By Dan Kennedy • The press, politics, technology, culture and other passions

Online speech, offline punishment

Over the past year or so, students have become increasingly savvy about the downside of Facebook and MySpace. In talking with my students and in reading their stories for journalism classes, it’s clear that they know if they post photos of themselves drunk and/or in compromising positions, potential employers will somehow find out about it.

What they may not know is that college and university officials themselves may be cruising around Facebook — and going after students who’ve posted content they don’t like. In the current Phoenix, Greg Lukianoff and Will Creeley report that students have been singled out and punished for posting content that is obnoxious and racially insensitive, but that nevertheless is protected by the First Amendment. They write:

Contrary to popular misconceptions, the speech codes, censorship, and double standards of the culture-wars heyday of the ’80s and ’90s are alive and kicking, and they are now colliding with the latest explosion of communication technology. Sites like Facebook and MySpace are becoming the largest battleground yet for student free speech. Whatever campus administrators’ intentions (and they are often mixed), students need to know that online jokes, photos, and comments can get them in hot water, no matter how effusively their schools claim to respect free speech. The long arm of campus officialdom is reaching far beyond the bounds of its buildings and grounds and into the shadowy realm of cyberspace.

Lukianoff is the president of the Foundation for Individual Rights in Education (FIRE), and Creeley is a top official with FIRE.


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15 Comments

  1. mike_b1

    Dan, university admission is a privilege, not a right.Universities are responsible for creating an atmosphere that is conducive to learning. Some 20-year-old’s racist screeds may be protected by the First Amendment, but I fail to see why a school couldn’t (or shouldn’t) see fit to toss out said student if it didn’t like what they say.(Btw, Blogger, in a word, blows.)

  2. Dan Kennedy

    Mike: You’re right about Blogger, but is there something specific going on? I am almost certainly going to switch to WordPress after the semester, when I’ve got more time.

  3. mike_b1

    Re Blogger, the problems are threefold:1. Failure to recognize user name and password. I often have to enter both three or more times in order for Blogger to accept them.2. Time outs/lost text. When I attempt to log in, if it doesn’t accept my username/password, the message screen “reboots” and I lose my comment text.3. Finnicky word verification. The characters often run together and the pseudo-itals can make distinguishing them difficult (is it an “i”? or a “j”?). And once again, if the word verification isn’t accepted, there goes my comment text.

  4. man who thinks colleges are the last bastion of hypocrisy

    Mike_b1 – it’s not that the colleges should or should not have the right to codify and enforce speech codes. At least not the private colleges.The issue, however, is that colleges are frequently marketing themselves as bastions of free thought and ideals…when in reality they are anything but. In other words, the issue is the hypocrisy, not the speech codes themselves.If every college with such codes actually marketed themselves as such, they’d probably see a massive shift in their student totals over, say, five to ten years. Why go to a college that you KNOW is always playing big brother on you? You could live at home and only have to deal with that crap from your parents.And, following the money, I think that’s where this will ultimately end up. Some savvy student that gets nailed by a speech code and/or lawyer will make a case that a private college defrauded said student with promises of “freedom”. When the price for entry is $40k a year and rising fast, I don’t think that an unreasonable argument. Shouldn’t you get what you pay for?

  5. mike_b1

    I leave it to other people to worry about hypocrisy. I’m much more interested in the law. If a college let students get away with hate speech, for example, they could — and would — be sued under various anti-harrassment statutes. So it puts the institution in an impossible situation.I’m not advocating that your right to call me a nigger be somehow infringed. I’m arguing that you shouldn’t be allowed to do it in my dorm room.(And can we once and for all drop that myth that higher education and high fees necessarily go hand in hand? According to CNN/Money last October: “The average cost of a four-year private college jumped to $30,367 this school year, the first time the average has broken the $30,000 mark. … The average tuition at four-year public colleges and universities is $5,836 for the 2006-07 school year.” Add $10,000 for room and board and the average public institution is still way under the number you threw out there.)

  6. SolShine7

    Interesting.

  7. Anonymous

    Dan, university admission is a privilege, not a right……presumably suggesting that colleges can regulate admission or continued attendance based on a student’s or prospective student’s speech.It depends. If you are referring to a private institution, you are largely correct, although, if the institution receives federal funds, the government can regulate funding based on how the “privilege” is allocated, which regulation has to follow constitutional muster (I’m referring to the 1st amendment’s free speech guarantee).If you are referring to a state institution, the ability of the institution to regulate speech is far more limited, regardless of the extent to which the state actually provides funding to the institution. I haven’t done an exhaustive analysis, but it is my impression that more than a few “speech codes” imposed by state universities have been thrown out or at least been very severely limited in application.–raj

  8. Dan Kennedy

    But Mike … we’re not talking about doing it in your dorm room. We’re talking about doing it in an Internet forum with zero connection to the university. I don’t think there’s any question that a public college or university would lose if it were sued for attempting to enforce its speech code in such a manner. Possibly a private institution might lose, too.

  9. mike_b1

    Not if the student posted the message via a computer that was located on school grounds, Dan. Cyberspace starts in a physical space.

  10. Dan Kennedy

    Mike: That is really pushing it. Shall we make a distinction between university-owned computers and privately owned computers? Of course, even private computers are jacked in to the university’s network, right? Essentially, you are saying that students have no zone of privacy whatsoever unless they leave campus … never mind that the campus is where they live.

  11. mike_b1

    Raj is right; many university speech codes have been knocked down (Michigan and Wisconsin are two). So what schools do now is codify speech under anti-harrassment rules.Dan, pushing it? I don’t think so. You have to consider just how creative good lawyers can be. Think about how KKK rallies are often confined to specific physical spaces. In short, it’s OK for you, Mr. Grandmaster, to make your hate speech. You just have to do it in a place where it doesn’t obstruct the rest of the country from going about its business. Now transpose that on a school. If a student is engaging in hate speech, it doesn’t matter whether it is spoken or written (Internet, newspaper, flyer, etc.). So I would argue that a creative lawyer could say that if it’s being generated from school grounds (e.g., dorm room), or via school-owned media (e.g., wireless Internet service), that’s in violation of school rules governing behavior.Now you seem to think that it’s OK for a school to have to sit there and fend off lawsuits. I see that as a complete waste of energy and resources. The Framers didn’t put academia in charge of defending the First Amendment.

  12. Anonymous

    Pretty Ironic for us to be lectured about the First Amendment from a thin-skinned hypocrite like mike. You love Free Speech when you agree with it.You love your free speech when you use it to smear Arroyo but you hide in cowardice when you are asked point blank a clear Yes-and-No Question in favor of being gracious and fair towards the guy for once at least.Freedom of speech isn’t so great then, is it?What is it your BUSINESS if someone advocates for Martin Luther King or the KKK or Elvis or the Pope? It’s none of your business. That’s a no-bs explanation of the First Amendment for yah.You agree with that speech? Fine, good fo you.You don’t agree? Who cares. Shut up or argue against. You choose to censor and shame.What’s it to you if someone shouts a slur you don’t like. Let them make a fool of themselves. But if they come into YOUR (legal) space, in a hostile manner and direct this slur to you, then that is assault. That is a free speech that has crossed the line. You are entitled to dictate what goes on in your ‘castle.’Even then, you can’t PROVOKE others into going into such assault mode and claim to be a victim. You can’t assault others and insult them and then claim what they said in response was “not good free speech.”The best way to make bad speech go away is to prove them wrong, make them look like fools and give them no ammunition to go after you for any reason that could be spun into looking legit.Civil rights laws have been fought for and WON a long time ago. What undermines them, is constant whining, victim mentality and erroneous reading of the Constitution and the laws established.We’re talking about First Amendment like it’s the best excuse to take refuge in. This is ridiculous. What happened to civility, good manners and proper upbringing by parents?How about blaming parents for bringing up kids that see no harm in saying the wrong things, racist things or destroying other people’s property for fun and filming it for youtube, or disrepecting professors, established school rules of conduct and dress and behavior and claiming first amendment protection.If you don’t like the rules, get OUT. Go to Bob Jones univ or Liberty Univ or some other crackpot establishement that allows that rowdy behavior.The problem is : no one can tell little prince or princess that they are worng, that they can’t do ‘that’ or that they are less than perfect.When I first saw the post, all I could do is shake my head: here is another wishywashy attempt to shelter kids. I can’t believe we are entertaining even remotely a BLANKET protection for ANYTHING and everyting that is posted online and pretend that in no way can it be unwelcome by a school or employer. If that isn’t arrogance and delusion, I don’t know what is.Didn’t anyone read that NY mag “Praising Kids too much” piece? Didn’t anyone read this today?Take the example of those racist Uconn students who posted pictures deriding African-Americans. It is their freedom to do so. It isn’t illegal to be stupid and racist. The shcool and potential employers though are totally in the right to refuse them admission or employement. To blame those schools or employers is just as wrong as denying first speech. How could ANYONE think they’d make great lawyers and prosecutors or LAW enforcement officers? No sane person would. It’s the stuff that makes LA riots possible and introduces bad apples that will give a bad name to the 99% of great selfless officers and prosecutors out there.So let’s be clear here. Freedom comes in many shapes and flavors and not always two parties’ freedoms are compatible. That’s why we have courts to help decide.One: Students AND faculty have the right to say and do any kind of speech so long it isn’t breaking the law, like clear deliberate defamation you KNOW it is wrong and done with malice, or divulging sensitive gov info (some -newspapers- could debate that too) or leads to direct physical injury or assault.On the other hand, employers and schools can enforce openly or implicitly ANY code they see fit to run their organization, even if it is not a popular rule. If they don’t like your pink socks or yellow shoes or offensive teeshirt or smoking habit or even worse drug habit, they don’t have to accept you nor keep you. Tough.That’s why we have these entitlement kids now who think they can rule the world, they can do anything they want. They have a weird perception of what is fun and partying and taking it to the limits is “within their right.” Allowing friends to bingedrink is “ok. It is part of growing up and being young.””Riots are fun and part of the fan experience,” some idiots will say.On and on…Even people getting hurt and killed doesn’t stop this idiotic attitude.There was an example of this moronic caller on RKO, a teacher presumably who was stupid to admit that his girlfreind, a Harvard-educated lawyer made regular trips to Vegas to strip to finance school.Now I am not a prude and if you want to work in such avenues, fine by me. I don’t care and I don’t think it is the end of the world, but this woman KNEW she had to keep it a secret from school and her employer, otherwise she would have been booted from one or both, ending up probably with no degree. Maybe she should have kept it from the stupid BF too, by the way.So what, someone here is going to argue that she would have been fine to publicize it and demand to keep her enrollement and job prospect? Anyone who says that is not a realistic.And what about the psychotherapist who used to be a famous stripper in Chinatown who lied about her credentials but was popular with patients? Why didn’t she divulge her past too? Wouldn’t have gotten a shot at the first patient to begin with, would she?It’s amazing that we are not good still at identifying where our freedoms end and where others’ start. Or how to interpret different legal issues and questions without devolving into a confusing soup of bloggerhea.N.

  13. Steve

    Dan and Mike, I have a different take on this, agreeing and disagreeing with both of you. I think a private university certainly has the right to determine who it wishes to associate with, based on published writings. I certainly think its within the bounds of an admission committee to make a Google search part of its decision process, for instance.But if I were a university administrator, I’m not sure I’d like the responsibility of policing *everything* everything that gets posted to the internet under the wrap of a university server. If you starting objecting to one person’s postings, aren’t you then taking responsibility for scrutinizing everything for objectionable content?If you are the proprietor of a blog who administrates comments, don’t you assume responsibility for the posts you allow to be published?(Note: I am not a lawyer, and I don’t know the answer to those last 2 questions.)I’m not sure the university wants to get into that business. After all, we have law professors at some universities who advocate murder, and they are not censured, nor are their universities discredited.

  14. mike_b1

    Did you say something, N.? I fell alseep at “Pretty Ironic.”

  15. Anonymous

    Steve @ 8:11PMI’m a lawyer, but I’m not an expert in this area of the law. But what I have read on law blogs is that blog administrators (such as Dan) would not be held for libel for something that a commenter on his site posts as a comment. An that’s true whether or not he scans the comments for content. The commenter is responsible for the contents of the comment, not the blogmeister. Of course, give the ease with which a comment can be traced (the Internet isn’t really anonymous, it’s fairly easy to trace a comment back to the source computer, and, likely, the person who posted the comment.As I said, I’m not an expert in this area of the law, so I’ll make the usual disclaimer that this is not a legal opinion, yada, yada, yada.Dan is responsible for his posts (on the main page, which is why I continually distinguish between posts–on the main page–and comments elsewhere), and he could be held liable for posts that he himself puts on the main page.–raj

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