IP: ACLU slams Princeton for banning political speech online

[Dave Farber <farber () central cis upenn edu>]

From: declan () well com (Declan McCullagh)


We broke this story in HotWired's The Netizen last month and it showed up
here on fight-censorship-announce -- Princeton has banned online political
speech in a kind of duplicitious dodge:
  http://www.hotwired.com/netizen/96/30/campaign_dispatch3a.html


Now the ACLU has written a letter pointing out that Princeton's policies
violate state law -- and the group is considering legal action if the
university doesn't get a clue, pronto.


-Declan



---


Date: Thu, 15 Aug 1996 17:29:11 GMT
To: fight-censorship () vorlon mit edu
Subject: Full Text of ACLU Letter to Princeton re: Computer Use Policy
From: beeson () usa pipeline com (Ann Beeson)


AMERICAN CIVIL LIBERTIES UNION
NATIONAL LEGAL DEPARTMENT
132 West 43rd Street
New York, New York 10036
------------------------------


August 15, 1996


Mr. Harold Shapiro
President                 BY FACSIMILE, E-MAIL, & REGULAR MAIL
1 Nassau Hall
Princeton University
Princeton NJ 85044


RE: Computer Use Policy


Dear President Shapiro:


In response to complaints we have received from members of the Princeton
University community, we write on behalf of the American Civil Liberties
Union (ACLU) and the American Civil Liberties Union of New Jersey (ACLU-NJ)
to urge you to reconsider the policy prohibiting members of the University
from using the Princeton's computer network for "political purposes."  We
believe that the policy is based on a misunderstanding of the law regarding
the University's tax-exempt status, and restricts free speech and academic
freedom rights guaranteed by Art. I, par. 6 of the New Jersey Constitution.


Princeton University's decision to offer its faculty, staff and students
widespread access to the University's computer network and the Internet
greatly expanded the resources available for academic research.  It also
provided a new and exciting forum for the free communication of ideas.  In
contrast, Princeton's decision to prohibit the use of the network for
"political purposes" unjustifiably interferes with the right of the
University community to exchange ideas freely, regardless of their content.


Princeton's current computer use policy holds that "the Computing and
network resources of the University may not be used by members of the
University community for commercial or political purposes or for financial
gain . . . ."  Trustees of Princeton University, Rights, Rules,
Responsibilities 11 (1993) (emphasis added) (hereinafter "Rights," attached
as Appendix A).  On July 19, 1996, the Office of the General Counsel sent
an e-mail to members of the University community warning them that any use
of the Internet or computer network for "any participation in, or
intervention in, (including the publishing or distributing of statements),
any political campaign on behalf of (or in opposition to) any candidate for
public office" would result in disciplinary action.  See Office of the
General Counsel, "Internet use and Politics," E-mail of July 19, 1996,
attached as Appendix B.


We understand that the rationale behind the computer use policy is a
concern that the University will lose its tax-exempt status, under Internal
Revenue Code 501(c)(3), if it allows members of the University community to
use the computer network for political purposes.  We believe that this
concern is misplaced, based on the policies and rulings of the Internal
Revenue Service.


Internal Revenue Code 501(c)(3) provides that an educational organization
will be tax-exempt as long as it "does not participate in, or intervene in
(including the publishing or distributing of statements), any political
campaign on behalf of (or in opposition to) any candidate for public
office."  The Internal Revenue Service has clarified that in order to
constitute participation or intervention in a political campaign, the
political activity must be that of the University itself and not the
individual activity of its faculty, staff, or students.  See Internal
Revenue Service, Exempt Organizations Technical Institution Program for
1993 426-27 (1993), attached as Appendix C.  Thus, any personal
communication by University members over the computer network cannot
threaten Princeton's tax-exempt status.


The fact that Princeton provides the computing facilities over which the
communication takes place does not change this conclusion.  The Internal
Revenue Service has stated that a principal factor in determining whether
the provision of university facilities to a group engaged in political
activities will constitute participation in a political campaign by the
university under Internal Revenue Code  501(c)(3), is whether the
facilities are provided on an equal basis to groups using them for
non-political reasons.  Id. at 427.  Princeton provides fair and equal
access to the computer network, including e-mail and World Wide Web access,
to all University members, and allows use of the network for a variety of
non-political purposes.  See Rights at 11.  Thus, political speech over the
network will not jeopardize Princeton's tax-exempt status.


Even use of the computer network for political purposes in connection with
a particular course would not jeopardize Princeton's 501(c)(3) status.  The
Internal Revenue Service has previously held that a university that
required its students in a certain political science course to participate
in a political campaign of the student's choice for 60 to 80 hours during
the semester was not participating in political campaigns within the
meaning of Internal Revenue Code 501(c)(3).  See Revenue Ruling 75-512,
1972-2 C.B. 246, attached as Appendix D.


In addition, student organizations are able to publish political views on
the computer network without threatening Princeton's tax-exempt status.
The Internal Revenue Service has held that a university was not
participating in a political campaign within the meaning of Internal
Revenue Code 501(c)(3), when statements made in support of political
candidates appeared on the editorial page of a student newspaper.  This was
true despite the university's provision of financial support and facilities
to the newspaper, as long as the views expressed in the newspaper were
clearly those of the students and not of the university itself.  See
Revenue Ruling 75-513, 1972-2 C.B. 246, attached as Appendix E.


Accordingly, Princeton University does not risk its tax-exempt status by
allowing University members to use its computer network for political
purposes.  We recognize that Princeton has a legitimate interest in
ensuring that the individual views of its members not be mistaken for
official positions of the University.  At most, the only permissible
regulation that Princeton might desire is one requiring a member of the
University community, who uses Princeton's name in a way that could lead a
reasonable person to interpret the author's statement as an official
position of the University, to include a disclaimer clarifying that the
opinions expressed over the computer network are those of the author alone.
 Compare Rights, "Guidelines Relating to the Tax-Exempt Status of the
University and Political Activities," at Section 3.


Because there exists no legitimate reason for Princeton's blanket
prohibition of political speech over the computer network, it is an
unjustified, content-based restriction on the free expression rights of
students, faculty and staff.  Therefore, the policy is not only unworthy of
a great University like Princeton, it is in violation of Art. I, par. 6 of
the New Jersey Constitution.


Although Princeton University is not a state university, the New Jersey
Supreme Court has held the Princeton University campus to have been
sufficiently devoted to expressive uses so as to require the University to
honor the State constitutional guarantee of free expression.  See State v.
Schmid, 84 N.J. 535, 564-65 (1980); see also New Jersey Coalition Against
the War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326 (1994)
(holding that regional shopping malls were sufficiently open to expressive
use so as to extend state constitutional right to leaflet).  Princeton's
computer facilities are as much a part of the Princeton "campus" as are the
lawns and buildings.  Princeton may not constitutionally restrict its
students, faculty, and staff from engaging in political speech over the
Internet any more than it could prohibit them from engaging in such speech
in the dorm rooms, classrooms, halls, lawns, and offices of the campus.


Political expression has always received the highest degree of
constitutional protection.  See Buckley v. Valeo, 424 U.S. 1, 14 (1976).
The Constitution was written with the intention to protect from censorship
those who wish to express their political beliefs and their support for
political candidates.  Indeed, "where political speech is involved, our
tradition insists that government `allow the widest room for discussion,
the narrowest range for restriction.'"  State v. Miller, 83 N.J. 402, 412
(1980).  As a school with a well-deserved reputation as a leader in
American higher education, Princeton should be the first to promote and
defend academic freedom and freedom of expression within its community, to
the very limits of the law.


The computer use policy, read literally, also infringes upon the free
speech rights of Princeton faculty, staff, and students to receive
information.  Lamont v. Postmaster General, 381 U.S. 301, 307 (1965) (right
to receive information precludes government from labeling certain
publications "propaganda") (Brennan, J., concurring); Griswold v.
Connecticut, 381 U.S. 479-482-83 (1965) ("right of freedom of speech . . .
includes not only the right to utter or print, but the right to . . .
receive, the right to read . . . and freedom of inquiry, freedom of
thought, and freedom to teach . . . .  Without these peripheral rights the
specific rights would be less secure."); Kreimer v. Bur. of Police for Town
of Morristown, 958 F.2d 1242, 1350-55 (3d Cir. 1992) (listing cases).  This
is because the University's computer facilities, although located on the
Princeton campus, are a gateway to a virtual, worldwide community.  See
ACLU v. Reno, 1996 U.S. Dist. LEXIS 7919 (E.D. Pa., June 11, 1996).  They
provide a unique means for students, faculty, and staff to access
information on virtually any topic, including politics.


Finally, the computer use policy is in conflict with other University
policies and practices.  Princeton recognizes that


     "the central purposes of a University are the pursuit of truth, the
discovery of new knowledge through scholarship and research, the teaching
and general development of students, and the transmission of knowledge and
learning to society at large.  Free inquiry and free expression within the
academic community are indispensable to the achievement of these goals.
The freedom to teach and to learn depends upon the creation of appropriate
conditions and opportunities on the campus as a whole as well as in
classrooms and lecture halls."


Rights, Introduction to "Principles of General Conduct and Regulations."
With respect to political speech, the University also recognizes that it
has a fundamental responsibility to ensure


    "the opportunity for all members of the University community to
exercise their prerogatives as citizens. . . .  Encouragement of an
interest in public affairs and the furthering of a sense of social
responsibility have long been considered important elements of a liberal
education.  The University continues to consider self-chosen participation
in political and social action by individuals and groups to be a valuable
part of the educational experience it seeks to encourage.  Such activities
on the part of individuals or groups do not, and should not be taken to,
imply commitment of the University to any partisan political position or
point of view."


Rights, Introduction to "Guidelines Relating to Tax Exempt Status."


For all of the above reasons, we strongly urge you to repeal the existing
ban on use of the computer network for political purposes, and we look
forward to your early reply.


Sincerely,


Ann Beeson, Staff Attorney
American Civil Liberties Union
National Legal Department
132 West 43rd Street
New York, New York 10036
(212) 944-9800 x788


David Rocah, Staff Attorney
American Civil Liberties Union
  of New Jersey
2 Washington Place
Newark, NJ  07102
(201) 642-2086


cc:    Office of General Counsel



---


Date: Thu, 15 Aug 1996 17:14:12 GMT
To: fight-censorship () vorlon mit edu
Subject: ACLU Gives Princeton an "F" for Barring Political Speech on its Network
From: beeson () usa pipeline com (Ann Beeson)




AMERICAN CIVIL LIBERTIES UNION
NATIONAL HEADQUARTERS
News Release   August 15, 1996
----------------------------------------------------


Free Speech 101: ACLU Gives Princeton University an "F"
for Barring Political Speech on its Network


FOR IMMEDIATE RELEASE
Wednesday, August 15, 1996


Contact: Ann Beeson, ACLU National (212) 944-9800, x788
David Rocah, ACLU of New Jersey (201) 642-2084


NEW YORK--In a letter sent today to Princeton University officials,  the
American Civil Liberties Union urged them to reconsider a policy barring
students and staff from using the computer network for "political
purposes."


The letter was sparked by complaints the ACLU national office received over
a recent memo from Princeton officials advising faculty, staff and
students, "especially in this year of a presidential election," that the
school's not-for-profit status barred it from allowing use of the computer
network "for political purposes."


The ACLU called this conclusion mistaken, pointing out in its letter that
the Internal Revenue Code specifies that only the University itself is
barred from political activity -- not faculty, staff, or students acting
independently.  In fact, the ACLU said, the IRS has previously held that
statements in support of political candidates appearing on the editorial
page of a student newspaper would not be considered violations of a
university's 501(c)(3) tax-exempt status.


"Because there exists no legitimate reason for Princeton's blanket
prohibition of political speech over the computer network," the ACLU letter
stated, "it is an unjustified content-based restriction on the free
expression rights of students, faculty and staff.  Therefore, the policy is
not only unworthy of a great university like Princeton, it is in violation
of the New Jersey State Constitution."  The letter was signed by ACLU
national staff attorney Ann Beeson and David Rocah, staff attorney of the
ACLU of New Jersey.


"We understand the university's concerns regarding it's tax-exempt status,"
Rocah said.  "But this is free speech 101.  Sadly, Princeton is not making
the grade."


Rocah said the ACLU would consider legal action if the university refuses
to drop its censorship policy.


"Traditionally, college campuses are the center of political discussion and
debate," said Beeson.  "The fact that the debate is taking place on the
Internet does not mean that the speech is any less deserving of
protection."


Beeson added that the policy could bar students and staff from a wide range
of protected expression, including downloading position papers from the
Dole or Clinton website; sending e-mail to their parents urging them to
vote for Ralph Nader; and organizing online discussion groups for  student
chapters of politically active groups such as Greenpeace.   In short, Rocah
said, "Everything that would be acceptable, even welcome, off-line, becomes
off-limits on the Internet."


In its letter, the ACLU called on the school to take a leadership role in
the academic community:  "As a school with a well-deserved reputation as a
leader in American higher education, Princeton should be the first to
promote and defend academic freedom and freedom of expression within its
community, to the very limits of the law," the letter said.


Beeson added that the ACLU  is working to develop model guidelines for
colleges and universities to help sort out the confusion in academia
regarding free expression on the Internet.  Many schools have already put
in place "Appropriate Use Policies" to police student and faculty computer
use, some of which violate rights of free expression, Beeson said.




> From fight-censorship: http://www.eff.org/~declan/fight-censorship/