Like a horror movie monster, the controversy over campus gossip sites just won’t die.
In retrospect, we probably should have known that the demise of controversial campus gossip site JuicyCampus.com this past February wouldn’t really be the end of the furor provoked by college students saying nasty things about other students online. No, when you’ve got a story sporting this much media allure—that is, the seemingly irresistible combination of college students, sex, drugs, and gossip—there just has to be a sequel.
So it’s no surprise to see The Chronicle of Higher Education run a story last week about the "new and expanded online forums promising to be bigger and juicier than the infamous JuicyCampus." Really, it’s impossible to blame The Chronicle for paying attention to the next wave of student gossip sites that have sprung up in hopes of taking JuicyCampus’ place. After all, JuicyCampus did manage to offend enough students and administrators to find itself simultaneously featured in The New York Times, banned at public universities like Tennessee State, and even the subject of an investigation by the Attorney General of New Jersey. No doubt the entrepreneurs behind the new sites are hoping in part for similar infamy, calculating that with notoriety may come lucrative web traffic.
But while The Chronicle‘s attention to these new sites is certainly warranted, what’s troubling is that the legal experts quoted in the article demonstrate a stunning lack of respect for basic principles of free expression. Worse still is that their views are in danger of being adopted by the United States Department of Education’s Office for Civil Rights.
For starters, Professor Daniel J. Solove of George Washington University trots out a dangerously inapt comparison when discussing the fact that the vast majority of objectionable speech found on campus gossip sites is protected by the First Amendment, a point that FIRE made repeatedly with regard to JuicyCampus during the past year. Professor Solove isn’t happy with this fact of First Amendment jurisprudence:
"I don’t see why it has to be that way," the law professor told me in a recent interview. "Just like when you drive, it’s not a free-for-all," he added, equating the current laws governing online forums to a road without traffic lights or stop signs. "It’s like if we looked at the roads and said, There’s just nothing to be done—let’s just abolish all rules of the road."
But contrary to Professor Solove’s assertion, there are legal principles governing online speech—and guess what? They’re the same principles that govern offline speech. Thankfully, the First Amendment isn’t somehow suspended when students venture online, and students angered by posts on a gossip website have full recourse to all the legal options available to them when confronting offline speech. As I discussed last March:
First, it should be emphasized that when the speech on JuicyCampus rises to the level of incitement or "true threat," law enforcement will be able to take action…. Next, it’s crucial to remember that although JuicyCampus claims to serve the interests of "free speech," the First Amendment doesn’t protect libel. If students or faculty feel that a particular post on JuicyCampus constitutes actual defamation—i.e., that a demonstrably false statement about them has resulted in actual harm other than mere insult or offense—then they may bring a civil action in court. People have a right to sue for defamation—and false allegations of sexual promiscuity, having a "loathsome" disease, or criminal wrongdoing are legally considered libel per se.
So with these remedies available for truly unprotected speech, ditching First Amendment protections for online speech more generally, as Professor Solove seemingly argues for, would usher in a real free-for-all. Universities would quickly adopt hyper-defensive risk-management policies that would inevitably result in intense monitoring of online student speech out of a fear of liability for newly actionable instances of online "harassment."
Unfortunately, some advocates seem to be pushing for this kind of result. The Chronicle‘s article details a recent ruling by the Department of Education’s Office for Civil Rights regarding a complaint filed by a student at Hofstra University who was referred to by anonymous authors as a "slut" and a "whore," amongst other vile names, on JuicyCampus. Asked by the student’s mother to block access to JuicyCampus, Hoftsra administrators said they could not do so because the website was not under university control. Frustrated, the student’s mother took legal action, as The Chronicle recounts:
[T]he parent filed a complaint with the U.S. Department of Education’s Office for Civil Rights, arguing that under Title IX, the federal gender-equity law, the university must respond to any sexual-harassment incident involving students, even if it takes place in an online forum. The complaint argued that real harm was done to the female student by the comments, and that the "gender- and sex-specific harassment has interfered with her ability to learn in an environment of equal educational opportunity."
In August the Education Department issued its ruling in the case. It found that because the comments were posted anonymously and not necessarily by students, and because the mother who complained did not identify her daughter by name so that the university could follow up, "the university had insufficient information to investigate or otherwise respond to the complainant’s concerns." Officials at Hofstra say that they take such incidents seriously, and that they advised the mother to have her daughter report the conduct to the campus police (which she did not do).
Security on Campus, an advocacy group that represented the student in the case, said it planned to appeal the ruling. It also issued a news release claiming victory, arguing that the department’s willingness to even consider the complaint means that gossip Web sites fall under Title IX guidelines.
While there is much to admire about Security on Campus’ past work on behalf of student safety, demanding that universities police online speech posted on non-school websites strikes me as arguably well-intentioned but certainly dangerous.
Think about it: If the Office for Civil Rights were to rule that schools receiving funds from the Department of Education are legally required to respond to reports of allegedly harassing online speech about a student, even if that speech is posted on a non-university website, then college administrators would suddenly have a lot more ground to cover. Schools fielding complaints about online speech would be forced to deputize administrators as pseudo-Internet sheriffs, responsible for making the entire Web safe for students, and their jurisdiction would be vast indeed. Official monitoring of social networking sites like Facebook, Twitter, and MySpace would become a "best practice" for administrators tasked with the near-impossible job of determining who is saying what about whom online.
Given the mess that far too many administrators have made of formulating and applying harassment regulations governing offline speech on campus, I think I can be forgiven for worrying deeply about the prospect of expanding schools’ responsibilities to include all online speech concerning any student. As FIRE has documented time and again, far too often protected speech is deemed punishable as "harassment" on campus, despite not meeting the strict legal standard for such. (To constitute actionable peer-on-peer hostile environment harassment in the educational setting, the alleged conduct must be "so severe, pervasive, and objectively offensive, and . . . so undermine and detract from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.") I have little faith that nervous campus administrators, fearing liability for failing to respond appropriately to complaints about online speech, would suddenly start applying the standard correctly—in a way that ensures that speech that does not meet the definition of harassment retains First Amendment protection, whether online or off. More likely, we’d see stricter, vaguer, more sweeping regulations of speech in student handbooks than ever before.
And it’s worth asking what we expect administrators who do discover instances of true peer-on-peer harassment online to do about it other than punish the harasser. Block the offending website on campus? If it’s a site like Facebook or JuicyCampus, doing so will almost inevitably result in silencing protected speech along with the true harassment, giving rise to legal challenges on First Amendment grounds. Also, campus blocks are easily circumvented via proxy servers or simply accessing the site from an off-campus location. And what about unmasking anonymous online speakers? How does a campus administrator go about doing that? Law enforcement can compel Internet providers to do so, but can administrators?
The bottom line is that while schools are (correctly) legally required to respond to harassment on campus, whether that harassment be "in the real world," on university-controlled websites, or with university-controlled e-mail addresses, it’s too much to ask that universities be responsible for the rest of the Web, too. It’s too big a job, it’s too problematic in terms of available remedies, and it’s an invitation to even worse speech abuses and speech codes. And, perhaps most importantly, it’s unnecessary. Again, it’s crucial to remember that students who feel victimized by nasty online speech have recourse to all the legal courses of action I outlined above: filing a criminal complaint against speech that reaches the threshold for incitement, intimidation, criminal harassment, or threat; or bringing a civil action for libel or defamation. Either way, students have methods of protecting themselves from truly harmful speech online without having to resort to asking their universities to intervene—a task for which those universities are thoroughly ill-suited.