Computer speech no different from other speech

By Ryan Robbins
The Maine Campus

Last week's filing of a civil rights lawsuit by the state against University of Maine student Casey Belanger for threatening another student on FirstClass raises concerns for how the First Amendment relates to computer networks.

The attorney general's office is seeking a permanent injunction against Belanger after he threatened to shoot a student in the head. The student had taken offense to Belanger's resume on FirstClass, in which Belanger said he disliked "fags," and posted it to four discussion groups without Belanger's permission. The state wants to restrict Belanger's access to FirstClass, leaving it up to the university to decide when -- if ever -- he can go back online. UMaine conduct officer Bill Kennedy has already barred Belanger from using the system.

What the attorney general's office is seeking and what the university has already done is troubling. The university has gone beyond punishing Belanger's threatening conduct. It has wrapped duct tape around his mouth, effectively engaging in prior restraint of his First Amendment right to free speech.

In the 1931 case Near vs. Minnesota, the U.S. Supreme Court struck down a Minnesota law that allowed courts to issue restraining orders against publications that were judged to be "public nuisances." Four years earlier a Minnesota district court had enjoined publication of the Saturday Press, a small weekly Minneapolis newspaper that had attacked officials in city government. The Minnesota court ruled that Jay M. Near and Howard Guilford, the paper's publishers, couldn't publish again unless they convinced a court they wouldn't engage in similar conduct.

In striking down the Minnesota law, Chief Justice Charles Evans Hughes wrote that the law was unconstitutional because it went beyond punishing the Saturday Press; the law constituted censorship. Prior restraint, Hughes wrote, is clearly a violation of the First Amendment.

Of course, the university doesn't see it this way. It claims that somehow speech on computer networks is different from other forms of speech. The faculty senate, like all good bureaucratic do-nothing, pseudo-government organizations on campus, has appointed a committee (what else is new?) to examine the university's anti-discrimination and harassment policies with regard to FirstClass. Interim equal opportunity director Evelyn Silver told the Bangor Daily News that although people think "the First Amendment covers everything on the electronic network," it doesn't.

Why shouldn't the First Amendment cover electronic networks, especially those owned by the university, which is an entity of the state of Maine? For some reason, the university thinks that using computer networks is a privilege, not a right. If it is a privilege, why can any student or employee get an account? Saying that using the system is a privilege does not make it so. The nature of FirstClass, with its various discussion groups, makes it akin to the village green. If Belanger had made his threats at a public meeting, would the state and the university seek to bar him from attending any more public meetings? If he had written threats on a bathroom stall with a magic marker, would the university prohibit him from using the bathroom and magic markers?

Of course not. To do so would be preposterous.

By taking away Belanger's access to FirstClass, the university has taken away his voice. Although he is the talk of FirstClass, he is not allowed to read what people are saying about him, nor is he allowed to reply -- the most fundamental of all human rights. He could exercise free speech through other avenues, but what would those be? As he told the Bangor Daily, FirstClass is "where everything is going on right now." No wonder: FirstClass is the epitome of free speech.

Perhaps the university and the state should read the words of William Blackstone, an English jurist who advocated for free-speech rights without prior restraint long before the Bill of Rights:

The liberty of the press "consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity."

This column appeared in the Nov. 3, 1997, edition of The Maine Campus.
Copyright 1997, Ryan R. Robbins.