September 22, 2010
Grambling State University’s response to the concerns raised by the Foundation for Individual Rights in Education (FIRE) and the American Civil Liberties Union of Louisiana (LA ACLU) about the constitutionality of the university’s prohibition of political expression via e-mail is insufficient. Indeed, GSU’s response, rather than addressing our concerns, greatly magnifies them.
First, GSU’s response fails to retract or even acknowledge the prohibition on core political expression announced in its July 13 e-mail to all students. The e-mail instructed students that “impl[ying] support for [a] candidate” via e-mail was not allowed and could be “a violation of state policy.” But as both FIRE and the LA ACLU pointed out in letters to GSU President Frank G. Pogue, a public university may not broadly deny its students the right to engage in such basic political speech. In fact, a university should encourage broad debate on issues of public importance, rather than censor speech.
Second, rather than rescind this unconstitutional ban, GSU’s response highlights further violations of the First Amendment rights in its email policies.. Despite announcing that “Grambling State University does not prohibit students or employees from political expression,” the “Grambling State University Email Use Policy” included in GSU’s response contains several unconstitutional restrictions on political expression and other free speech.
For example, the policy prohibits “the creation or distribution of any disruptive or offensive messages, including offensive comments about race, gender, hair color, disabilities, age, sexual orientation, pornography, religious beliefs and practice, political beliefs, or national origin.” It is not clear what constitutes an “offensive message,” nor how anyone will know whether someone else will take offense at any particular message. Most “offensive messages” are fully protected by the First Amendment, rendering GSU’s prohibition impermissibly overbroad and vague. By failing to include any objective standard for evaluating the allegedly “offensive” content of an e-mail, e-mail authors are at the mercy of the sensibilities of the most easily offended community members and the whims of university administrators..
The policy also prohibits “[s]ending chain letters or joke emails from a Grambling State University email account.” Not only does GSU, as a state university, lack the constitutional authority to ban e-mailed “jokes,” its policy also fails to provide students or faculty with any reasonable definition of what constitutes a “chain letter” or “joke email,” leaving students and faculty to guess at what content is and is not forbidden. If members of the university community are forbidden from telling jokes in their emails, they are left to ponder the sense of humor of each recipient. The resulting uncertainty engenders a chilling effect on GSU’s campus in violation of the First Amendment. Additionally, by relying on undefined, subjective, and vague terms like “offensive,” “chain letters,” and “joke emails,” the policy grants GSU administrators unbridled discretion to censor or punish protected speech.
This policy cannot stand. Grambling State University is a public institution, legally bound to uphold the First Amendment. FIRE and the LA ACLU ask Grambling State University to immediately revise its e-mail policy in compliance with the free expression rights of students and faculty and to issue a clarification to all campus community members regarding a constitutional GSU e-mail policy.
Will Creeley, Director of Legal and Public Advocacy, Foundation for Individual Rights in Education
Marjorie Esman, Executive Director, ACLU and ACLU Foundation of Louisiana