Colorado University-Denver Revises Unconstitutionally Restrictive, Viewpoint-Based E-Mail Policy

The Foundation for Individual Rights in Education (FIRE) gets results.

From the Foundation for Individual Rights in Education (Bill Rickards):

Each month, FIRE highlights one restrictive policy at a college or university as our "Speech Code of the Month." Because it's far from an award to be proud of, FIRE encourages institutions with these policies to amend them quickly. However, our words often go unheeded, exposing the university or college to costly legal battles and chilling student expression.

But not all institutions are content with leaving bad policies on their books. This month, FIRE's December Speech Code of the Month recipient, the University of Colorado Denver, lived up to its obligation under the First Amendment by quickly revising an email policy that restricted student and faculty speech.

FIRE first called attention to CU Denver's email policy earlier this month, noting that the policy directed students not to send any "offensive … or otherwise inappropriate matter" over email. Listed examples included "offensive comments" about topics like race, gender, political beliefs, and even terrorism.

This week, CU Denver reformed the policy in line with FIRE's recommendations, striking parts of it from the books. For comparison's sake, CU Denver's old policy stated:

Do NOT use email:

1. To create, send, forward or store emails with messages or attachments that might be illegal or considered offensive by an ordinary member of the public. (e.g., sexually explicit, racist, defamatory, abusive, obscene, derogatory, discriminatory, threatening, harassing or otherwise offensive).
   …
2. To send any disruptive, offensive, unethical, illegal or otherwise inappropriate matter, including offensive comments about race, gender, color, disability, age, sexual orientation, pornography, terrorism, religious beliefs and practice, political beliefs or national origin, hyperlinks or other references to indecent or patently offensive websites and similar materials, jokes, chain letters and hoaxes, charity requests, viruses or malicious software.

The unconstitutional language taken out, the policy now reads:

Do NOT use email:

1. To create, send, forward or store emails with messages or attachments that are illegal or violate any other campus or University policy.

CU Denver, a recent addition to FIRE's Spotlight Database just this year, released a statement about the change:

Free speech is a vital part of CU Denver's mission. We strongly support and encourage students, faculty and staff to express their views, debate issues, get involved and make change. The policy was primarily geared toward faculty and staff use. We plan to update this policy and review the policy language created by our partner CU campuses.

… FIRE congratulates CU Denver on making a swift change to this policy. As always, we stand ready to assist universities in crafting policies that protect student rights. If you're concerned about a potential violation of your rights on campus or are an administrator interested in revising a policy, contact FIRE for more information.

Nice. My guess is that the old policy wasn't really thought through, but just borrowed from some sample policy (such as this one). It's good that, once the CU people focused on it, they realized that they hadn't paid enough attention to academic freedom and free speech, and promptly fixed things. (Note also that the revised policy protects faculty and staff speech as well as student speech.)

Comments

[James Pollock]

How long has it been a conservative principle that people are allowed to use other people's computer systems to spread their propaganda messages?

[TwelveInchPianist]

Which other people's computer systems are being used to spread "propaganda messages"?

[Shreeyansh Legal]

yes very true- Which other people’s computer systems are being used to spread “propaganda messages”, applies in all counrtires bnowdaYS

[EscherEnigma]

I mean, conservatives have felt entitled to using other people's tech platforms for a while now. But I think it's this year that the whining about Section 230 went mainstream.

[TwelveInchPianist]

From CNBC

"Democratic presidential candidate Joe Biden told The New York Times editorial board that tech’s legal shield known as Section 230 of the Communications Decency Act should be revoked."

[Bored Lawyer]

"other people" in this case means a publicly funded university. Which has opened its resources (specifically its email system) to its students to use for all kinds of messaging, including political and advocacy messaging. (As well as ordering a pizza for a late-night study session.)

Now tell me, at risk of being accused of projection, did you simply not realize these plain facts, or did you willfully decide to ignore them and choose to post some snark about conservatives and mischaracterize the university as "other people?" As though conservatives are now breaking into people's houses and commandeering their computers to email their "propaganda."

[Eugene Volokh]

I'd say ever since the Supreme Court held that, once the government opens up a forum in which people can express their speech, it has to administer it in a viewpoint-neutral way.

I agree that, before that was settled law, some conservatives (perhaps many) took the view that the government can restrict the use of its property as it pleases. (See, e.g., Rehnquist's dissent in Southeastern Promotions, Inc. v. Conrad (1975), the "Hair" case, though his view is a bit more complex than I describe.) But at some point -- about 1980 is probably the rough timing -- the rule I developed above became well-settled. Once that's the law, it seems to me that conservatives as well as liberals can rightly want to see it enforced.

[Dr. Ed 2]

James, whose system IS it?

It's like saying that the highway belongs to the police officer.

[EscherEnigma]

While I understand that many students will use their school e-mail as a personal e-mail, I'm not sure that's a legally enforceable standard.

That is to say, that policy is pretty close to a bog-standard e-mail/computer use policy for any modern workplace. Why are students and university professors entitled to less restrictive policies on their use of school computer resources then others? If they want a more lax policy, then like every non-student out there they can get their own e-mail.

[Bored Lawyer]

Because that is NOT where the university drew the line. Your line would likely be Constitutional, albeit not easily enforced. (As indeed is the case with work emails.)

[EscherEnigma]

Are you trying to claim that the university was restricting people's use of personal e-mail?

Because that would obviously be unconstitutional. But it also seems that if that were the case, that distinction (that the university is no longer trying to restrict personal e-mail use) would have been highlighted by FIRE. So that it isn't makes this claim suspect.

[Bored Lawyer]

No, where did you get that from?

The university assigns each student an email account. (That is the way it works with my two children who now attend university, I assume that is the case for Colorado U.) CU then adopts a policy about how each students school email account can be used.

A policy of "only use your email for school business" would likely be Constitutional, although hard to enforce. (And what is school business anyway? Where would my example of ordering a pizza for a late-night study session fit in?)

A policy that engages in viewpoint discrimination would be unconstitutional for a public university.

[EscherEnigma]

No, where did you get that from?
Because that's the only "line" I drew. And yeah, it seemed pretty odd, hence the question mark.

A policy of “only use your email for school business” [...]

This here? Not the line I drew.

[Dr. Ed 2]

The problem comes in when they establish a monopoly.

[tkamenick]

They don't have a monopoly, either on education or on email accounts (get a free one from a bazillion different providers), or on internet (use your cell phone data plan).

The real reason students and professors are entitled to a less restrictive policy is the government has less power to restrict speech than private businesses or universities. Simple.

[Eugene Volokh]

EscherEnigma: A policy that says public-university-provided e-mail may only be used for academic purposes would likely be constitutional, because it would be viewpoint-neutral. It would presumably not forbid e-mails for academic purposes (e.g., in discussions of class material) that "might be ... considered offensive by an ordinary member of the public. (e.g., ... racist, ... derogatory, discriminatory, ... or otherwise offensive)." And it would forbid even inoffensive e-mails that are unrelated to academic purposes.

That's just not the policy here, nor is it the policy (to my knowledge) at any public university. And once the public university allows people to use their e-mails for non-work/school related speech, it can't impose these sorts of viewpoint-based restrictions on them.

[EscherEnigma]

A policy that says public-university-provided e-mail may only be used for academic purposes would [...]

not be how I characterized the policy at all. This response makes no sense in context.

[David Nieporent]

Jesus. Nobody said that you characterized the policy that way. They said that in contrast to what you suggest, such a policy would be constitutional. But what you suggest — that they can limit the use by viewpoint, the way a "bog-standard e-mail/computer use policy for any modern workplace" does — would not be.

[Noscitur a sociis]

That is to say, that policy is pretty close to a bog-standard e-mail/computer use policy for any modern workplace.

I'm dubious about the accuracy of that contention. But regardless, the first amendment prevents the government from imposing some policies, regardless of how popular they might be in the private sector. This is pretty clearly one of them.

[Eric VonSalzen]

I agree that the prior policy was wrong and needed to be changed. However, I wonder whether an educational institution might properly advise its students to think twice (or more) before sending emails, tweets, forwards, or whatever, because the internet lives forever.

[Bored Lawyer]

Legally, sure. Nothing discriminatory about that.

And that is great advice too.

[Milhouse]

Sure, so long as they do it in a strictly viewpoint-neutral way. The moment they inject a viewpoint, as this policy did, it becomes invalid.

[Rev. Arthur L. Kirkland]

Colorado University or University of Colorado?

[Rev. Arthur L. Kirkland]

Viewpoint-driven censorship is wrong.

I call it the "Artie Ray" rule.

I also think those who engage in viewpoint-based, partisan censorship are generally paltry candidates to criticize others for viewpoint-based censorship -- although I recognize the right to engage in shabby conduct.

[TwelveInchPianist]

"although I recognize the right to engage in shabby conduct."

You misspelled exercise.

[Bored Lawyer]

Still working on understanding the concept of State Action I see. Maybe some day the light will dawn. But not this day.

[Rev. Arthur L. Kirkland]

Explain it for me, like a good little inconsequential clinger.

[Bored Lawyer]

Already done that several times here. Buy the Cliff notes.

You might also want to look up "inferiority complex."

[Dr. Ed 2]

"To create, send, forward or store emails with messages or attachments that are illegal or violate any other campus or University policy."

Again. FIRE is well-intended but obtuse. What inevitably happens is they impose content-based censorship via an obscure campus policy.

[Milhouse]

Nope. University policies themselves are subject to the same restrictions, and must be viewpoint-neutral. The university can have a viewpoint, but can't have a policy preventing others from disagreeing with it.

[Doug Sundseth]

NB: The University of Colorado has long used the abbreviation* "CU", probably to reduce confusion with the University of California system ("UC"). Similarly, "CU Denver" is the "University of Colorado Denver". (They don't seem to use a comma between "University of Colorado" and Denver".)

See https://www.ucdenver.edu/ , for instance.

* With the caveat that "abbreviation" here is merely a shorter form.

[John F. Carr]

The new policy incorporates by reference all other university policies. Does any of those policies forbid offending anybody? I remember working for a big company with a similar meta-policy. All employees were ordered to agree to follow all company policies. I asked to see all company policies. Denied. Nobody kept track of them. I figure the demand was made so HR would have an excuse to fire anybody "for cause." Violation of most policies was subject to "disciplinary action up to and including immediate termination."

[Shreeyansh Legal]

Which other people’s computer systems are being used to spread “propaganda messages”, its true and applies to every country - https://shreeyanshlegal.com/