Laura Beltz, Foundation for Individual Rights in Education (FIRE)
Chances are you’ve posted or sent something online that someone, somewhere, could consider “annoying.” Although a boastful text about a sports rivalry or a sneaky “rickroll” could certainly cause annoyance, online speech, like speech in all other contexts, doesn’t lose constitutional protection just because it annoys someone. In spite of this, Mansfield University of Pennsylvania maintains a policy that bans students from sending “annoying” messages. Because such a subjective, undefined term includes a great deal of protected speech, the policy is our Speech Code of the Month for August.
Mansfield’s “Acceptable Use Policy” says users of its information technology resources are expected to “[n]ever send harassing, annoying, threatening, defamatory, offensive, or fraudulent messages or images to others.” Generally, harassment, threats, defamation, and fraud are not constitutionally protected, but banning any subjectively annoying or offensive messages includes just about any and all speech.
There’s no exception to the First Amendment for annoying expression, and as a public university, Mansfield is legally obligated to protect students’ First Amendment rights. But with this policy, students are subjected to the whims of whatever administrator applies this extremely broad standard. And since a policy this broad must be violated hundreds of times every day by students, enforcement would have to be selective. Even without enforcement, the policy is likely to create a chilling effect on expression.
So how did such an unreasonable policy get written? My guess is that the university wanted to limit the sort of “annoying” speech that actually disrupts a person’s use of information technology resources, like sending “spam” emails in such high volume that the recipient can’t even use their email account, or legitimate harassment.
Instead of trying to combat this sort of disruptive use of technology by implementing unconstitutionally overbroad bans, the university should ban use that materially and substantially disrupts another individual’s use of those resources. And instead of banning all “offensive” messages and postings, the policy should limit bans on the content of speech to that which is not protected by the First Amendment, such as harassment, true threats, and defamation, as legally defined.
For an example of a school that gets this right, take a look at the University of North Carolina at Charlotte, an institution that earns FIRE’s highest, overall “green light” speech code rating. Its “Standard for Responsible Use” policy bans technology use that “interferes with the work of other students, faculty, or staff or the normal operation of the university’s computing systems,” as well as use that constitutes “invasion of privacy, harassment, defamation, threats, intimidation, or discrimination on a basis prohibited by federal or state law.” In doing so, UNC Charlotte narrowly targets the sort of speech and conduct that is not protected by the First Amendment.
Mansfield would do well to follow suit and remove its ban on “annoying” or “offensive” messages. Otherwise, students will continue to be subjected to the potential application of an exceedingly broad policy and the infringement of their First Amendment rights.
If you believe that your college or university’s policy should be a Speech Code of the Month, please email firstname.lastname@example.org with a link to the policy and a brief description of why you think attention should be drawn to this code.
If you are a current college student or faculty member interested in free speech, consider joining FIRE’s Student Network or Faculty Network to connect with a coalition of college students and faculty members dedicated to advancing individual liberties on their campuses. If you’re concerned about a potential violation of your rights on campus, contact FIRE for more information.
Used with the permission of the Foundation for Individual Rights in Education.
Laura Beltz is Senior Program Officer, Policy Reform at the Foundation for Individual Rights in Education. Laura is a Philadelphia-area native who graduated from Penn State University with a B.A. in English through the Schreyer Honors College. She is also a graduate of the University of Pennsylvania Law School, and is a member of the Pennsylvania State Bar. At Penn Law, Laura was an Associate Editor of the Journal of Constitutional Law. After spending her first summer of law school as a legal intern for FIRE, Laura worked as a legal intern at the National Constitution Center.