Debate continues about my June 23 post on free speech at SFSU. Today, I want to offer a few thoughts in response to Tish Jennings' argument, posted on GlennFrazier.com, that "Having access to the web via the SFSU is a privilege, not a right and SFSU has the right to regulate the content of its web sites. The first amendment does not protect this speech...." Tish defends this claim by citing the acceptable use policy for the Cal State system, arguing that it has "EXTREMELY rigid regulations regarding content," and concluding that this means that SFSU, as part of that system, "has the authority to cancel any web site they own."

Not so. Let's look at the policy, and do some close reading.

First of all, SFSU policies on acceptable use--which are the same as those for the entire Cal State University system--mostly refer to conduct on the web, not content. You have to respect copyrights and licensing agreements for programs and data, for example. You can't disseminate viruses. You can't plagiarize. You can't hack into the system. You can't use your site as a storefront. And so on.

There is one passage in the policy that deals with content, and it looks like this:

"Any illegal or inappropriate use of 4CNet, or use in support of such activities, is prohibited. Illegal use shall be defined as use which violates state, or federal law. Inappropriate use shall be defined as a violation of the goals, purpose and intended use of the network. This includes, but is not limited to, the following: stalking others, supporting partisan political activities, transmitting or originating any unlawful, fraudulent, defamatory, or obscene communications, or any communications where the message or its transmission or distribution, would constitute or would encourage conduct that is a criminal offense or would give rise to civil liability."

Let's go through these restrictions one by one. Did the GUPS web site stalk anybody? No. That's an easy one.

What about "transmitting or originating any unlawful, fraudulent, defamatory, or obscene communications"? I discussed in my June 23 blog why I think it is not valid to consider a web site to be a "communication." I would add that the language of this policy is very dated, and smells strongly of the type of rhetoric developed by the Communications Decency Act--which did include web sites, and which was found unconstitutional in large part because it was too broad and too unresponsive to the unique nature of the web. The repeal of the CDA effectively gave web content the same legal status as print.

What about transmitting or originating "any communications where the message or its transmission or distribution, would constitute or would encourage conduct that is a criminal offense or would give rise to civil liability"? Again, the GUPS web site was not a communication. If you want to argue that the site encouraged terrorism with its gif and its links, think again. According to Brandenburg v. Ohio, 395 U.S. 444 (1969), individuals can be held responsible for inciting the actions of others only when they directly advocate "imminent lawless action" to those who are likely to commit it. Impassioned political advocacy is not itself incitement, especially when it takes place on a web site (as opposed to face to face communication). As for civil liability--it's the act of removing the site, rather than allowing it to remain, that gives rise to civil liability in this case. State schools that behave in such wantonly partisan ways--censoring this speech while allowing that speech to stand--are just asking to have their socks sued off.

Now for the moment we've all been waiting for.

Did the GUPS website support partisan political activities? Yes indeed it did. Does that mean that the site should be removed? No, it means that the Cal State system has a chilling, morally undesirable, and probably unconstitutional acceptable use policy. Private ISPs can and do use such regulatory language. A private college or university may use such language, though it would effectively eviscerate the character and quality of campus culture if it did so. A government-funded public college or university may not, under any circumstances, limit the content--political or otherwise--of student or faculty expression. It is simply not possible to do so in a non-partisan, non-discriminatory manner. (If anti-Semitic GUPS can't have a website, neither can pro-Israel Hillel.)

Sometimes schools try to limit expression, invoking "hostile environment" policies to ban controversial views in the name of campus "civility." When they do, the results are uniformly disastrous and embarrassing. In the wake of 9/11, for example, Penn State administrators went after a professor whose web site advocated a strong military response to the terrorist attacks. Students decided the opinions expressed on the website offended them, and complained to the administration. And, instead of defending the professor's right to free speech, the Vice Provost for Academic Affairs sent him a letter informing him that his site was "insensitive and perhaps intimidating," with the clear insinuation that the site could cost the professor his job (at Penn State, probably unconstitutionally, "intimidating expression" is grounds for dismissal). What happened? Penn State got its ass kicked. FIRE (the Foundation for Individual Rights in Education) became involved in the case, and shamed Penn State into a ringing endorsement of the First Amendment. The web site was allowed to stand. (For more on the unconstitutionality of using "hostile environment" to regulate expression at state colleges and universities, see civil liberties lawyer Harvey Silverglate's excellent brief).

The episode shows how vulnerable universities become--legally, and public-relationally--when they start playing God. It also clearly affirms that student and faculty web content at public universities comes under the protection of the First Amendment--an affirmation that echoes the language surrounding the repeal of the Communications Decency Act, where the Supreme Court clearly and unambiguously ruled that attempts to regulate "indecent" or "offensive" web content are in violation of the First Amendment, and therefore unconstitutional.

Technicalities of school policy and specific cases aside, I want to ask a philosophical question. Why on earth would anyone want to regulate student and faculty web content? What purpose does that serve, beyond punishing people who express arbitrarily defined "incorrect opinions" and chilling the educational environment for everyone else? How exactly is declaring campus web space a "no free speech zone" anything other than an authoritarian move designed to quell dissent--specifically, designed to quell the expression of opinions and beliefs that are not in line with reigning orthodoxy? How are students served by being taught that when they don't like someone's opinion, they should run to the authorities and demand that the offensive point of view be removed from sight? How is teaching thin-skinned dependency on a totalitarian model of authority useful training for young adults about to begin full participation in a liberal democracy? The rigid anti-intellectual norms embedded within the attempt to control and regulate campus speech defeat the whole purpose of education.

At SFSU, the solution is not to suppress the nastiness of the GUPS site, but to expose it before the world--via the media and the internet--for the intolerant, ignorant, unconscionable piece of hatred that it is. You can't do that if the site is down.