As a mere political scientist, I’m leery of going head to head with Eugene Volokh on the law, but I’m going to throw in my tuppence worth on his recent post on Eric Rasmusen. Even if I’m wrong, I think there’s a useful argument to be had.
The issue: Eric Rasmusen, a professor at Indiana University, has apparently been asked by the University to remove certain material from his blog, which was hosted on the university servers. Rasmusen had put up a (to my mind, and very likely to Eugene’s) offensive post arguing that gay men should not be allowed to teach children, because they
like boys and are generally promiscuous. They should not be given the opportunity to satisfy their desires.
Eugene, while continuing to disagree with the substance of Rasmusen’s comments, sees this as an attack on First Amendment principles, arguing that the university has set up a ‘designated public forum’ and can’t discriminate between different viewpoints and opinions in deciding who has access to that forum. He cites to a Supreme Court case, where the University of Virginia was told that it can’t withhold money from some college newspapers because of religious content, while granting it to others.
First off, I’m not at all sure that Indiana University has set up a designated public forum in any meaningful sense of the word. The University’s 1999 rules on ‘Computer Users’ Privileges and Responsibilities’ state that
Use of IU computing resources and network capacity is for purposes related to the University’s mission of education, research and public service. All classes of computer service user may use computing resources and network capacity only for purposes related to their studies, their instruction, the discharge of their duties as employees, their official business with the University, and their other University-sanctioned activities.
These rules also allow computer system administrators to remove information which is
inappropriate, because it is unrelated to or is inconsistent with the mission of the University, involves the use of obscene, bigoted, or abusive material on IU resources, or is otherwise not in compliance with the legal and ethical responsibilities listed in the section, ‘Responsibilities of the User.’
This is rather different, as I see it, than an university policy that directly favours some newspapers while refusing to fund others. It seems to me that pre-existing University policy is that no-one should be using University servers to host a weblog that isn’t directly related to their work, let alone one that involves ‘bigoted or abusive material.’
Second, and here I’m much less sure of my ground, the Communications Decency Act provides a specific safe harbor for this sort of thing. ‘Providers or users of an interactive computer service’ won’t be held liable for
any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.
Now it may be that a publicly funded university can’t take advantage of this safe harbor – but it also may be that it can. It seems to me at least to be an arguable point.
More generally, this seems like a non-issue to me. If Rasmusen had been told to take down material that he hosted on his private ISP, it would seem to me to be a pretty clear breach of freedom of speech. But instead, he’s been asked to take down material from a University server, material which seems on the face of it to have been posted in clear breach of university guidelines which state that server space should only be used for specific, authorized purposes. I just can’t see why the University should be expected to have a positive obligation to host whatever Rasmusen wants to argue. Furthermore, it hasn’t had much of an obvious effect on Rasmusen’s ability to speak his mind; he’s simply upped and moved shop to Geocities
Update: Eugene replies and says that the CDA Safe Harbor is inapplicable. Fair enough. But he also goes on to argue that
under the longstanding tradition of American universities, opining on a wide range of public issues is part of university professors’ “research” and “public service” mission. That’s why professors regularly write op-eds, talk to reporters, appear on radio and TV shows, and otherwise express their views. So the University’s hosting services do create a designated public forum—a program that facilitates the professors’ own speech (much as the funding program in Rosenberger facilitated student speech.)
This seems to me to be a stretch. First, the relevant section of the Indiana University rules only states the ‘public service’ bit as part of a general preamble – it then goes on to specify that users can use computer resources only for purposes related to their “studies, their instruction, the discharge of their duties as employees, their official business with the University, and their other University-sanctioned activities.” Even if you think that opining on a wide range of issues is part of a university professor’s service mission, it’s not part of her duties – it’s not something she’s required to do as part of her job description.
Furthermore, just because I’m a professor doesn’t mean that every opinion I spout is part of my public service mission. There’s still a big difference between the (varied) matters that I can bring my scholarly expertise to bear on, and those matters where I’m merely spouting off unexamined opinions like everyone else. And the latter don’t form part of my scholarly mission. Rasmusen’s views on gay men are the latter rather than the former: he admits that he has no evidence and that he’s going on what ‘everyone knows.’ It’s hard to claim that this is part of any public service mission.
Eugene is on more solid ground when he argues (as he has in a personal email) that the university is probably discriminating against some viewpoints, and not others, in its enforcement of policy. If this is what’s happening, Rasmusen’s First Amendment rights are likely being breached. But it’s not yet clear that this is what is happening – there isn’t enough evidence to say with any degree of certainty whether there’s a real pattern of discrimination in the university’s implementation of its policy.