Yesterday, I wrote about the successful outcome of our joint effort with the American Association of University Professors (AAUP) to prevent passage of an electronic communications policy riddled with First Amendment problems at the University of Illinois at Urbana-Champaign (UIUC). On Monday, Inside Higher Ed ran a story about the proposed policy, noting the involvement of FIRE and the AAUP. The story also highlighted the response of UIUC Chief Privacy and Security Officer Michael Corn to some of our concerns with the policy. While the policy has now been shelved and UIUC has promised to address the issues we raised, I want to take a moment to rebut Corn’s initial dismissal of our concerns.
Corn originally appeared to believe that FIRE is seeing the specter of censorship around every corner, as though no serious threat exists. Regarding the policy’s restriction of "political campaigning," for example:
Corn said that he included the provision because state law bars public agencies from using state supported resources for political campaigning. He said he didn’t see the rule as limiting political discussion, only as applying a state law.
But this sidestepped a crucial point in our letter, as FIRE’s Azhar Majeed explains in an article in today’s Daily Illini. The policy did not at any point define the meaning of "political campaigning," as the Illinois state statute does. This leads to a very real "chilling effect" on political discourse and dialogue, whereby students and faculty are unsure of what constitutes "political campaigning" in UIUC’s eyes, and therefore will reasonably refrain from engaging in what would actually be constitutionally protected speech. This is an unacceptable outcome at a public university such as UIUC.
And even assuming for argument’s sake that the Illinois law is valid and applicable, it only applies to state employees. This policy, on the other hand, would also apply to students, who are not covered by that law. In this way, the proposed policy would go much farther than a simple application of state law, and subject student political speech to unconstitutional restrictions.
To his credit, however, Corn’s thoughts on this issue may have rapidly evolved. Todays’s Daily Illini reports Corn as saying:
"If I run for mayor, it would be completely inappropriate and illegal according to state law to run this campaign out of my office, to print out all my campaign material from a University printer and use University paper. It would be illegal to run that campaign using email@example.com as my email account," he said.
Corn agreed that the policy could be clearer in defining the term "politically campaigning".
Of course, if the rule only prevented someone from running a campaign with their university email account, that would be a different story. But, as Corn acknowledges, the policy as proposed was extraordinarily vague and ambiguous, and would have prohibited a bevy of protected speech. There also remains the problem that the policy would seemingly apply to emails sent from personal accounts if they are sent from a university computer or using a university network. We are encouraged by Corn’s narrower description of what the policy should do, and his recognition that clarifications are necessary.
However, Corn likewise sees no threat to freedom of speech from the policy’s incorporation of UIUC’s unconstitutional harassment policies or its prohibition of emails that are incompatible with the "university’s mission." Corn simply states that the policy should be consistent with other university policies. But their incorporation into this policy is unnecessary, and exacerbates the policies’ already detrimental effects on speech. If certain speech is already prohibited, why prohibit it again? There appears to be no indication that cases of sexual harassment occurring over electronic communications are unable to be resolved under existing policies, rendering this policy redundant. And as AAUP President Cary Nelson notes, this policy actually leads to the possibility that an email might be deemed as "offensive" or harassing in nature by a third-party observer, even if the person receiving the email did not take offense. Corn’s response to these concerns?
[Corn] also said that "it’s not like I’m going to be sitting in my office looking at e-mail to see if it offends someone." He said that he believes strongly in free expression, and doesn’t see the technology rules of the university being used to adjudicate disputes over speech.
What Corn failed to recognize is that even if the policy was not drafted in order to police speech in this way, if it is on the books, it is a real and ever-present threat to the freedom of speech of the UIUC community.
And the UIUC community has good reason to be both skeptical and wary. After all, as recently as 2008, the University of Illinois system told its faculty and staff that they could not have political bumper stickers on their vehicles or attend any on-campus political rally, until FIRE and other groups intervened and convinced the university to backtrack. And UIUC is the same university where a FOIA request unearthed a series of emails depicting high-level administrators blatantly conspiring to circumvent the First Amendment rights of a student organization with which they had ideological differences.
While we are encouraged by the responsiveness of UIUC to our concerns, to merely shrug off the proposed policy’s free speech concerns and say "trust us" is to ignore UIUC’s previous First Amendment mistakes. This we are unwilling to do, and we hope the UIUC community will join us in remaining vigilant against possible threats to their rights. We appreciate the university’s response to our letter, we stand ready to help Corn and others as needed, and we look forward to reviewing the revised policy.