As colleges across the country have closed their physical campuses and moved to online instruction in response to the COVID-19 crisis, it may seem unnecessary to designate a policy as our Speech Code of the Month. After all, if students aren’t on campus, they aren’t taking part in demonstrations on the quad or posting signs on kiosks in the student union.
But many policies that regulate expression at universities don’t just cover in-person interactions. Fordham University, for example, maintains an “Information Technology Use” policy with broad restrictions that apply to the use of university email and other online resources — which would include materials sent from a student’s off-campus location.
Because that policy improperly restricts student speech, it is FIRE’s Speech Code of the Month for April.
As FIRE’s President and CEO Greg Lukianoff wrote last week, a growing number of FIRE cases involve online speech, and with the use of email and other university online resources increasing during this time, we expect that number to rise even more. It is important, then, to make clear that the First Amendment standards that govern public universities (and private universities like Fordham that promise their students free speech in written materials) apply whether the speech takes place in person or online.
And yet, severely restrictive policies governing online expression are all too common — of all the categories of speech codes in our Spotlight database, information technology policies are second only to harassment policies in earning our worst, “red light” rating.
Fordham’s policy, for example, states that users of its IT resources are prohibited from “[u]sing any IT Resource, including email or other communication system to intimidate, insult, embarrass, or harass others.” Speech that meets the legal standard for intimidation or that is included in unlawful harassment is not protected under First Amendment standards. But banning the use of a resource to “insult” or “embarrass” others includes a great deal of protected speech.
It’s easy to imagine a scenario where a Fordham student could claim that they were insulted or embarrassed by something that was emailed to them by another student or posted on the school’s online learning management system.
Indeed, these cases happen all too frequently. Just last month, FIRE shared concerns over reports that the Michigan State University Police Department was investigating comments condemned as racist that were posted during an online question-and-answer session with the president of the university. The MSU Police Department later confirmed to FIRE that they had not sought to identify the anonymous commenters, as they determined the comments did not amount to criminal conduct. However, such a scenario could play out differently at a university that prohibits any use of technology resources that is deemed insulting or embarrassing. Student violators could be disciplined by the university.
Right now, colleges and universities are faced with a host of difficult logistical issues in switching to online instruction. But we cannot allow these circumstances to excuse infringements on free expression.
If you are a college student or faculty member interested in free speech, consider joining the FIRE Student Network or Faculty Network to connect with a coalition of college students and faculty members dedicated to advancing individual liberties at their institutions.
If you’re concerned about a potential violation of your rights — whether online or on campus — contact FIRE for more information.
Ask Fordham to revise this policy