Roadblock on the Information Highway

Students resuming studies this fall at Cal State Northridge returned to a campus that had eviscerated their free speech rights by formally conferring on CSUN officials the power to censor speech. And in a recent decision, a California appellate court unequivocally approved CSUN’s actions, reducing state university students to the status of schoolchildren.

Beyond the insult the 2nd District Court of Appeal delivered to hundreds of thousands of members of the California State University community, it dealt an unprecedented and potentially devastating blow to notions of the university and the information highway as unassailable domains for the free exchange of ideas. In the court’s view, these values must defer to the ill-conceived and clumsy efforts of campus bureaucrats to maintain control over the educational experience, even to the point of policing expression.

The court considered the claim of Chris Landers. Landers was a CSUN student during the 1996 election campaign and posted on the CSUN computer server a Web page endorsing John Birke, the Democratic opponent of state Sen. Cathie Wright (R-Simi Valley). In addition to offering information about Birke’s positions, the Web page graphically lampooned Wright’s ties to the tobacco industry with a picture of Wright’s face that morphed into a skull.

When Wright complained about the site, CSUN officials, whom Landers had told of it weeks earlier, removed the Web page. Without giving Landers notice or chance to defend his creation, these officials determined that his Web page violated policies that “strictly prohibited” use of the server in a “political manner.”

In fact, no such policies existed. Quite the contrary, the policy then operative assured users that CSUN had no interest in the political content of any speaker’s statements and encouraged them to “enjoy all the many personal uses” the server afforded.

Landers filed suit against Cal State University trustees to protect his right to engage in political advocacy, long held to form the core of the 1st Amendment. Wright then threatened CSUN with a lawsuit of her own if it reinstated the Web page. Rather than stand up to such an outrageous threat, CSUN administrators set out to mollify Wright by revising their computer policy, explicitly conferring on themselves a power to censor expression.

Landers challenged the new policy on established constitutional grounds. First, a number of U.S. Supreme Court decisions dictated that the server, as public property that the university intentionally dedicated to expressive use, be deemed a public forum for students in which any attempt to regulate speech because of its content would face almost insurmountable obstacles. Second, the new policy allows only expression deemed (by whom, no one knows) to relate to “academic purposes” or “university business,” two vague and overly broad criteria. The policy is thus a prior restraint: Rather than risk violating its proscriptions, at which both speakers and those enforcing it can only guess, students will choose simply not to speak at all.

Incredibly, Justice Miriam Vogel, writing for the court, found nothing constitutionally objectionable in all this. She refused to address the serious 1st Amendment issues the case presented. Her opinion exemplifies the alarming trend of courts abandoning their traditional role of protecting individuals from abuses of state power. Under the guise of judicial restraint, the court subjugated civil liberties to solicitude for the expansion of state authority.

The court found the case was not “ripe” for decision because no one can say whether CSUN will use the new policy to censor speech like Landers’ in the future. Although this gave the court an easy way out, it concealed CSUN’s egregious conduct in deleting the Web page in the first place.

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The court gave CSUN administrators the benefit of the doubt, despite their proven hostility to controversial speech. The court assumed that administrators will permit students’ political expression--so long as they have gotten a faculty member’s approval. Of course, CSUN might just as easily bar any expression that officials believe does not fulfill an academic requirement or class assignment.

Even in the court’s rosy view, however, students’ 1st Amendment rights are intolerably burdened. The Cal State student chatting online with someone who asks for whom she’s voting cannot answer before finding a professor to OK her response. If the court’s abhorrent decision stands, the right of Cal State students to say what they want, when they want, will become a relic of the bygone age when college students were considered adults.