Free Speech in the Digital Age
Can students post any d#!n thing they f#@*ing want online?!
Trent Gibson
The Signal
A disgruntled student races home after receiving an unfair grade on an exam.
Fists clinched, he walks in the door of his small, one bedroom apartment and sits down at his computer. He proceeds to type a hateful, disturbing Facebook post on the professor’s personal page. As his knuckles pop and a bead of sweat drips down his brow, he hits ‘enter.’
And with the stroke of a key, everything can change.
Free speech in the digital age is a complex issue, especially when a university is concerned. The topic involves numerous aspects, including First Amendment rights, the student code of conduct, and social civility in online interaction.
The First Amendment does not protect all types of speech. The First Amendment protects U.S. citizens against government suppression of expression. On the other hand, it does not prohibit private companies, organizations or institutions from suppressing freedom of expression to protect their own interests.
Much of the speech considered inappropriate, controversial or even contentious is considered protected on state-funded college campuses. However, the First Amendment does not protect against obscenity, fighting words, defamation, perjury and true threats.
All universities, including the University of Houston–Clear Lake, operates within a student code of conduct that is the framework for students’ rights. The UHCL Students Rights and Responsibilities states, “The rights of free speech, expression and association, as defined by the Constitution of the United States and developed by
statutory laws and judicial decisions, are guaranteed to every member of the university community.”
“Students are subject to applicable law and university policy regardless of whether they are interacting in person or on Facebook,” states Eric Bentley, associate general counsel for the University of Houston System.
With communication becoming increasingly carried out on the Internet, it is more common to see students or employees posting unfavorable, and sometimes vulgar, comments on an organization or company, social media page.
A public forum is a United States constitutional law term that describes a government-owned property that is open to public expression and assembly. Distinguishing between what does and does not fall in to the category of what can be considered a public forum can be a gray area.
There are three forms of a public forum: traditional, limited and nonpublic. An example of a traditional public forum is a park or a street corner, places that have historically been used for purposes of expression and assembly. An example of a limited public forum would be town halls or a city fairground. These are limited public forums because the government opened them up for assembly and expression. Nonpublic forums would include airports or bus stations because they are designated for purposes other than expression.
UHCL is a public university. As such, the school operates under a different set of guidelines than private institutions. Public institutions are owned and run by the state and must adhere to government rules and regulations. Private universities are owned and run by a group, such as a religious organization, and therefore, the rules of government suppression do not apply.
Under the UHCL Student Code of Conduct, there is currently no rule or regulation regarding the use of profane, obscene or vulgar language. It does address similar issues, such as verbal abuse, threats, intimidation, harassment, coercion and/or other conduct that threatens or endangers the health or safety of any person.
UHCL’s reaction to posts on an online site, such as Facebook, would depend on whether the Facebook page belonged to the student or to the university. For example, if a student were to post about a specific professor on his or her personal Facebook page, the university would not necessarily have grounds for legal action.
Social networking companies such as Facebook and Twitter are private entities and do not adhere to government policies on free speech. If the student is expressing his displeasure with a professor’s class, he is within his rights, exercising his freedom of speech. However, if in exercising his displeasure he violates Facebook’s terms of service, then Facebook would have the authority to take action, such as removing the posting or shutting down the profile.
Additionally, if the posting was found to cross the line into threatening speech that was disruptive to the school or invaded the rights of others, the university could pursue legal action.
“The easier part of the question is when a student is doing something purely on personal time, maybe a WordPress blog or a Tumblr that is not created on a school computer or during class time,” states Frank LoMonte, executive director of the Student Press Law Center. “Even if the student is doing something pretty distasteful, that’s constitutionally protected speech. Unless it rises to the level of actually trying to cause a disturbance on the campus or otherwise breaking the law, then it’s beyond the college’s jurisdiction to punish, even if it seems unprofessional and uncivil.”
“Although there are legal issues that must be considered, the university reserves the right to analyze social media postings, Blackboard activity and school emails to ensure the activity is in compliance with applicable law and university policy,” Bentley states. “The university handles such matters on a case-by-case basis and will take appropriate action as necessary. Students, for the most part, enjoy First Amendment protection for their most social media activity, but there are limits and restrictions.”
If a student decided to post a vulgar, obscene or potentially libelous remark that creates a disturbance on a UHCL organization social media page, that student could be subject to university rules on the matter.
“We don’t know the answer as to whether something like the comment board on the college’s Facebook page is or is not a public forum,” states LoMonte. “I think there is a distinction between speech that you can pull down and speech that you can punish. So if a student just came onto the university’s Web page comment board and posted a comment that was just a string of F-words, that would be speech that I think you would be under no legal duty to leave up on the website, but I’m not sure it is ‘substantially disruptive’ so that it could result in suspension or expulsion from the college.”
At the classroom level, a student could be “subject to disciplinary sanctions” per the UHCL student code of conduct for “disruption or obstruction of teaching, research, administration, disciplinary proceedings, or other university activities…” The same rules would apply if the student sent a hateful email to a professor using UHCL webmail, as in the Code of Conduct concerning “physical abuse, verbal abuse, threats, intimidations, harassment, coercion and/or/other conduct which threatens or endangers the health or safety of any person.”
While media and technology are changing every day, so are the laws.
“Courts are constantly analyzing First Amendment claims in real time based on new technology, and the courts’ decisions become known as common law,” Bentley said. “Federal and state laws are also revised or added on a regular basis to keep up with technology.”
