More on the UNC-W email brouhaha

[John Noble]

At 8:16 PM -0500 12/25/01, Michael MASINTER wrote:
>I would be curious to know whether John Noble thinks the university would
>have the power to discipline the professor had he posted the e-mail
>message from his private computer attached to a commercial ISP?  The
>"student as paying customer" rationale would not seem dependent upon the
>ownership of the computer network from which the message was posted.  To
>take the question a step further, suppose the professor made the same
>remarks on "Larry King Live;" would the result change?
>
>I pose the questions because I am genuinely curious about whether the
>ownership of the computer, and the control over the network, are truly
>significant?  I assume the student's father would have been just as
>offended in the two alternatives I have posed.  Though the university
>might no longer fear imputed liabilty for a tort if the posts came from
>outside its network, I gather that is not the basis for its claimed power
>to discipline the professor.
>
>The argument seems to have shifted from misuse of employer property to
>employer power over employees whose speech embarasses the employer.  To
>the extent Pickering is relevant, it is not limited to workplace speech.

The government's proprietary authority regarding the use of its own network
foreclosed the claim by the professors in Urofsky that they were exercising
First Amendment rights in their capacity as citizens rather than employees.
The use of a private computer and network (or Larry King) reopens that
issue. It moots the issue of whether the email records were properly
disclosed because they were agency records.

Urofsky emphasized that speech in an employee capacity can occur outside
the workplace, just as an employee might speak in his capacity as a citizen
while inside the workplace. Presumably that means the professor can speak
in his capacity as an employee, rather than citizen, on a private network.
If you give him the benefit of the doubt, and conclude that he was speaking
in his capacity as a citizen, then the court would weigh his interest in
exercising his First Amendment right against the university's interest in
the operation of its enterprise. It seems to me (just my opinion) that the
interest of the professor in communicating his evaluation of a student's
psychological, intellectual or moral worth is not very compelling so long
as he is free to express his disagreement and the reasons for his
disagreement on the merits. The interest of the university in encouraging
independent thinking by students, effective instruction by its professors,
and productive relations between students and teachers, justifies a rule
prohibiting personal vilification of students for their political opinions.
I'm not saying that the university must require professors to refrain from
personally insulting students; just that it can do so without violating the
First Amendment.

>I think the university should lose either way; I think the professor has
>no less a first amendment right than the student, and that both should be
>free to engage in robust disagreement.  And as disagreement goes, this is
>pretty tame stuff; I have been called worse, and I suspect most of us
>have.

I don't care whether the university wins or loses, and I don't have enough
facts to know who should win. As long as the issue is not whether the
professor has a right to express any opinion he might have -- but whether
the professor has a right to get paid for spewing personal insults at the
people who are paying him for an education; whether the university can
collar employee speech that reflects a disregard for rational discourse and
basic civility; whether finally the university can remove a teacher who is
emotionally or mentally unfit to teach -- I'm happy. If the university
decides that a generally competent teacher just lost his temper to
understandable provocation, that's fine. If the university decides that it
wants to pay someone who runs political campaigns from his campus office,
and who makes a point of alienating as many students as possible to reduce
enrollment in his classes so he can spend more time on his political work,
then, hey, that's their right too. Sure, we've all been called worse, but
that doesn't mean that it is professional behavior, or that the university
is required to tolerate unprofessional behavior.