FIRE
Foundation for Individual Rights in Education
Opinion
December 3, 2009
SUNY Brockport’s “Internet/Email Rules and Regulations” state that All uses of Internet/e-mail that harass, annoy or otherwise inconvenience others are not acceptable. This includes, but is not limited to … offensive language or graphics (whether or not the receiver objects, since others may come in contact with it).
This policy is unconstitutional on many levels. First, the university cannot prohibit speech that merely “annoys” others—the fact that expression is annoying does not deprive it of constitutional protection. Rather, having to deal with annoyance is just one price we pay for living in a free society. We probably all have that Facebook friend who constantly posts highly “annoying” status updates about what she’s eating for lunch, but we can’t turn to the government (including an agent of the government like a state university) to shut her up—that’s what the “Hide Posts From…” button is for.
The university also may not prohibit all online expression that “inconvenience[s] others”; such a prohibition is both impermissibly vague and impermissibly overbroad. It is impermissibly vague because it could mean almost anything, forcing students to guess at what might lead to punishment under the provision. (Do you know what kind of e-mail might “inconvenience” someone? I certainly don’t.) And it is impermissibly overbroad because a great deal of expression that someone might find an “inconvenience” is nonetheless entirely constitutionally protected. Many people, for example, find it inconvenient when others disagree with them!
To make matters worse, the policy provides specific examples of violations including “offensive language.” As has been explained in cases too numerous to mention, however, it is unconstitutional to suppress free speech on the grounds that it is subjectively offensive to some listener. As one federal appellate court put it, there is “no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive….” Saxe v. State College Area School District, 240 F.3d 200, 206 (3d Cir. 2001). Worse yet, the language in question doesn’t even have to offend the message’s recipient; rather, it is punishable if it is deemed offensive by some unspecified party (presumably the university administration) “since others may come in contact with it” and be offended. So, under this policy, sending an off-color joke or expressing a controversial opinion in an e-mail to a consenting friend is worthy of disciplinary action, since that e-mail could someday fall into the hands of someone who might be offended by it. Truly unbelievable.
What makes this policy all the more remarkable is the fact that SUNY Brockport has already been sued once over its unconstitutional speech codes. In 2004, students filed a federal lawsuit challenging several of the university’s speech codes, and the university repealed those speech codes in a settlement with the students, marking a significant victory for free speech. It is almost inconceivable that an institution which has already been through the time and expense of a First Amendment lawsuit would once again risk liability by maintaining a ridiculous policy such as this one. For these reasons, SUNY Brockport is our December 2009 Speech Code of the Month.
Copyright 2009 Foundation for Individual Rights in Education