I was interviewed earlier this week by Mark Glaser, author of PBS's MediaShift blog, about an interesting situation involving an "embedded" student blogger at New York University, my alma mater. Because the case involves the intersection of new media (like blogs and Twittering) and classroom speech, I thought it would be useful to briefly examine here on The Torch.
First, here's the story.
Prior to the start of fall classes, Glaser asked NYU undergrad Alana Taylor if she would be interested in writing reports for MediaShift about her experiences taking new media classes in NYU's Journalism Department. Taylor agreed, and submitted her first post —entitled "Old Thinking Permeates Major Journalism School"—two weeks ago. As the title implies, Taylor's first report as an "embedded" student is an insightful critique of the first session of a class called "Reporting Gen Y (a.k.a. Quarterlifers)." Taylor's post (which includes a picture of the classroom taken during a break and a Twitter update posted during class) argues that despite the nods to the importance of Internet journalism, her professor, Mary Quigley, seems to fail to fully comprehend the subject:
I found Quigley lacking in understanding. Again, I don't expect her to be an expert on the world of social media, but for some reason I am unsettled at the thought of having a teacher who is teaching me about the culture of my generation...At least I had hoped that this class would be more advanced. I hoped that perhaps my teacher would be open to the idea of investigating other sources of news from the Internet and discussing how they are reliable or not. I hoped that she wouldn't refer to podcasts as "being a pain to download" and that being aware of and involved in the digital era wasn't just a "generational" thing. I am convinced that I am taking the only old-but-new-but-still-old media class in the country...But one thing's for sure —I'm certainly going to gain some insight into what exactly they mean by generation gap.
Once posted on MediaShift, Taylor's critique quickly found a wider audience, and Professor Quigley wasn't pleased. In an individual meeting with Taylor, Quigley told her that she should have asked permission to blog about the class, and that she violated the privacy of Quigley and her fellow students by writing about the classroom experience. Quigley also informed Taylor that she had violated basic journalism ethics, and that she was not to write, blog, or Twitter about the class in the future. According to Glaser, this admonition was understandably upsetting to Taylor, who had planned follow-up interviews with Quigley and other faculty members. Taylor cancelled further reports from class —and Glaser set about trying to find out how much merit Quigley's arguments had.
Talking with me, Glaser asked about whether NYU could legally restrict students like Taylor from writing about what happens in class. Here's my answer:
Creeley said that NYU might have legal grounds for restricting what students write about classroom activities, but that it would look hypocritical for a school that touts freedom of the press.
"While it might be technically true [that a private school could restrict speech], it would be evidence of an awfully meager interpretation of the rights of free expression which NYU explicitly guarantees its students in its promotional materials and its student handbook," said Creeley, who got his undergraduate and law school degrees from NYU. "They could make that claim but I don't know if that would be consistent with their imagination of themselves as a modern university with those rights guaranteed."
As for the claim that live-blogging would be an invasion of privacy, Creeley thought it was more of a red herring.
"The idea that live-blogging or Twittering would be an invasion of privacy —from a legal standpoint, that doesn't hold water," he said. "There's no possible expectation on the teacher's part for privacy about what is taught in the classroom. If that's the case, then no one could write a teacher feedback form at the end of class. That would go out the window. That's a far cry from what goes on in one's own home, or in a telephone conversation or email exchange."
So there are two main points here. First, as a private institution not bound by the First Amendment, NYU could restrict student speech, including student speech about classes, if it so chose. But then it wouldn't be NYU —at least not an NYU either alumni like myself or current students like Taylor would recognize. The NYU we know is a modern liberal arts university that claims to value free expression and makes extensive promises of free speech to its students in its promotional materials and policies. In fact, because New York state case law has recognized that school policies effectively serve as the basis of a contract between the school and the student, if NYU was to punish Taylor, she could likely bring a viable suit for breach of contract. See Tedeschi v. Wagner College, 49 N.Y. 2d 652 (Ct. App. 1980); McConnell v. Le Moyne College, 2006 N.Y. Slip Op. 256 (Sup. Ct. 2006). Promises of free speech carry a lot of weight—even in a court of law.
Second, I don't think teachers have a reasonable expectation of privacy in terms of what happens in their classroom. As I told Glaser, the classroom is just not equivalent to one's home or one's private correspondence. Like noted First Amendment expert Floyd Abrams told Glaser, talking about what happens in class "does not violate the 'privacy' of the classroom and should not be banned or punished."
For the record, it's worth noting, too, that Quigley's story evolved from when she first talked to Taylor to when Glaser contacted her for comment. According to Taylor, Quigley told her that she was not allowed to blog or Twitter about class. In the subsequent class after the publication of Taylor's critique, Quigley had the class read the article, then seemed to put the decision up to a kind of vote. As Glaser writes:
Taylor described to me what happened when Quigley brought up the article in class later.
"She told the class to read the article," Taylor said. "Then she asked, 'You all read Alana's article, what did you think about it?' There was silence for a good 30 or 45 seconds, and it was awkward and weird. And she said, 'OK, we can all agree that there will be no more blogging or Twittering about the class.' It was weird. It seemed like the students were scared to say anything."
Finally, when contacted by Glaser, Quigley informed him in an e-mail that "I did say after the class session they were free to text, Twitter, blog, email, post on Facebook or whatever outlet they wanted about the course, my teaching, the content, etc." (Emphasis hers.) Maybe I'm being uncharitable, but to me, this shifting explanation of what the rules were and when seems like a classic case of a post facto explanation of attempted censorship. As we at FIRE often say, censors are often loath to defend in public that which they practice in private. If Glaser hadn't been on the case, would Quigley have concluded by allowing outside writing about the course? And what if Taylor's post had been full of glowing praise?
Since I'm a lawyer, not a journalist, I'm going to pass on whether Taylor's reporting violated journalistic ethical standards. (However, I recommend that readers interested in those issues read the illuminating debate in the comments section of Glaser's post.) But I will note that regardless of the technology involved, the basic principles of free expression are applicable here. At private schools like NYU that promise a robust right to freedom of expression, students have every right to expect (unless specifically informed otherwise, apropos a certain class or academic situation) that they will be free to talk, write, text, Twitter, blog or e-mail about what happens at school or in classes. Much as Greg and I wrote in our article for The Phoenix about Facebook last year, students and faculty should keep sight of the vital importance of freedom of speech on campus —no matter the medium used to exercise it.