Earlier this month, two faculty activists at Chicago State University (CSU) prevailed in the face of a motion to dismiss a lawsuit they had filed in federal court against CSU’s President, Vice President of Labor and Legal Affairs and General Counsel.
The suit claims the CSU officials violated the faculty members’ free speech rights under the First and Fourteenth Amendments when the officials sent the faculty members a “cease and desist” letter demanding they shut down a blog to which they contribute called “CSU Faculty Voice.”
The letter (one of three sent by the University officials) was interpreted by the court as an attempt to enforce both a new University “Cyberbullying Policy” and a “Computer Usage Policy” although CSU claimed the letter does not specifically threaten to enforce those policies against the faculty. The court concluded:
“It is eminently reasonable to read the letter as a demand to shut down the CSU Faculty Voice blog based on
its alleged failure to meet CSU on-line civility standards. It is also eminently reasonable to conclude that those civility standards are the ones memorialized in CSU’s Computer Usage Policy, which requires electronic communications to ‘adhere to the University standards of conduct which prohibit any communication which tends to embarrass or humiliate any member of the community.’ … The same goes for the Cyberbullying Policy, which could be read as prohibiting a series of negative blog posts.”
The Cyberbullying Policy prohibits “deliberate or repeated conduct” that “harasses [or] intimidates an individual … or has the effect of substantially disrupting the individual’s daily life via the use of electronic information and communication devices; [ ] the use of information and communication technologies to support a deliberate, repeated, and hostile course of conduct that is intended to harm others; or [ ] intentional and repeated harm through the use of computers, cell phones, and electronic devices.” It applies to “electronic speech,” including “[e]xpressive conduct” in any form that is conveyed via any means (e.g., tweets, blog postings, and text messages), regardless of whether it is associated with CSU computers.
The “Computer Usage Policy” requires electronic communications, “including websites and blog posts on the university server,” to “adhere to the University standards of conduct which prohibit any communication which tends to embarrass or humiliate any member of the community.”
One interesting technical twist in the opinion revolves around the location of the blog. It is hosted on Google’s blogspot service not on the University’s servers and that led the University to argue that the faculty did not have standing to complain that they were threatened by the two policies.
But the court noted that while the policy states that it “includes” University servers, “it is not explicitly limited to Internet websites and blog posts hosted on CSU’s server.” Given the procedural posture of the case – a motion to dismiss – the court is obligated to accept the plaintiffs factual allegation that the policy could be enforced against the faculty even if the blog were hosted on non-University servers.
In fact, in a footnote the court challenged the credibility of the University’s position, stating:
“With respect to the parties’ arguments about the meaning of the cease and desist letter, the court notes that if the defendants, in fact, have no intention of ever enforcing the Computer Usage or Cyberbullying Policies against the plaintiffs, this case is ripe for settlement discussions.”
Obviously the University would not be able to shut down the website physically but it could, of course, exert other forms of pressure on the faculty. In fact, the law suit, filed on behalf of the faculty by the Foundation for Individual Rights in Education’s Stand Up for Free Speech Litigation Project, comes in the midst of significant conflict over free speech and both faculty and students have been engaged in various forms of protest against University policies.
Recently, student leaders filed a lawsuit against CSU officials for alleged interference in student elections after student leaders complained of corruption and mismanagement, a former Vice President for Finance is suing the University after he was fired for complaining about mismanagement, and a whistleblower at the University won a claim for $3.3 million dollars.