=============== ftp://ftp.eff.org/pub/CAF/faq/censorship-and-harassment =============== q: Must/should universities ban material that some find offensive (from Netnews facilities, email, libraries, and student publications, etc) in order to comply with antiharassment laws? a: No. U.S. federal courts have said that harassing speech is different from offensive speech. While face-to-face harassment can be prohibited, mere offensive speech is protected by the principles of academic freedom and, at state universities, by the Constitution. The courts have also said that that it is unconstitutional at state universities to base campus speech restrictions on EEOC rules. Here is part of a decision: ==============Excerpt uwm-post-v-u-of-wisconsin ========== (3) PARALLEL TO TITLE VII LAW The Board of Regents argues that this Court should find the UW Rule constitutional because its prohibition of discriminatory speech which creates a hostile environment has parallels in the employment setting. The Board notes that, under Title VII, an employer has a duty to take appropriate corrective action when it learns of pervasive illegal harassment. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 72 (1986). The Board correctly states Title VII law. However, its argument regarding Title VII law has at least three difficulties. First, Title VII addresses employment, not educational, settings. Second, even if Title VII governed educational settings, the Meritor holding would not apply to this case. The Meritor Court held that courts should look to agency principles when determining whether an employer is to be held liable for its employee's actions. See id. Since employees may act as their employer's agents, agency law may hold an employer liable for its employees actions. In contrast, agency theory would generally not hold a school liable for its students' actions since students normally are not agents of the school. Finally, even if the legal duties set forth in Meritor applied to this case, they would not make the UW Rule constitutional. Since Title VII is only a statute, it cannot supersede the requirements of the First Amendment. ============================ The intellectual freedom principles developed by libraries offer some guidance. The American Library Association statement on Challenged Materials says: "Freedom of expression is protected by the Constitution of the United States, but constitutionally protected expression is often separated from unprotected expression only by a dim and uncertain line. The Constitution requires a procedure designed to focus searchingly on challenged expression before it can be suppressed. An adversary hearing is a part of this procedure." Private institutions are legally free to violate the standards set by the Constitution and academic freedom. They should not, however, try to justify their violations with appeals to government rules. - Carl ANNOTATED REFERENCES (All these documents are available on-line. Access information follows.) ================= academic/speech_codes.aaup ================= [No annotation available.] ================= law/uwm-post-v-u-of-wisconsin ================= * Expression -- Hate Speech -- UWM Post v. U Of Wisconsin The full text of UWM POST v. U. of Wisconsin. This recent district court ruling goes into detail about the difference between protected offensive expression and illegal harassment. It even mentions email. It concludes: "The founding fathers of this nation produced a remarkable document in the Constitution but it was ratified only with the promise of the Bill of Rights. The First Amendment is central to our concept of freedom. The God-given "unalienable rights" that the infant nation rallied to in the Declaration of Independence can be preserved only if their application is rigorously analyzed. The problems of bigotry and discrimination sought to be addressed here are real and truly corrosive of the educational environment. But freedom of speech is almost absolute in our land and the only restriction the fighting words doctrine can abide is that based on the fear of violent reaction. Content-based prohibitions such as that in the UW Rule, however well intended, simply cannot survive the screening which our Constitution demands." ================= law/doe-v-u-of-michigan ================= * Expression -- Hate Speech -- Doe v. U of Michigan This is Doe v. University of Michigan. In this widely referenced decision, the district judge down struck the University's rules against discriminatory harassment because the rules were found to be too broad and too vague. ================= law/broadrick-v-oklahoma ================= * Expression -- Vague Regulation -- Broadrick v. Oklahoma, et al. Summary of case law on overly vague regulation of expression. It says a statute is unconstitutionally vague when "men of common intelligence must necessarily guess at its meaning." ================= law/naacp-v-button ================= * Expression -- Overbroad Regulation -- NAACP v. Button, et al. Summary of case law on overly broad regulation of expression. It says "[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." ================= law/pd-of-chicago-v-mosley ================= * Expression -- Content Regulation -- Police Department of Chicago v. Mosley Summary of case law on content-based regulation of expression. It says that "above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." ================= law/rav-v-st-paul.1 ================= * Expression -- Hate Speech -- RAV v. St Paul -- 1 The Supreme Court's _R.A.V. v. City of St. Paul_ decision about hate crimes. The Court overturned St. Paul's Bias-Motivated Crime Ordinance, which prohibits the display of a symbol which one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." By 9-0, the Court said the law as overly broad. By 5-4, the Court said that the law was also unfairly selective because it only tried to protect some groups. Included: summary, majority opinion, 3 concurring opinions. ================= law/young-conservatives-v-sau ================= * Expression -- Offensive -- Young Conservatives v. SAU A UPI story that tells how Stephen F. Austin University originally banned a group's "sexist" flyers, but when challenged, the ban was lifted and a cash settlement was given to the students whose free-speech was violated by the ban. ================= law/cohen-v-california.1 ================= * Expression -- Offensive -- Cohen v. California -- 1 Definition of "fighting words"; why no right not to be offended The definition of fighting words from _Chaplinsky v. New Hampshire_ and then _Cohen v. California_. Also, says quotes the Supreme Court saying that there is no universal right to not hear offensive expression. ================= law/cohen-v-california.2 ================= * Expression -- Offensive -- Cohen v. California -- 2 Netnews article with reference _Cohen v. California_, "in which the court ruled that Cohen's jacket, which stated "Fuck the Draft" was a protected form of free speech, even though he wore it in a county courthouse." ================= law/cohen-v-california.3 ================= * Expression -- Offensive -- Cohen v. California -- 3 Here are excerpts from several Supreme Court decisions inclusing _Cohen v. Calfiornia_. They say that offensive public expression is protected if those offended can "effectively avoid further bombardment of their sensibilities simply by averting their eyes." ================= law/cohen-v-california.4 ================= * Expression -- Regulation of Tone -- Cohen v. California -- 4 A short quote from _Cohen v. California_: "We cannot sanction the view that the constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated." ================= law/quiet-reading ================= * Expression -- Harassment -- Quiet Reading of _Playboy_ Excerpts from a newspaper report that a federal district judge has said that "quiet reading" of a _Playboy_ magazine by a firefighter does not create a sexually harassing atmosphere. [Editorial comment: I think this supports the idea that rather banning "porn" from a general academic computer, it is more appropriate to ban harassment.] ================= library/challenged-materials.ala ================= * Challenged Materials (ALA) An interpretation by the American Library Association of the "Library Bill of Rights". It says in part "The Constitution requires a procedure designed to focus searchingly on challenged expression before it can be suppressed. An adversary hearing is a part of this procedure." ================= faq/netnews.liability ================= * Netnews -- On University Liability for Netnews q: Does a University reduce its likely liability by screening Netnews for offensive articles and newsgroups? a: Not necessarily. By screening articles and newsgroups the ... q: Does a University reduce its likely liability by screening Netnews and the Web for offensive articles, newsgroups, and pages? a: Not necessarily. By screening articles and newsgroups the ... ================= faq/netnews.reading ================= * Netnews -- Policies on What Users Read q: Should my university remove (or restrict) Netnews newsgroups because some people find them offensive? If it doesn't have the resources to carry all newsgroups, how should newsgroups be selected? a: Material should not be restricted just because it is offensive to ... ================= faq/computer-porn ================= * Banning "porn" from university computers q: Should universities create a rule banning "porn" on university computers? a: In my opinion, no. Such a rule would be unnecessary and too broad. ... q: Should universities create a rule banning "porn" on university computers? a: In my opinion, no. Such a rule would be unnecessary and too broad. ... q: Should universities create a rule banning "porn" on university computers? a: In my opinion, no. Such a rule would be unnecessary and too broad. ... ================= filters.email ================= * How Unix users can filter out harassing email by themselves ================= ================= If you have gopher, you can browse the CAF archive with the command gopher gopher.eff.org These document(s) are also available by anonymous ftp (the preferred method) and by email. To get the file(s) via ftp, do an anonymous ftp to ftp.eff.org, and then: cd /pub/CAF/academic get speech_codes.aaup cd /pub/CAF/law get uwm-post-v-u-of-wisconsin cd /pub/CAF/law get doe-v-u-of-michigan cd /pub/CAF/law get broadrick-v-oklahoma cd /pub/CAF/law get naacp-v-button cd /pub/CAF/law get pd-of-chicago-v-mosley cd /pub/CAF/law get rav-v-st-paul.1 cd /pub/CAF/law get young-conservatives-v-sau cd /pub/CAF/law get cohen-v-california.1 cd /pub/CAF/law get cohen-v-california.2 cd /pub/CAF/law get cohen-v-california.3 cd /pub/CAF/law get cohen-v-california.4 cd /pub/CAF/law get quiet-reading cd /pub/CAF/library get challenged-materials.ala cd /pub/CAF/faq get netnews.liability cd /pub/CAF/faq get netnews.reading cd /pub/CAF/faq get computer-porn cd /pub/CAF get filters.email To get the file(s) by email, send email to ftpmail@decwrl.dec.com Include the line(s): connect ftp.eff.org cd /pub/CAF/academic get speech_codes.aaup cd /pub/CAF/law get uwm-post-v-u-of-wisconsin cd /pub/CAF/law get doe-v-u-of-michigan cd /pub/CAF/law get broadrick-v-oklahoma cd /pub/CAF/law get naacp-v-button cd /pub/CAF/law get pd-of-chicago-v-mosley cd /pub/CAF/law get rav-v-st-paul.1 cd /pub/CAF/law get young-conservatives-v-sau cd /pub/CAF/law get cohen-v-california.1 cd /pub/CAF/law get cohen-v-california.2 cd /pub/CAF/law get cohen-v-california.3 cd /pub/CAF/law get cohen-v-california.4 cd /pub/CAF/law get quiet-reading cd /pub/CAF/library get challenged-materials.ala cd /pub/CAF/faq get netnews.liability cd /pub/CAF/faq get netnews.reading cd /pub/CAF/faq get computer-porn cd /pub/CAF get filters.email