In ‘Rodriguez,’ Ninth Circuit Recognizes E-Mail Listserv Deserves First Amendment Protections

May 25, 2010

Last Friday, the Ninth Circuit Court of Appeals handed down a unanimous decision that reaffirms the free expression rights for which FIRE advocates. Yesterday, Erica examined the case’s contribution to both individual and institutional academic freedom. It also contains interesting implications for the First Amendment doctrine of forum analysis. 

First, let’s review what exactly "forum analysis" means.

In First Amendment jurisprudence, courts often have worked from the idea that there are essentially three kinds of forums: traditional public, traditional nonpublic, and limited public. In a traditional public forum, such as a public street or a public park, the government has very limited authority to restrict speech. The state can only do so if its regulations serve a compelling state interest and are narrowly tailored to achieve that interest. See, e.g., Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45 (1983). In a traditional nonpublic forum, such as a military base, courthouse, or prison, on the other hand, the state does have the right to allow or disallow access based on subject matter and speaker identity. See, e.g., id. at 45-46. Finally, a limited public forum is public property that is not usually used for public communication, like a municipal meeting room. Here, the state has more leeway to maintain the forum for its intended purposes only, so long as any regulation on speech is reasonable and not viewpoint-based. See, e.g., id. at 46.

In Rodriguez v. Maricopa County Community College District, the Ninth Circuit was presented with the opportunity to decide what type of forum the district’s (MCCCD’s) e-mail listserv was. (See Will’s excellent summary of the facts of the case here.) The plaintiffs, MCCCD employees who were offended by Professor Walter Kehowski’s e-mails, argued that the listserv was a limited or nonpublic forum, hoping that the court would agree and hold that MCCCD should have restricted Kehowski’s speech in a manner beyond that which is allowed in a traditional public forum. However, the court chose to assume only for the sake of argument that it was a limited or nonpublic forum. The court did not actually conclude that it was a limited or nonpublic forum, reserving its power to examine this issue later.

Even using a limited or nonpublic forum analysis that is more generous to state control of speech than public forum analysis, the Ninth Circuit held that Kehowski had a First Amendment right to send the e-mails in question through the MCCCD listserv. The court recognized that if MCCCD had applied its harassment policy to silence Kehowski after his initial allegedly offensive e-mail, as the plaintiffs say MCCCD was obligated to do, such action would have been an impermissible restriction under the First Amendment:

The power to limit or close a forum does not entail any such obligation. If speech is harassment, the proper response is to silence the harasser, not shut down the forum. And if speech is not harassment, listeners who are offended by the ideas being discussed certainly are not entitled to shut down an entire forum simply because they object to what some people are saying. Such a rule would contravene the First Amendment’s hostility towards laws that "confer broad powers of censorship, in the form of a ‘heckler’s veto,’ upon any opponent of" certain points of view. Because some people take umbrage at a great many ideas, very soon no one would be able to say much of anything at all. [Internal citation omitted; emphasis added.]

The court’s bottom line challenges those who were offended by Kehowski’s remarks. Instead of forcing MCCCD to "shut him up," anyone offended by Kehowski’s e-mails should instead "engage him in debate or hit the ‘delete’ button when they receive his emails." FIRE couldn’t agree more. They are free to respond or to ignore him, but MCCCD employees don’t have the right to censor a fellow employee using the power of the state. FIRE praises the Ninth Circuit for upholding Kehowski’s First Amendment right to contribute to the MCCCD e-mail listserv.

By the way, this is a good lesson for Utsav Gupta, who as president of Associated Students of University of California San Diego shut down funding to all student media organizations because some people were offended by a broadcast on the student-run television station.

FIRE also praises MCCCD for rightly allowing Kehowski to continue to send e-mails through the MCCCD community listserv. E-mail should not be treated differently than other forms of speech just because a college or university has provided its community with a listserv and an Internet connection. An e-mail listserv of this type is most analogous to the campus common areas, where students and university employees are given access to speak their minds. Thus, a university can restrict the content of e-mails only if it has narrowly tailored such a restriction to serve a substantial, or in some cases compelling, state interest. Just as Kehowski has the right to protest or to share his views on campus grounds, under the First Amendment he can also communicate those views in electronic form.