FIRE & AAUP Letter to UIUC Chancellor Robert Easter

By September 9, 2011

September 9, 2011

Chancellor Robert Easter
University of Illinois at Urbana-Champaign
Swanlund Administration Building
601 E. John Street
Champaign, Illinois 61820

URGENT

Sent via U.S. Mail, Email (reaster@illinois.edu), and Facsimile (217-244-4121)

Dear Chancellor Easter:

The Foundation for Individual Rights in Education (FIRE) and the American Association of University Professors (AAUP) write you today to express our deep concerns about a proposed policy at the University of Illinois at Urbana-Champaign (UIUC), the "Provisional Electronic Communications Policy Document." If made official policy at UIUC, the proposed policy will restrict the First Amendment rights and academic freedom of students and faculty in a number of serious ways. We will review these flaws in turn.

First, the policy states that "[e]lectronic communications resources may not be used for … political campaigning." Yet imposing a restriction on "political campaigning" altogether would deprive students and faculty of the right to engage in a wide swath of constitutionally protected political speech and activity. As a public university legally bound by the First Amendment, UIUC may not place such a far-reaching restriction upon student and faculty expression. The political speech and activity that UIUC seeks to regulate falls under the First Amendment’s guarantee of freedom of speech; indeed, the protection of such political speech was arguably the impetus for the First Amendment. As the Supreme Court of the United States has repeatedly made clear, "speech concerning public affairs is more than self-expression; it is the essence of self-government," reflecting "our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (internal quotations omitted).

Furthermore, the policy fails to provide any definition of what expression may constitute "political campaigning" and would thus be void for vagueness if enacted. A regulation is said to be unconstitutionally vague when it does not "give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). Under this policy, UIUC students and faculty are given no notice as to what expression the administration may consider "political campaigning," and this term, standing alone, does not adequately apprise UIUC community members of their speech rights. Instead, the policy vests unchecked discretion in those administrators charged with enforcing it, creating the likelihood of uneven and selective enforcement. The defect of vagueness is especially harmful when considering core First Amendment rights. As the Supreme Court has observed, "[W]here a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.’" Grayned, 408 U.S. at 109 (internal citations and quotation marks omitted). If this policy were to be enacted, students and faculty would likely self-censor, silencing a great deal of protected political speech and activity on campus. Such a result is impermissible at a public institution of higher learning. To avoid this illiberal chilling effect on campus discourse, UIUC must immediately revise its proposed ban on any and all "political campaigning" in electronic communications.

This proposed policy is all the more concerning in light of the University of Illinois System’s recent attempt to restrict political speech on campus. In 2008, the University of Illinois System prohibited faculty and staff from engaging in a wide variety of political activity, such as wearing a pin or T-shirt in support of a political candidate or party, conducting political research such as "an opinion poll related to anticipating an election outcome," and even placing a political bumper sticker on one’s vehicle. FIRE informed then-President B. Joseph White that when a faculty member engages in private political expression such as wearing a political button, any reasonable observer would assume that the button’s message reflects a personal viewpoint and not necessarily the institution’s views and that, therefore, allowing such political speech would not endanger the university’s obligation to refrain from endorsing a particular candidate or party (see attached letter). AAUP faculty members also began circulating a draft statement about the prohibitions on political expression, stating that "the AAUP deplores their chilling effect on speech, their interference with the educational process, and their implicit castigation of normal practice during political campaigns." Following our intervention, President White rescinded the policy and clarified to the university community that faculty and staff were free to engage in protected political speech and activity. Unfortunately, the proposed electronic communications policy at UIUC would violate President White’s promise.

Second, UIUC’s proposed policy prohibits electronic communications that "interfere with the mission of the University," as well as "uses that violate other existing University and campus policies." While the policy does state that electronic resources are provided to meet the "academic, research, and outreach mission of the University" and links to the university’s mission statement, the ban on speech that is deemed to interfere with UIUC’s mission again vests far too much unbridled discretion in administrators who are charged with enforcing this provision. Given the ambiguity and lack of specificity contained in this provision, the same analysis of the vagueness doctrine detailed above applies here. Under this provision, expressing one’s views on any number of matters could lead an administrator to determine that such protected speech "interferes" with the mission of the university, no matter how unreasonable that determination is. If the university decides that faculty expression about union activities, for example, interferes with its mission, this determination alone would be sufficient grounds to prohibit and sanction the expression. Again, this result is unacceptable and is in violation of the First Amendment.

Moreover, the ban on "uses that violate other existing University and campus policies" by definition incorporates all existing speech policies at UIUC. Given that UIUC at present maintains a number of unconstitutional speech policies (including policies on "Harassment" and "Sexual Harassment" in its Housing Hallmarks, a policy on "Campus Conduct" in its Equal Opportunity and Access Policy and Procedures, and a policy on "Acts of Intolerance – Reporting" through the Office of the Dean of Students), the incorporation of these policies by explicit reference introduces significant speech restrictions upon the use of electronic communications by faculty and students. Presumably, students and faculty will face sanction for engaging in electronic communication that UIUC deems to be, for instance, a "statement that is offensive [or] humiliating" (per its Sexual Harassment policy), or a "demeaning depiction[]" (per its Harassment policy). That students and faculty will be made to fear punishment for such protected speech, and will likely self-censor as a result, threatens freedom of speech and academic freedom. Faculty members and students must be free to email one another (and their students) statements that might seem "offensive," particularly on topics of research, teaching, and study that involve controversial issues, such as sex, sexual identity, and gender studies. Faculty members and students must not labor under the specter of punishment of protected speech under the guise of "sexual harassment" and the fear that an "offended" person will bring them up on charges for airing their views.

Third, the policy requires administrative pre-approval for sending unsolicited email to over 100 recipients. While 100 is a significant number of recipients, and being forced to obtain pre-approval is not necessarily the equivalent of being denied a priori the right to send such emails, this is nevertheless an onerous requirement that burdens any number of legitimate and important university-related messages. Students and faculty should retain the right to alert the UIUC community to urgent campus issues such as a weather-related emergency, a threat of violence on campus, or an important policy change. The better approach, rather than placing the requirement of pre-approval on individuals in these and other situations, would be to take action against an individual who has misused UIUC’s electronic resources by, for instance, sending truly "spamming" messages to large numbers of recipients on numerous occasions. Unfortunately, as presently written, the policy fails to recognize the distinction between such abuses and the types of necessary, relevant, and useful communications burdened by the policy’s requirement of administrative pre-approval.

Finally, the policy states that "[i]ndividuals and units are required to accurately and correctly identify themselves in all electronic communications." To be clear: the right to speak anonymously is protected by the First Amendment. The Supreme Court has held that "[t]he decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible … Accordingly, an author’s decision to remain anonymous … is an aspect of freedom of speech protected by the First Amendment." McIntyre v. Ohio Elections Commission, 514 U.S. 334, 341-42 (1995). Indeed, from the time of Thomas Paine’s originally anonymous tract Common Sense, anonymous expression has enjoyed a significant role in the history of our nation’s speech, literature, and discourse. In recognition of this history and jurisprudence, UIUC’s requirement of self-identification in all electronic communications has no place at a public university bound by the First Amendment. Further, this provision not only wholly prevents students and faculty from engaging in anonymous speech, but it also seemingly applies to electronic communications sent to a university account even from a personal account, rather than just to communications sent from a university account. The overly broad ban on anonymous communications is untenable, particularly given the presumptive ease with which the university’s staff members or law enforcement may secure identifying information about a sender’s identity, such as an IP address, if necessary.

The First Amendment threats in this proposed policy are greatly magnified by its definition of an "Electronic Communications Resource" as "[a]n account, program, or device used to support electronic communications." This definition suggests that even email and other electronic communications sent from a personal account that happens to pass through a university computer or network are caught in the net of this policy.

We have learned that the UIUC Senate will deliberate about the policy at its meeting on Monday, September 12, after it has been endorsed by the Senate Executive Committee. Given the urgent nature of this matter, both FIRE and the AAUP ask that you recognize the serious harm this policy would have on freedom of expression and inquiry at UIUC and take immediate action to rescind its unconstitutional restrictions on student and faculty speech. We further request that you clarify to the faculty and students of the university that protected expression may never and will never be investigated or punished at UIUC.

Thank you for your attention and sensitivity to these important concerns. We ask for a response by September 26, 2011.

Sincerely,

   

Azhar Majeed                                                               Cary Nelson

Associate Director of Legal & Public Advocacy            President

Foundation for Individual Rights in Education              American Association of University Professors

 

cc:

Matthew B. Wheeler, Chair, Senate Executive Committee, Academic Senate, UIUC
Joyce Tolliver, Vice Chair, Senate Executive Committee, Academic Senate, UIUC
Members, Senate Executive Committee, Academic Senate, UIUC (via email)
Michael Corn, Chief Privacy and Security Officer and University Chief Information Security Officer, UIUC

Encl.