More on the UNC-W email brouhaha

[James Maule]

I haven't posted up the follow to the fact-laden post I submitted the other day, in part because it is very long. The follow is a compilation of comments from persons on the other list, almost all of which say (with greater or lesser elegance and articulation) what Greg has said. At the risk of starting more litigation, what amazes and enlightens me is that the student's father apparently is a lawyer... someone I would expect would exercise better judgment and a bit of parental counseling but then again perhaps that's where his daughter acquired her egocentric perspective on the obligations of others to satisfy her world view. In terms of the constitutional issue, the rather interesting though surely not novel aspect of this brouhaha is the extent to which there always seem to be places over which someone wants to stretch the umbrella (or penumbra?) of the Constitution, in a manner that generates something that is more code-like than organic. It is also interesting (though again not novel) that both sides appear to believe their constitutional rights have been violated. Jazzed up a bit, this might make for an interesting exam question.

Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)




>>> greg.sisk at DRAKE.EDU 12/24/01 11:49AM >>>
Come on!  As free speech cases go, this has got to be one of the
easiest cases ever to arise; it is not even close to the line.  A
university investigation of such a message is outrageous and a clear
violation of the free speech rights of the faculty member.  Despite
the student's father's lengthy letter attempting to recharacterize
the e-mail response as "libelous" or "abusive," that this is core
protected speech surely is indisputable.  While the e-mail message is
harsh in tone and not something that I would send to a student (as a
matter of my own standards of civility and courtesy), it is quite
mild in comparison with many kinds of messages that the courts
regularly find to be protected speech.

The suggestion that characterizing a student's message as
"unintelligent" or "immature" amounts to libel would be patently
absurd.  Any faculty member who has graded student papers with candor
would be at risk if such evaluations are libelous.  And if implying
that a person's message was "bigoted" in content amounts to libel
(actually, the professor's response does not call the student
"bigoted" or even so characterize the student's message, but rather
recites that "bigoted" speech is constitutionally protected), then
conservative faculty and students would be filing successful libel
suits routinely given how regularly accusations of prejudice (usually
without a basis) are leveled against those who dissent from liberal
orthodoxy on campus.  Indeed, I must say that I have seen worse and
more direct accusations of bias made on this list by one list member
against another.  While I have found such accusations unjustified and
thus to be a breach of the standards of civility for this list, I
would never pretend that they fell outside of the protections
afforded by freedom of expression.

Moreover, it must be emphasized that the professor's message was sent
in response to an e-mail message that the student sent with the
obvious hope of provoking interest and response.  The student can
hardly complain that a response, even a forceful one, was
forthcoming.  As the professor correctly and positively said in the
e-mail, when one makes a controversial public statement, one has
opened oneself to critical response.  The professor makes no overt or
implicit threats in the e-mail and emphasizes more than once that the
student's message was protected speech.  (By contrast, the messages
to this student from other students contained clear threats that are
not protected speech.  But nothing in the father's lengthy diatribe
against the professor demonstrates that the professor endorsed or
aided such threats by others.)  Every time I published something
controversial in the local paper, I know that I will receive letters
or e-mail, even from colleagues, much more strongly worded than the
e-mail here.  To be sure, I like the fan mail better than the
brickbats, but I know that both come with the territory.

If the university is well represented by counsel, administrators
should be hurrying to shut this down and quickly reject the student's
complaint; indeed, it looks to me from the news reports that they
wisely are denying that any investigation is ongoing or that any
penalty will be imposed.  Still, conducting a search of a professor's
private e-mail messages on the flimsiest of grounds remains
troubling.  If it goes to court, this would seem to be a slam-dunk
for the professor and a case in which the university would be
destined to lose and be held liable at least for attorney's fees if
not for other damages.  Will university administrators ever learn?
Will they ever develop the back-bone to protect freedom of expression
that they find distasteful?  That this message became the basis of a
free speech controversy at all is most discouraging.

Greg Sisk


>Jim Maule
>Professor of Law, Villanova University School of Law
>Villanova PA 19085
>maule at law.villanova.edu
>http://vls.law.vill.edu/prof/maule
>President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
>Publisher, JEMBook Publishing Co. (www.jembook.com)
>Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
>Maule Family Archivist & Genealogist (www.maulefamily.com)
>
>
>
>Here's the message that a Univ. of North Carolina at Wilmington professor
>wrote back to socialist student Rosa Fuller after she sent him an open
>letter quoting from the World Socialist Website
>(http://www.politechbot.com/p-02958.html):
>>   I will certainly forward this to others and I hope they will respond. My
>>response will be brief as your "statement" is undeserving of serious
>>consideration. Your claimed interest in promoting rational discussion is
>>dishonest. It is an intentionally divisive diatribe. The Constitution
>>protects your speech just as it has protected bigoted, unintelligent, and
>>immature speech for many years. But, remember, when you exercise your
>>rights you open yourself up to criticism that is protected by the same
>>principles. I sincerely hope that your bad speech serves as a catalyst for
>  >better speech by others.
>
--
Gregory Sisk
Richard M. & Anita Calkins
   Distinguished Professor
Drake University Law School
2507 University Avenue
Des Moines, Iowa  50311-4505
515-271-4184
greg.sisk at drake.edu
http://cartwright.drake.edu/gregory.sisk/sisk.html