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February 8th, 2010
Washington School Censors Fairy Tales
Robert Frost Elementary in Washington State canceled the touring theatre-troupe Studio East’s production of the Emperor’s New Clothes and demanded several edits to Snow White and the Black Forest due to fears that students would imitate the bad behavior of some of the characters. The plays, according to the school, violate its Human Dignity Policy.
NCAC, [...]
February 8th, 2010
Comment filters for online class disrupts education in Kentucky
A Jefferson County Public School student was banned from mentioning the name of his website in a Search Engine Optimization class offered through the school’s online continuing education program. His URL: www.olbastard.com. His context: he sells bastard files.
He attempted to post comments to the online forum, but because his URL was the subject of his [...]
February 8th, 2010
Victory for Free Speech at San Jose State University: Administrators Lead the Way
There is good news today for students living in the residence halls at San Jose State University (SJSU). The housing department has revised several restrictive policies, including a previous FIRE Speech Code of the Month, thanks to the efforts of administrators seeking to protect the free speech rights of SJSU students.
In April 2009, FIRE named SJSU our Speech Code of the Month for a housing policy providing that
Any form of activity, whether covert or overt, that creates a significantly uncomfortable, threatening, or harassing environment for any UHS resident or guest will be handled judicially and may be grounds for immediate disciplinary action, revocation of the Housing License Agreement, and criminal prosecution. The conduct does not have to be intended to harass. The conduct is evaluated from the complainant's perspective.The policy also listed examples of prohibited conduct including "verbal remarks," "ethnic slurs," and "publicly telling offensive jokes."
As we stated at the time, "speech that makes others 'uncomfortable' is in large part what the First Amendment exists to protect." Moreover, the policy's provision that conduct would be evaluated from the complainant's perspective directly contradicted harassment law, which requires that claims of harassment be evaluated from the perspective of a reasonable person—not the most sensitive possible person—in the victim's position. Finally, we noted that the policy's examples of prohibited conduct explicitly included protected speech, such as telling offensive jokes.
Shortly after we published the April 2009 Speech Code of the Month on our website, I was contacted by SJSU housing administrator Michael Palmieri. Mr. Palmieri expressed that he wanted to help reform the speech codes maintained by SJSU's housing department, and he and I began a dialogue about free speech on campus. After almost a year of working with other administrators in the housing department, Mr. Palmieri recently contacted me again with good news: SJSU's housing department revised not only the harassment policy that drew FIRE's attention, but also a posting policy that previously required window displays to be "acceptable for public display, with due consideration given to the diverse population of the residential community."
The new harassment policy for SJSU's residence halls now provides only that
Any form of activity, whether covert or overt, that creates a threatening or harassing environment for any UHS resident, guest, or staff member will be handled judicially and may be grounds for immediate disciplinary action, revocation of the Housing License Agreement, and criminal prosecution.Although FIRE still has modest concerns with this policy from a free-speech standpoint (it is unclear how "covert" activity could be truly harassing or threatening since, to constitute legally unprotected expression, harassing or threatening speech must be fairly severe and obvious), it is drastically better than its predecessor, which posed a serious threat to free speech.
Many thanks to Michael Palmieri and to Stephanie Hubbard, SJSU's Associate Director for Residential Life, for bringing about these vital policy changes. We at FIRE are always very happy to see administrators who care about students' free speech rights and who work to protect those rights on campus. In fact, we have a new publication aimed at administrators who are interested in improving the free-speech climate on their campuses; we call it our handbook for Correcting Common Mistakes in Campus Speech Policies. It is available for free download here.
February 6th, 2010
Federal judge dismisses suit filed by Tony Alamo followers
Members claimed Arkansas state agency infringed on their religious rights when it seized children from their compound.
February 6th, 2010
It's not every week that FIRE announces the filing of an amicus brief with the U.S. Supreme Court in a case that will have crucial implications for students around the country, so first things first: Check out FIRE's brief in support of freedom of association in Christian Legal Society v. Martinez and see just what is at stake in this landmark case. And if you normally cringe at the thought of reading legal briefs, David French gives it a ringing endorsement at Phi Beta Cons—calling it "chicken soup for the constitutional litigator's soul." Thanks to Students For Liberty for joining FIRE on the brief.
Also this week, Andrew Sullivan highlighted Greg's Reason article in his blog at The Atlantic. Don't just take Sullivan's word for it that Greg's piece is good reading—go to Reason.com and check it out for yourself.
Meanwhile, at Pajamas Media, Robert covers the eyebrow-raising efforts of the University of Illinois (UI) administration to thwart a student group promoting the restoration of UI's former Chief Illiniwek mascot, as shown through e-mails obtained through the Freedom of Information Act. Mike Adams, at Townhall.com, chimes in on Temple University's efforts to collect extra fees from the student group that hosted Dutch politician Geert Wilders last fall. (The blog Pa Water Cooler has some additional commentary on it as well.) FIRE's case at the University of Minnesota is front-page stuff at the Education Reporter, and Erica Perez of California Watch covers FIRE's fight for freedom of the press at Los Angeles City College along with the Student Press Law Center via CALIFORNIAWatchBlog.
February 5th, 2010
Rowdy W.Va. student basketball fans under fire
University official warns students after profanity at game reaches such volume it was heard on national TV.
February 5th, 2010
Court of Appeals Divides on First Amendment Protection of Students’ Fake MySpace Profiles
Can a school punish students for online speech that parodies the principal by joking about his sexual behavior and penchant for illegal drugs? Two strikingly similar cases concerning a school's ability to regulate online speech yielded two different decisions by the same court. Yesterday, separate panels of the United States Court of Appeals for the Third Circuit decided Layshock v. Hermitage School District and J.S. v. Blue Mountain School District. These cases involve speech by students at a high school and a middle school, respectively. Although the government has a much greater ability to regulate speech at these educational levels than in the college setting, these decisions may forecast some ways in which courts will approach online speech at colleges.
In both cases, the student at issue had created fictitious MySpace.com profiles of their respective school principals, attached a photo of each principal taken from the school's website, and described the principal in vulgar and derogatory ways. In both cases, the student was punished by the school as a result of that speech, made on a computer off of school grounds. Yet, in only one of the cases did the court find the school's regulation of that speech to be a violation of the First Amendment. The crux of the difference is whether the court found that the speech could reasonably cause a "substantial disruption" to the school.
In J.S., a middle school student was suspended for her creation of her principal's fictitious MySpace profile, which contained such witticisms as, "For those who want to be my friend, and aren't in my school I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife who looks like a man." The principal's wife is a guidance counselor at the school. In Layshock, a senior in high school was suspended, placed in a special education class, and banned from extracurricular activities for his parody MySpace profile, which contained a question and answer portion, in which the principal was described as being a "big steroid freak" and in which the size of his penis was belittled.
Both panels applied the fairly speech-protective test articulated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), where the Supreme Court held that high schools and middle schools can regulate speech if it may reasonably cause a "substantial disruption" to school activities. Although lewd or profane speech made at school is unprotected by the Supreme Court's decision in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the panel in Layshock deemed Fraser inapplicable to speech that was not sufficiently connected to the school. The school had not argued that Layshock's speech caused a substantial disruption, and the panel therefore concluded that Layshock's punishment was unconstitutional. According to the court of appeals:
It would be an unseemly and dangerous precedent to allow the state in the guise of school authorities to reach into a child's home and control his/her actions there to the same extent that they can control that child when he/she participates in school sponsored activities. Allowing the District to punish Justin for conduct he engaged in using his grandmother's computer while at his grandmother's house would create just such a precedent and we therefore conclude that the district court correctly ruled that the District's response to Justin's expressive conduct violated the First Amendment guarantee of free expression.
In direct contrast, the J.S. panel did find that the middle school student's vulgar and potentially defamatory mockery of her principal was not protected speech. This panel did not need to decide whether the lewd speech standard in Fraser applied because the profile was deemed unprotected even under Tinker. The court held that the "minor inconveniences" that had occurred, including students chatting about the profile during class or viewing the profile, were not substantial, but that the school was reasonable in foreseeing future substantial disruption. According to this panel:
However, the School District also argues that, given the immediate impact of the profile on the Middle School, absent McGonigle's quick corrective actions to curb its effect, the profile's potential to cause a substantial disruption of the school was reasonably foreseeable. It is apparent that the underlying cause for McGonigle's concern about the profile was its particularly disturbing content, not a petty desire to stifle speech critical of him, and we proceed with our analysis with this in mind. Therefore, we are sufficiently persuaded that the profile presented a reasonable possibility of a future disruption, which was preempted only by McGonigle's expeditious investigation of the profile, which secured its quick removal, and his swift punishment of its creators. We are especially concerned about the profile's blatant allusions to McGonigle engaging in sexual misconduct....
In some ways, it is difficult to reconcile the two outcomes in this case, where speech of a similar nature was deemed protected by one panel and punishable by another panel. Perhaps the difference lies in the fact that punishable speech occurred at a middle school, where students are less mature and school activities are therefore more easily disrupted. A middle school also has a greater interest in instilling values of respect in younger students. The Third Circuit might be wise to rehear both cases as an entire court so as to alleviate any inconsistencies.
Of course, these cases are not controlling upon online speech made by college students, as college students are afforded much greater First Amendment protections. But, it is encouraging that the courts seem inclined to give more protection to speech made off of school grounds, so as not to reach too far into the extracurricular speech of students. We hope that when courts are confronted with cases involving college students criticizing administrators, they remember that high schools and middle schools are endowed with more deference to teach values and encourage students to respect authority than colleges have, instead of blindly applying K-12 precedent dealing with children to the adults who populate our colleges and universities.
February 5th, 2010
Patent Office Grants EFF Request for Reexamination of Dangerous VOIP Patent
San Francisco - The Electronic Frontier Foundation (EFF) has won reexamination of an illegitimate patent on voice-over-Internet protocol (VoIP) that could cripple the adoption of new VoIP technologies.
A company named Acceris Communications Technologies, now C2 Communications Technologies, was awarded the bogus patent for hardware, software, and processes for implementing VoIP using analog telephones as endpoints -- covering many telephone calls made over the Internet. EFF and the law firm Fenwick & West LLP filed a reexamination request showing that both a prior patent and published reference materials described the underlying technology long before Acceris made its claim. Today the United States Patent and Trademark Office (USPTO) granted EFF's reexamination request, ruling that there were substantial new questions of patentability.
"Our American patent system is meant to encourage invention and innovation," said EFF Legal Director Cindy Cohn. "Undeserved patents instead serve to quash competition and hurt business and consumers."
"We are pleased that the USPTO agrees with the substantial new questions of patentability raised in EFF's request, and we look forward to the USPTO's ultimate decision on this patent," said Nikhil Iyengar of Fenwick &West.
The challenge to this patent is part of EFF's Patent Busting Project, which combats the chilling effects of bad patents on the public and consumer interests. So far eight patents targeted by EFF have been busted, invalidated, narrowed, or had a reexamination granted by the Patent Office.
For more on EFF's Patent Busting Project:
http://www.eff.org/patent/
Contacts:
Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org
Nikhil Iyengar
Fenwick & West LLP
niyengar@fenwick.com
February 5th, 2010
Voter ID Battles on the Horizon
The fight to protect voting rights celebrated a victory last fall in the Indiana State Court of Appeals. There, the court struck down what has become known as the strictest voter identification law in the country.
But it’s an election year again, and, as Tova Wang points out at TPM, it's not over in the Hoosier state.
An Indiana state court recently struck down the state's voter ID law, the most restrictive ID law in the country, and the Indiana State Supreme Court has just announced it will hear arguments on appeal March 4.
And that's not the only place voter ID laws are cropping up:
At least nine states and a city in Massachusetts (of all places!) are considering bills introduced in January 2010 that make identification requirements for voting more strict and/or require proof of citizenship in order to register to vote. As usual, the debates are partisan. This is particularly true in South Carolina where it is estimated that 178,000 South Carolinians do not have the photo identification they would need to vote under the proposal.
There has yet to be any proof of significant voter fraud, but it seems to be political concerns, not principle, pushing these initiatives forward.
Instead of working to suppress the votes of American citizens, perhaps these legislators could help fix the real problems in the nation’s flawed voter and electoral systems--systems that are integral to our democracy.
February 5th, 2010
Southwestern College Accreditation in Jeopardy; ‘Culture of Fear and Intimidation’ on Campus
Earlier this academic year, Southwestern College (SWC) in California banned three professors from campus and put them on administrative leave because they joined with students who took a campus protest outside of SWC's unconstitutional free speech area—a mere patio (see map)—to a more visible and audible location. Free speech zones such as this one are plainly unconstitutional and have been soundly defeated in court time after time. The professors were reinstated just two days after FIRE intervened in the case. Nevertheless, this case is not over so long as the "free speech patio" remains in place and SWC violates the First Amendment by keeping this policy on the books. Meanwhile, SWC has even bigger problems on its hands, being on probation from its accreditors because of ongoing reports of a "culture of fear and intimidation" on campus.
In a Progress Report in June 2004, SWC agreed to focus on several concerns identified during the accreditation renewal process, including "supporting an environment of trust and respect for employees." More than five years later, SWC reportedly has failed to establish such an environment. According to the confidential "Evaluation Report" (PDF) prepared by SWC's accreditation team in October 2009, "tension between the Superintendent/President [Raj Chopra] and members of the college community has distracted the institution from ongoing improvement efforts for several years."
The accreditation team from the Western Association of Schools and Colleges consisted of 10 administrators from other community and junior colleges, including Lawrence Bradford, Vice President of Student Services at Los Angeles City College (LACC). Bradford's role here is interesting, since LACC is facing accreditation problems of its own—so severely, he told the Los Angeles Times, that LACC hardly has time to deal with the First Amendment concerns brought up by FIRE and the Student Press Law Center last month regarding LACC's treatment of the school's student newspaper.
As for SWC, the accreditation team recommended 10 areas for improvement, including two items that deal with lack of trust and fear of retaliation among faculty and staff.
Recommendation 8 reads, in relevant part:
The team recommends that the college set as a priority fostering an environment of trust and respect for all employees and students that allows the college community to promote administrative stability and to work together for the good of the college. (p. 6)
The problem appears to go back quite a long way but is at a particularly bad point right now. Recommendation 2 states:
In 1996 and 2003, the college was given similar recommendations regarding issues of trust and creating an environment of mutual respect. Faculty, staff, and students reported to the visiting team [in 2009] that they operate in a "culture of fear and intimidation" and "lack of trust." ... Employees stated that they were fearful for their jobs and that an atmosphere of distrust permeated the college. This negative climate was attributed to the Superintendent/President's action to terminate some staff members following a vote of no confidence by both the faculty and classified unions. ... The long-standing nature of the recommendation, dating back over ten years, suggests that the negative climate is not the doing of the Superintendent/President [who was hired in 2007], but the current administration has not succeeded in addressing the recommendation. (pp. 8-9)
In addition, under the "Human Resources" standard, the team notes:
A significant finding, based upon numerous interviews, is that there is no evidence the faculty and staff feel the college subscribes to, advocates, or demonstrates integrity in the treatment of its administration, faculty, and staff. (p. 28)
Finally, under "Decision-making Roles and Processes," the team states:
Through conversations with all employee groups, it has been reported that the oppressive climate on campus has not improved in ensuing years [since 2003]. Several faculty members commented to the team that they feared reprisal for their words and actions. Examples of this allegation were supplied by faculty via conversations and at the well-attended forums held during the visit [October 5-8, 2009]. Several faculty members cited an environment in which nontenured faculty, middle-level managers, and classified staff feared for their jobs if they spoke freely about an issue that they perceived to be a problem or if they complained about particular issues. ... The perception by some administrators is that eleven or twelve individuals are causing the strife between the college and the administration. ... The obvious adversarial climate that exists on campus is destructive and disruptive to student learning. (pp. 33-34)
It looks like Southwestern College has a long way to go. One of the first things that Superintendent/President Chopra should do is immediately and publicly suspend enforcement of SWC's unconstitutional policies, especially the "free speech patio" policy. Every day that this policy remains in force is a further violation of the First Amendment rights of the members of the SWC community. A public announcement of this action would go a long way toward restoring trust on campus.
If Chopra refuses to do this, it is incumbent upon the Board, consistent with its duty to establish policy, to immediately withdraw SWC's unconstitutional policies and thus avoid further embarrassment and potentially expensive First Amendment lawsuits. Every day counts.