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”:http://volokh.com/2003_08_31_volokh_archive.html#106278869634914297. 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
bq. 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”:http://www.indiana.edu/~uitspubs/iu001/iu001.pdf on ‘Computer Users’ Privileges and Responsibilities’ state that
bq. 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
bq. 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”:http://www4.law.cornell.edu/uscode/47/230.html for this sort of thing. ‘Providers or users of an interactive computer service’ won’t be held liable for
bq. 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”:http://www.geocities.com/erasmusen/log.htm
Update: Eugene “replies”:http://volokh.com/2003_08_31_volokh_archive.html#106279389783383565 and says that the CDA Safe Harbor is inapplicable. Fair enough. But he also goes on to argue that
bq. 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.
{ 24 comments }
A Virginia Gentleman 09.05.03 at 9:04 pm
Though I can certainly see some distinctions between this case and the Virginia case, I’m not sure that your rationale successfully makes use of those distinctions.
Would you argue that the Virginia case was improperly decided or would you argue that I am missing a meaningful difference between the two cases?
apu 09.05.03 at 9:18 pm
The way you characterize the actions of IU makes some assumptions about the policy. Regarding whether the University’s internet service is a public forum, you imply that Rasmussen’s blog was contrary to IU’s written policy. That may be, but what really matters is the practice. Based on what I’ve seen at most large universities, I bet his was not the only blog not focused solely on his academic work. If I’m right, but his blog was the only one targeted by IU for removal, IU’s got a problem. And, even if that law you cite provides some safe haven, that only means IU won’t be liable for damages, not that it’s constitutional. Besides, universities shouldn’t be doing this. Rasmussen is a fool, and the school just gives him more press (and a legitimate grievance) by fighting him on this.
Henry 09.05.03 at 9:21 pm
Seems to me that the difference is quite clear. In the Virginia case, the university adopted a pro-active policy of providing funding to certain newspapers, and not to others. Therefore, they were directly promoting certain kinds of free speech, and refusing to promote others, creating a public forum that was skewed. In the Rasmusen case, the university has a pre-existing policy that seemingly forbids _all_ uses of server space that aren’t directly related to the user’s teaching, research etc. In other words, it doesn’t seem to me that you can argue that the university has created a public forum at all.Even still, you could perhaps construct an argument that Rasmusen’s rights were being violated by inconsistent enforcement – arguing that the university is going to remove some weblogs, but not others based on their content – but there doesn’t seem to me to be any _prima facie_ evidence that this is happening.
Henry 09.05.03 at 9:23 pm
Apu – see my remarks above for a sort-of-anticipatory-reply to your main argument.
alkali 09.05.03 at 9:48 pm
Advantage: Volokh.
1. Apu is right that practice matters most; the further practice differs from the written policy, the less that written policy matters. IU seems to allow users to publish on its web server for (at least) any legal noncommercial purpose. Accordingly, even assuming Rasmussen violated the written policy, it matters not a whit.
2. The safe harbor does not apply to a state university, full stop.
jam 09.05.03 at 10:07 pm
As a matter of law, Henry may well be right. There was a case at George Mason University three or four years ago (which one of Eugene’s co-Conspirators from that university may remember the details) where a faculty member deliberately put up an offensive, but probably not obscene, website to challenge on first amendment grounds a similar policy that had been dictated to GMU (as to all VA state universities) by the State Legislature. The university took it down and he sued. And lost.
This seems to me (though I am not a lawyer etc.) to be more applicable (is “on point” the phrase?) than the UVA student newspaper case.
aloysius 09.05.03 at 11:57 pm
Whether or not other non-work-related blogs or sites are left up, IU quite clearly states that it reserves the right to remove ‘obscene, bigoted, or abusive’ material from its servers. Indiana University includes sexual orientation in its non-discrimination policy, so it seems pretty clear Rasmusen’s remarks officially qualify as bigoted, and I think there’s a solid case to be made for abusive, too. It seems like an open-and-shut case. The University set up rules for its computing resources. Rasmusen broke them. Surely IU can set its own acceptable-use policies? Rasmusen has the right to say whatever he wants, but he does not have the right to do it with IU equipment.
Joshua Claybourn 09.06.03 at 12:22 am
As a recent graduate of Indiana University, I can assure you that there is indeed an uneven enforcement of such rules. The University regularly discriminates against conservative viewpoints and not others. Indeed, novels have been written on the subject.
alkali 09.06.03 at 12:26 am
The GMU lawsuit involved sexually explicit photos on a professor’s website, and there was no practice of permitting such photos notwithstanding the state law. There is ample precedent holding that at least some regulation of sexually explicit communication does not violate the First Amendment.
Regulation of “bigoted” speech is no more permissible than regulation of “Democratic” speech. Nor does the content at issue amount to a threat or harassment which would not be protected by the First Amendment.
eric 09.06.03 at 4:12 am
heh. IU can do what it wants with its servers. You can bet that if Rasmussen had put something up like “Send all the niggers back to Africa” it would have been yanked as soon as somebody noticed it.
Whether or not IU’s rules get enforced consistently doesn’t matter either.
Joshua Claybourn 09.06.03 at 6:06 am
No, eric, all of that matters. See Rosenberger v. University of Virginia and Widmar v. Vincent.
john 09.06.03 at 7:28 am
As a fellow IU alumnus I would have to disagree with Joshua. I feel that no such political stance has been taken by IU to single out conservates/liberals in this or any other case. Politics should bear no place in this situation. I think that the school is against possible pending legal action and not against a individual’s conservative thought. I believe in Prof. Rasmusen’s right to free speech but I disagree with his use of the IU’s resources to publicly voice his opinion as a representative of the school. I feel that the school has a right to limit and control personal uses of it webservers in order to protect itself from any serious future legal action. Could you imagine if it did not do this? IU’s potential to be sued by a myriad number of students, staff, and parents year after year who feel that they have received a poor treatment from a teacher who is openly critical of gay people would be staggering. It would be far easier for IU to ask him to remove the webblog and face one legal action then multiple legal actions year after year to allow Professor Rasmusen to speak his mind. As for my mind, I think the professor suffers from severe xenophobia and should see people for what they are. Just people.
novalis 09.06.03 at 11:01 am
It would be far easier for IU to ask him to remove the webblog and face one legal action then multiple legal actions year after year to allow Professor Rasmusen to speak his mind.
Ah, the only reasonable standard for policy: what is easiest.
raj 09.06.03 at 2:56 pm
I am somewhat familiar with Rasmussen’s comment, at least in part because it was discussed on Iain Murray’s blog a few days ago. I know nothing about Rasmussen, but the fact is that he should have been embarrassed about the post. He admitted that he had no evidence for his conclusion. He stated “Why do I believe it, then? I actually think that it’s in the category of “what everyone knows”, a category useful as a starting point for discussions if everybody really does believe it” (he moved his blog to http://www.geocities.com/erasmusen/log1.htm) Accordingly, it is clear that his conclusion was based just on his anti-gay bigotry. “What everyone knows”? That is supposed to be evidence? Frankly, he should be embarrassed by that. As far as I’m concerned, the fact that he is apparently not embarrassed puts his academic credentials–such as they might be–in great question.
That said, a couple of points. First, as is not uncommon, Volokh overstates the case. Government can place reasonable time, place and manner restrictions on speech, as long as the restrictions are content-neutral. I could not determine from Rasmussen’s site on the university servers whether his academic credentials suggested that he was supposed to have any expertise in connection with gay issues or whether his teaching had anything related to gay issues. (Frankly, I found it odd that I couldn’t find out anything about his academic credentials.) Based on that, it is far from clear that Rasmussen’s comment that it comported with the University’s rules, so they were well within their rights to have his post removed. As I noted above, he moved it to a private server.
One might seriously ask whether the University also removed other material with content that was as dumb as Rasmussen’s from its server. That might go to the question of whether the university was applying its policy in a content neutral manner. Of course, other professors might not be so dumb as to post such idiotic content on university servers.
Dan the Man 09.06.03 at 3:15 pm
>One might seriously ask whether the University also removed other
>material with content that was as dumb as Rasmussen’s from its
>server.
Since no one has yet given even one example that IU has one thing
on its website which is as dumb as what Rasmussen had that’s a pretty
low threshold.
>That might go to the question of whether the university was applying
>its policy in a content neutral manner. Of course, other professors
>might not be so dumb as to post such idiotic content on university
>servers.
Change “other professors” to “students or other professors” and it
would still be true.
raj 09.06.03 at 7:58 pm
One other issue regarding Rasmussen. Rasmussen’s obvious anti-gay bigotry clearly raises the issue of whether any out gay student would really believe that he or she would get a fair grade from him.
Breaker 09.06.03 at 11:59 pm
My comments are over here.
garfield 09.07.03 at 12:28 am
Indiana University does, indeed, host other “dumb” or radical websites on its servers. It seems to me that if the University would permit the GLBT office; OUT, the GLBT Student Union; the Christian Student Fellowship; the Citizens’ Alliance for the Legalization of Marijuana; the College Democrats; the College Republicans; and Headspace (a BDSM organization); to have webspace on a personal server, I can’t really find that it is limiting the use of its webspace to university-related activities.
raj 09.07.03 at 12:52 pm
Poor Garfield. It apparently does not understand that hosting of web sites on university servers of web sites related to university recognized organizations is not in any way related to hosting of web pages on which employees bloviate over issues that may not be related to their academic bloviating.
Perhaps shortly Garfield will be opining that the university should allow its servers to host pages from Holocaust-denying philosophy professors, from creationist history professors, or from racist physics professors, regarding, of course, their Holocaust, creationism or racism. (Regarding racist physics professors, I am referring of course to William Shockley–a brilliant physicist, but a dumb racist). Query why the university should allow its servers to be used for any bloviating that its employees may want to engage in. At no cost to them, of course.
raj 09.07.03 at 12:58 pm
Joshua Claybourn bloviates
“As a recent graduate of Indiana University, I can assure you that there is indeed an uneven enforcement of such rules. The University regularly discriminates against conservative viewpoints and not others. Indeed, novels have been written on the subject”
I’m sure that novels have been written on the subject.
But it is rarely the case that any server removes material unless someone complains about it. Your assertion that there is an uneven enforcement of “the rules” is somewhat lame unless you can provide at least a little evidence that there has been an even numbers of complaints.
Typical whining from conservatives.
In other words, prove it.
john 09.07.03 at 4:04 pm
Ah, the only reasonable standard for policy: what is easiest.
-by novalis
In regards to your reply I think you failed to realize the importance of “what is easiest” and how it applies to life. For example, if your hungry you run to Micky D’s and get supersized #3 (or that tasty McRib,mmmmm!) instead of tearing up your back yard and creating a replication of Old Mac’s farm itself. Now if you apply this example to everything around and you being to realize that your life is nothing but “what is easiest”. I would guess you either own a home or rent a home/apartment. Did you build said home or apartment? More than likely, no. Why do you buy or rent a home/apartment? Because it is far “easier” to do than build it yourself. Now if you look to our legal system it is the same standard policy but with a few minor changes. Most people obey laws because they feel that it is far easier to live in a home/apartment much like you and I than to live in “jail”. A “jail” is not a easy place to live your life. In some circumstances it is far easier for our legal system to impose a monetary fine on an individual or organization because the punishment is more fit or because the lawbreaker can’t really fit into a jail. It would be really hard to put IU in jail. This “easiest” thing is kind of like the “Church of the Sub-Genius” only tweaked a bit, no Bob to worship, and on a grander scale. Now understanding all of this leaves us with one question. Why would IU face one possible lawsuit as opposed to many possible lawsuits? Because it is easier. And for Beaker, Indiana University hosts a bondage, discipline and sado-masochism site because 1) Indiana University has studied sexual behavior in human being for over fifty years and this is some people’s sexual behavior. This course of study even has it own institute called the Kinsey Institute which has published a report called the Kinsey Report explaining all of its findings. If you don’t want to read the book wait for the movie starring Liam Nielson about Dr. Kinsey’s life. I’m serious. They are filming it now. 2). The BDSM (or whatever it is called) doesn’t post web blogs on the IU webserver saying that people who don’t take a whip to their ass shouldn’t be teacher or doctor because those people wouldn’t allow kids to properly express their sexuality. I haven’t checked their personal pages but I am pretty assured that they don’t do this.
Thomas 09.08.03 at 1:34 am
Yet again the left overlooks principle in the urge to suppress speech it doesn’t like.
But John Ashcroft is the one we should really be afraid of…
Bruce Garrett 09.09.03 at 7:51 pm
And you thought liberals were responsible for the declining standards of American higher education. Here’s a business professor saying that homosexuals shouldn’t be teachers because they’d molest students, except he doesn’t have any evidence that they’d be more likely to molest students, and what is more, even if he couldn’t find any such evidence, that wouldn’t mean it wasn’t true.
Swell. Really swell. I have a business plan I’d like you to invest in. I don’t have any evidence that my product has a market. Actually, I haven’t really tried to figure out whether or not my product has a market. But even if I do the research, and I still can’t find any evidence that my product has a market, that doesn’t mean my product doesn’t have a market. Now fork over some dough.
Makes you want to look the jackass that put this crackpot’s diploma in his hands in the eye and ask them what the hell they were thinking. It isn’t just the Gay and Lesbian students of this institution that have to worry about what this guy is teaching. The business students with his name in their transcripts need to be a little nervous too I would think. Oh…and the dweebs that recommended this guy for a job.
I agree that restrictions on the use of computer resources need to be enforced uniformly. But it’s staringly obvious that this nutcase is way over the line with regards to the policy I have to assume he signed, before he got his hands on an account. Yet here he is treating the rules as if they don’t apply to him. Can’t you just picture this man lecturing students on business ethics? I sure can.
So let’s review: His analytical skills stink. He not only cannot seem to distinguish between fact and belief, he seems to think it doesn’t matter which is which. His sense of personal ethics and morality is shiftless. He demeans and degrades some students at his institution, and sets a bad example for all of them. And he’s a degreed university professor. Nice. Next time you hear a conservative bellyaching that liberals have ruined higher education in America, laugh in their face.
C. Bond 09.24.03 at 2:48 am
As a faculty member at not only IU, but the Kelley School of Business along (I’m sorry to say) with Rasmusen, and as a Libertarian, I will say this. He has every right to put up whatever he wants and make an ass of himself (and if his is a “conservative opinion” then woe to the conservatives). However, what was not covered well was the fact that he also went after Hindus–and not only are there a great many students from India, but Rasmusen also has a lot of colleagues who fall into that category.
I fail to see what possible motivation he might have had for this, other than attention or narcissism. But his motivations aren’t relevant.
He has, by doing this, called into serious question his own objectivity. It is now the university’s responsibility to scrutinize every grade he gives and ensure that despite his beliefs, they do not pollute his professional duties.
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