From: kadie@eff.org (Carl M. Kadie)
Subject: Re: Cornell changes computer speech policy
Originator: kadie@eff.org
Organization: The Electronic Frontier Foundation
Date: Thu, 28 Jan 1993 23:01:50 GMT

The Cornell policy seems to define harassment as access to material
that would offend someone. Such a definition, of course, could be used
to justify almost any censorship.

Here is a FAQ on censorship and harassment.

- Carl

=============== ftp.eff.org:pub/academic/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. The 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.
============================

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.)

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

=================
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
...

=================
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
...

=================
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 (192.88.144.4), and get file(s):

  pub/academic/law/uwm-post-v-u-of-wisconsin
  pub/academic/law/doe-v-u-of-michigan
  pub/academic/law/rav-v-st-paul.1
  pub/academic/law/young-conservatives-v-sau
  pub/academic/law/cohen-v-california.1
  pub/academic/law/cohen-v-california.2
  pub/academic/law/cohen-v-california.3
  pub/academic/faq/netnews.liability
  pub/academic/faq/netnews.reading
  pub/academic/filters.email

To get the file(s) 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 uwm-post-v-u-of-wisconsin
send acad-freedom/law doe-v-u-of-michigan
send acad-freedom/law rav-v-st-paul.1
send acad-freedom/law young-conservatives-v-sau
send acad-freedom/law cohen-v-california.1
send acad-freedom/law cohen-v-california.2
send acad-freedom/law cohen-v-california.3
send acad-freedom/faq netnews.liability
send acad-freedom/faq netnews.reading
send acad-freedom filters.email



-- 
Carl Kadie -- I do not represent EFF; this is just me.
 =kadie@eff.org, kadie@cs.uiuc.edu =
Newsgroups: alt.censorship,alt.feminism