Chicago State University Professors Fight Back Against University’s Efforts To Shut Down Their Blog (Guest Blog Post)

By Guest Blogger Stephen F. Diamond

Earlier this month, two faculty activists at Chicago State University (CSU) prevailed against a motion to dismiss a lawsuit they had filed in federal court against CSU’s President, Vice President of Labor and Legal Affairs and General Counsel.

The faculty suit claims the CSU officials violated the faculty members’ free speech rights under the First and Fourteenth Amendments when the officials sent the faculty members a “cease and desist” letter demanding they shut down a blog to which they contribute called “CSU Faculty Voice.”

The letter (one of three sent by the University officials) was interpreted by the court as an attempt to enforce both a new University “Cyberbullying Policy” and a “Computer Usage Policy,” although CSU claimed the letter did not specifically threaten to enforce those policies against the faculty.

The court concluded:

It is eminently reasonable to read the letter as a demand to shut down the CSU Faculty Voice blog based on its alleged failure to meet CSU on-line civility standards. It is also eminently reasonable to conclude that those civility standards are the ones memorialized in CSU’s Computer Usage Policy, which requires electronic communications to ‘adhere to the University standards of conduct which prohibit any communication which tends to embarrass or humiliate any member of the community.’ … The same goes for the Cyberbullying Policy, which could be read as prohibiting a series of negative blog posts.

The Cyberbullying Policy prohibits “deliberate or repeated conduct” that “harasses [or] intimidates an individual … or has the effect of substantially disrupting the individual’s daily life via the use of electronic information and communication devices; [ ] the use of information and communication technologies to support a deliberate, repeated, and hostile course of conduct that is intended to harm others; or [ ] intentional and repeated harm through the use of computers, cell phones, and electronic devices.”

The court noted that “[i]t applies to ‘electronic speech,’ including ‘[e]xpressive conduct’ in any form that is conveyed via any means (e.g., tweets, blog postings, and text messages), regardless of whether it is associated with CSU computers.”

The “Computer Usage Policy” requires electronic communications, “including websites and blog posts on the university server,” to “adhere to the University standards of conduct which prohibit any communication which tends to embarrass or humiliate any member of the community.”

One interesting technical twist in the opinion revolves around the location of the blog. It is hosted on Google’s Blogspot service, not on the University’s servers, and that led the University to argue that the faculty did not have standing to complain that they were threatened by the two policies.

But the court noted that while the policy states that it “includes” University servers, “it is not explicitly limited to Internet websites and blog posts hosted on CSU’s server.” Given the procedural posture of the case – a motion to dismiss – the court is obligated to accept the plaintiffs’ factual allegation that the policy could be enforced against the faculty even if the blog were hosted on non-University servers.

In fact, in a footnote, the court challenged the credibility of the University’s position, stating:

With respect to the parties’ arguments about the meaning of the cease and desist letter, the court notes that if the defendants, in fact, have no intention of ever enforcing the Computer Usage or Cyberbullying Policies against the plaintiffs, this case is ripe for settlement discussions.

Obviously the University would not be able to shut down the website physically but it could, of course, exert other forms of pressure on the faculty. In fact, the law suit, filed on behalf of the faculty by the Foundation for Individual Rights in Education’s (FIRE) Stand Up for Free Speech Litigation Project, comes in the midst of significant conflict over free speech and both faculty and students have been engaged in various forms of protest against University policies.

Recently, student leaders filed a lawsuit against CSU officials for alleged interference in student elections after student leaders complained of corruption and mismanagement, a former Vice President for Finance is suing the University after he was fired for complaining about mismanagement, and a whistleblower at the University won a claim for $3.3 million dollars.

FIRE’s litigation project has filed a number of cases across the country in what it calls “an unprecedented national effort to eliminate unconstitutional speech codes from our nation’s public colleges and universities.” FIRE has engaged the Seattle law firm Davis Wright Tremaine and Davis Wright senior partner Robert Corn-Revere as counsel to the student and faculty plaintiffs. Additional cases have been filed by FIRE against Texas Tech University, Iowa State University, Western Michigan University, the University of Hawaii, and Ohio University.

The CSU case appears to be the first filed by FIRE involving online activity by faculty. It comes in the wake of recent controversy over the growing use of social media by University faculty and staff.

At the University of Kansas, a faculty member was suspended for a controversial tweet he posted about the National Rifle Association in the wake of a deadly shooting incident at the Navy Yard in Baltimore, Maryland in 2013. Soon after the suspension, the Kansas Board of Regents, which manages the University of Kansas and Kansas State University, adopted a controversial “social media” policy – one of the first in the country – that was viewed widely as limiting academic freedom. The Regents modified the policy somewhat last year but the new language still allows the university to fire or discipline staff or faculty who use social media in a manner deemed “contrary to the best interests of the employer” or for any “improper” use of social media.

Controversy also erupted last year at the University of Illinois when a professor recruited from another university was denied a teaching position by the University’s board of trustees when the trustees learned of his string of highly controversial tweets about Israeli policy towards Palestine. The professor, Steven Salaita, has now sued the University as well.

Eric’s comment: I understand why universities are adopting “social media policies” and “cyberbullying policies.” However, these policies cannot be applied against tenured/tenure-track faculty without substantial care and nuance. Otherwise, these policies can become a backdoor way of undermining the academic freedom afforded by tenure. It’s nice to see that this court recognizes the dangerous nature of the university’s passive-aggressive response to criticism by its faculty.

Case citation: Beverly v. Watson, 2015 WL 170409 (N.D. Ill. Jan. 13, 2015). The complaint.