvard has also shown that it thinks free expression is important.
Just last week there was a report that a Harvard Law School professor
wanted students punished for parody in the Harvard Law Revue that he
felt was sexist. Three other professors countered that although the
parody "failed to show respect for the dignity of others," that
"failing cannot ...  be the occasion for disciplining the authors ..."
One of the professors, Alan Dershowitz, said "my hope is not only that
they dismiss it, but that they reprimand the professor who filed it."
Last I heard, the Harvard has declined to charge the student.
[batch/apr_26_1992]

Page 12 of the 1992 _America's Best Colleges_ by U.S. News and World
Reports says "Acknowledging the remarkable vitality of grass-roots
publishing at the school [Harvard, the school they rated #1 -cmk],
officials have set up a new center for publications. It offers
offices, computers, phones and production equipment to any student
publication that reserver space. Among the new campus publications:
'The Rag,' a feminist newsletter, and 'Tablu Rasa,' a magazine
offering a 'multi-opinional forum.'"

>Academic freedom, like the freedom of the press, is largely a self-serving
>myth (though a good one for my taste): legally, academics have no special 
>freedoms that ordinary persons do not have.

By academic freedom, I meant rights of students and faculty have
within the context of their institution, for example, freedom of
expression, privacy, due process, and participation.
[student.freedoms]

The Supreme Court takes freedom of expression a unviersities very
seriously. Here is an excerpt from the recent _Rust v. Sullivan_
decision: "Similarly, we have recognized that the university is a
traditional sphere of free expression so fundamental to the
functioning of our society that the Government's ability to control
speech within that sphere by means of conditions attached to the
expenditure of Government funds is restricted by the vagueness and
overbreadth doctrines of the First Amendment, Keyishian v. Board of
Regents, 385 U. S. 589, 603, 605-606 (1967)."

>Constitution prevents the GOVERNMENT from BANNING speech.

True. (But the word in the First Amendment is "abridging" not
"banning".)

> It does NOT
>unconditionally protect us from CONSEQUENCES: paying damages;

I've never heard of anyone "paying damages" for speech merely because
it offended. Have you? Such a lawsuit would be prohibited by the
Constitution.

> going to
>jail for revealing a secret; etc.

Only if you are in the armed forces, etc.

> It does NOT guarantee us free speech
>on/from someone else's property, using their resources: be it a university,
>department store, or a friend.

Depends. If it is a state university, then it does exactly that.
I'm appending a FAQ that details this.

If it is a private universities, it mostly has rules in its student
code (like the ones above from a public university). These give it an
contractual obligation to protect free speech. (Also, in my opinion, a
moral obligation.)

Here is what A Practical Guide to Legal Issues Affecting College
Teachers says about contractual obligations:

==============================================
"Today, courts recognize that when a student pays tuition for a
college education, a legal contract comes into being. The student has
contracted for an education as advertised by the institution in its
catalog and by its representatives. Some like to think of the student
as a consumer of education, and an institution as a supplier of a
product called education. The consumers is entitled to receive what
was paid for. The old days of in loco parentis have been replaced by
the law of contracts and the concepts of consumerism. This contractual
relationship implies a property interest which also triggers
constitutional guarantees at public institutions."
...

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

>Universities, like ALL corporations, CAN be held indirectly responsible 
>for all sorts of things.

Merely offensive speech by students isn't one of them.

> All corporations know this, and all, commercial
>or educational, regulate the individual behavior accordingly.

What regulation? As far as I know, at all public and most private
universities free expression, not speech regulation, is the rule.

Regulation can *increase* liability. According to the book _Law of the
Student Press_ (in reference student newspapers), "Only two court
cases have considered the liability question, and in both cases the
courts found that the institution was free from liability because
control was in the hands of the students.{33,34} ... Thus, despite
arguments by administrators that they need to prevent libel, it
appears that just the opposite is true: Where administrators have not
exercised control over the content of student publications, the courts
have refused to hold their schools responsible for libel appearing in
such publication. If, however, administrators exercise the power of
prior review, then the court will also hold them and their schools
liable for the contents of such publications.  Encouraging the
establishment of a clear-cut separation between school administration
and editor functions may also result in the reduction of libel suits,
for potential plaintiffs will realize that substantial funds are
beyond their reach.  ...  {33} _Mazart v.  State_ 441 N.Y.S.2d 600
(1981) {34} _Milliner v. Turner_ 436 So.2d 1300 (La. App. 1983)"

The recent _Cubby v. Compuserve_ decision also suggests that a
no-screening policy may be best. The judge wrote: "CompuServe has no
more editorial control over such a publication than does a public
library, bookstore or newsstand, and it would be no more feasible for
CompuServe to examine every publication it carries for potentially
defamatory statements than it would be for any other distributor to do
so."


>****************************
>BTW, all of above is only in the best/worst tradition of academic
>discussion.

I agree.

>I personally do not think that Mr Zeleny, for all of his many faults,
>should be denied ACCESS to the computers.
>It may come as a shock to many, and I suspect I am about to become
>wildly unpopular, but I am thinking about writing his advisor urging
>his reinstatement.
>That will be only a REQUEST, although a well-reasoned one.
[...]

Please do.

- Carl

=============== ftp.eff.org:pub/academic/faq/media.control ===============
q: Since freedom of the press belongs to those who own presses, a
public university can do anything it wants with the media that it
owns, right?

a: Like any organization, the government must work within its charter
(the Constitution). The Supreme Court has said that this limits the
Government's authority to control the media that owns and controls.
The rational is that it would be dangerous for a Government that is
elected by the people to have too much control on what the people
can say and read.

The Supreme Court calls created forums, like a student newspaper or
campus mail systems, limited public forums. It says that the
government can limited who may access these forums and/or what topics
may be discussed. But otherwise, "it is bound by the same standards as
apply in a traditional public forum"; "content-based prohibition must
be narrowly drawn to effectuate a compelling state interest." For
example, viewpoint-based discrimination is forbidden.

- Carl

ANNOTATED REFERENCES

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

=================
law/san-diego-committee-v-gov-bd
=================
Excerpts from San Diego Committee v.  Governing Bd., 790 F.2d 1471
(1986).  A decision by an appellate court that applied the Supreme
Court's Public Forum Doctrine (to a school newspaper).

=================
law/stanley-v-magrath
=================
Comments from _Public Schools Law: Teachers' and Students' Rights_ 2nd
Ed. by Martha M. McCarthy and Nelda H. Cambron-McCabe, published in
1987 by Allyn and Bacon, Inc. It says, in part, "[a]lthough school
boards are not obligated to support student papers, if a given
publication was originally created as a free speech forum, removal of
financial or other school board support can be construed as an
unlawful effort to stifle free expression." Also, "school
authorities cannot withdraw support from a student publication simply
because of displeasure with the content" and "the content of a
school-sponsored paper that is established as a medium for student
expression cannot be regulated more closely than a nonsponsored
paper". Also, it tells what to do about libel in student
publications.

=================
law/student-publications.misc
=================
Quotes from the book _Law of the Student Press_ by the Student Press
Law Center (1985,1988). They say that four-letter words are protected
speech, that public universities are not likely to be liable for
publications that they for which they do not control the contents, and
that the _Hazelwood_ decision does not apply to universities.

=================
law/constraints.constitutional
=================
Comments from _A Practical Guide to Legal Issues Affecting College
Teachers_ by Partrica A. Hollander, D. Parker Young, and Donald D.
Gehring.  (College Administration Publication, 1985).  Discusses the
constitutional constraints on public universities including the
requires for freedom of expression, freedom against unreasonable
searches and seizures, due process, specific rules.

=================
law/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."


=================
law/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.

=================
law/rust-v-sullivan
=================
The decision and decent for the so-called abortion information gag
rule case. The decision explicitly mentions universities as a place
where free expression is so important that gag rules would not be
allowed.

=================
law/keyishian-v-board-of-regents
=================
In this Supreme Court case, the Court said that public universities
can not infringe on the Constitutionally protected rights of their
students and employees (specially with regard to loyalty oaths).

=================
law/perry-v-perry
=================
Comments from the ACLU Handbook _The Rights of _Teachers_. It says
that campus mail systems (and other school facilities) can be limited
public forums. (Perry v. Perry was about an interschool mail system.
It was one of the cases that defined the Public Forum Doctrine.)

Also, a paraphrase from an ACLU handbook _The Rights of Teachers_. It
says that generally, speech, if otherwise shielded from punishment by
the First Amendment, does not lose that protection because its tone is
sharp.

Also, from p. 92, it says that there are legal limits to what a
(public) school can ask its teachers to sign. [Some of these same
limits might apply to what a school can ask a user to sign as a
condition of getting (or keeping) a computer account.]

=================
law/constitution.us
=================
The Constitution of the United States

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

To get these documents by email, send email to archive-server@eff.org.
Include the line(s) (be sure to include the space before the file
name):

send acad-freedom/law san-diego-committee-v-gov-bd
send acad-freedom/law stanley-v-magrath
send acad-freedom/law student-publications.misc
send acad-freedom/law constraints.constitutional
send acad-freedom/law uwm-post-v-u-of-wisconsin
send acad-freedom/law doe-v-u-of-michigan
send acad-freedom/law rust-v-sullivan
send acad-freedom/law keyishian-v-board-of-regents
send acad-freedom/law perry-v-perry
send acad-freedom/law constitution.us

The files are also available via anonymous ftp from ftp.eff.org
(192.88.144.4) as file(s):
  pub/academic/law/san-diego-committee-v-gov-bd
  pub/academic/law/stanley-v-magrath
  pub/academic/law/student-publications.misc
  pub/academic/law/constraints.constitutional
  pub/academic/law/uwm-post-v-u-of-wisconsin
  pub/academic/law/doe-v-u-of-michigan
  pub/academic/law/rust-v-sullivan
  pub/academic/law/keyishian-v-board-of-regents
  pub/academic/law/perry-v-perry
  pub/academic/law/constitution.us

ANNOTATED REFERENCES

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

=================
student.freedoms
=================
Joint Statement on Rights and Freedoms of Students -- This is the main
statement on student academic freedom.

=================
batch/apr_26_1992
=================
[No annotation available.]

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

To get these documents by email, send email to archive-server@eff.org.
Include the line(s) (be sure to include the space before the file
name):

send acad-freedom student.freedoms
send acad-freedom/batch apr_26_1992

The files are also available via anonymous ftp from ftp.eff.org
(192.88.144.4) as file(s):
  pub/academic/student.freedoms
  pub/academic/batch/apr_26_1992
--
Carl Kadie -- kadie@cs.uiuc.edu -- University of Illinois at Urbana-Champaign


