From: kadie@eff.org (Carl M. Kadie)
Subject: Display of nudes
Originator: kadie@eff.org
Organization: The Electronic Frontier Foundation
Date: Fri, 9 Oct 1992 01:00:21 GMT

Question [inspired by an email message]:

What should sys admins do about nude pictures and displays of nude
pictures in public terminal rooms? Is a special rule banning such
pictures and/or displays needed?

Tenative Answer: 

The problem is not the pictures themselves, but rather their display.
By way of analogy, your library likely contains thousands of nude
photos (many academic libraries, for example, subscribe to _Playboy_).
The existence of these pictures on university property is not
harassment because no one is compelled to keep looking at the
pictures.

If that same _Playboy_ pictures, however, were *displayed* in a
university office or lab where employees or students must work, the
person displaying the picture might be guilty of sexually harassing a
person in the office or lab. Likewise the *display* of nude pictures
in a public terminal room (or university office) might be found to be
sexual harassment.

So what should a sys admin do? Your university almost certainly has a
written policy on sexual harassment, that policy almost certainly
details the sexual harassment enforcment procedure. It is very
unlikely that an ordinary university department or staff person is
authoritized by the school to enforced the sexual harassment policy
(by, for example, expelling students from the computer system or by
searching for *.gif files).

You can, however:

 1) Find out if your university's "sexual harassment" officer thinks
    that public display of nudes is, in more situations, sexual
    harassment. If so, post notices that public display of sexual
    material is *likely* a violation of the school's sexual harassment
    policy. Quote the policy and the opinion of the university's
    "sexual harassment" officer.

  2) If anyone engages in what appears to be sexual harassment,
       * warn them informally (at your discretion)
       * charge them with sexual harassment (or tell the harassed
         person how to charge them) following your schools's sexual
         harassment procedure.

Note you are not creating a new rule; rather you are helping to
explain the University's existing rule. This is important because it
is very difficult to create and enforce a good sexual harassment rule.

For example, the Computer Science department at the University of
Texas at Austin forbids:

    "[...] displaying materials that are unsuitable for public display."

This rule is almost certainly unconstitutionally vague. The
alternative is a nonrule rule. For example, a draft policy for
University Of Kentucky, Dept. of Math Sciences, says:

   "You are reminded that the University does have policies against
    racism, sexism, and sexual harassment; if necessary, you may
    direct your problems to the appropriate University office."

- Carl

ANNOTATED REFERENCES

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

=================
policies/cs.utexas.edu
=================
Computer Use Policy of the Department of Computer Science at the
University of Texas.
(Critiqued)

=================
policies/cs.utexas.edu.critique
=================
Critique of Computer Use Policy of the Department of Computer Science
at the University of Texas

Summary: The policy is better than most but 1) due process procedures
should be detailed, 2) privacy should be better protected, and 3)
unconstitutional speech restrictions should not be imposed.

=================
policies/engr.uky.edu
=================
An unofficial, draft of a "Student Access and Use Policy"
critiqued

=================
policies/engr.uky.edu.critique
=================
A critique of an unofficial, draft of a "Student Access and Use
Policy" including a discussion of requiring users to register their
mailing lists and restricting students from the computer.

=================
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?

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

=================
faq/netnews.reading
=================
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?

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

These document(s) are 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/policies/cs.utexas.edu
  pub/academic/policies/cs.utexas.edu.critique
  pub/academic/policies/engr.uky.edu
  pub/academic/policies/engr.uky.edu.critique
  pub/academic/faq/censorship-and-harassment
  pub/academic/law/uwm-post-v-u-of-wisconsin
  pub/academic/law/doe-v-u-of-michigan
  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

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/policies cs.utexas.edu
send acad-freedom/policies cs.utexas.edu.critique
send acad-freedom/policies engr.uky.edu
send acad-freedom/policies engr.uky.edu.critique
send acad-freedom/faq censorship-and-harassment
send acad-freedom/law uwm-post-v-u-of-wisconsin
send acad-freedom/law doe-v-u-of-michigan
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
-- 
Carl Kadie -- I do not represent EFF; this is just me.
 =kadie@eff.org, kadie@cs.uiuc.edu =