Note: Individual names have been changed to protect the innocent and
give solace to the guilty.
Brown: Don't you think a person should have the right to say whatever
she wants in a private conversation?
Green: Now there's a loaded question for you! You field this one, White.
Looks to me like Brown has a chip on her shoulder this time.
White: If you insist, Green. To start with, I think it's a perfectly
good question, although a bit--perhaps quite a bit--vague. But it is
provocative, and that's why we meet here periodically, isn't it? To stir
up controversy, or at least to engage our minds with it.
Brown: You and your philosophical digressions. I do have something in
mind, after all. It's the Santa Rosa Junior College case. I would say
affair but you might think that unduly suggestive. You are familiar with
it, no doubt?
Green: As I understand it, Professor McX set up two private, and sex-
segregated, electronic bulletin boards, called Men Only and Women Only.
Not one to hide the ball, that McX: In his e-mail announcement, McX made
it clear that--to use his own words--"persons who gain entrance to a
conference agree that what is said there is private. It is a violation .
. . to show messages or discuss their contents--other than a general
summary with a nonmember of that conference. If you can't abide by that
rule, don't ask for admission to the conference. . . . Violating others'
confidences is a major sin; don't do it."
White: But trouble started brewing when some members of Men Only began
exchanging lewd, crude, and juvenile remarks about some female students,
one of whom--van Z by name--had been openly critical of an
advertisement--with photo--that she considered sexist and exploitative.
The ad had run in the school newspaper. One member of the Men Only
conference, who believed his obligation to rectify the injustice caused
to van Z trumped any duty to abide by his confidentiality pledge,
notified van Z of the vulgarities.
Brown: To no one's surprise, the lawyers soon appeared on the scene.
Seems like you can't have a controversy these days without lawyers,
doesn't it? Anyway, the government lawyers in the U.S. Department of
Education's Office of Civil Rights concluded that the mere creation of
the sex-segregated conferences was unlawfully discriminatory in and of
itself. That seemed like a shocker to me. Why shouldn't students of a
single sex be able to congregate, either physically or electronically?
Green: Of course the students can, acting on their own. The question is
whether or not the college can sponsor such a single-sex forum as a part
of its educational mission. The Office of Civil Rights concluded that it
could not, at least if it wants to continue to receive federal funds.
Brown: And you're telling me that setting up an electronic bulletin
board is part of a college's educational mission? What if it set up a
soapbox on Saturday morning and encouraged people to come to speak and
to listen on controversial topics?
Green: You mean a forum that would encourage all the students to come--
or just the female--or male--students?
Brown: A point well taken. But what about counseling services? What
about groups that are limited to members of one sex and that share
feelings and experiences among only those in the group? What about
groups of women who want to address their experiences--perhaps as
children--of sexual abuse? Are you telling me those are forbidden if
sponsored by the school because helping students to get in touch with
their feelings about sexual matters could be construed as part of the
so-called educational mission of the college?
Green: It seems like that's what the Office of Civil Rights is saying.
Brown: But why? Are we so afraid of the stigma of the catchphrase
separate but equal that we substitute reaction for analysis? I know we
all--at least in this little group--appreciate the historic legal battle
against state-sponsored racial discrimination in our schools,
highlighted in the Supreme Court's 1954 ruling that separate public
schools for different races were inherently unequal. But segregated
schools were designed to promote and advance one race over another; sex-
segregated bulletin boards aren't meant for that.
White: Brown, I think you're the one who needs the soapbox. But your
original point was that one's speech in private cyberspace should be
unregulated by law, and that clearly is off-base. For instance, I can't
libel and slander others in cyberspace, even to a private group that's
by invitation only. I can't lie and defraud others through phony
marketing schemes, even if they consent to join in my aptly named Get
Rich Now/Super Pyramid forum.
Green: Maybe they get what they deserve. Who was it who said, "You can't
cheat an honest man"?
Brown: I think it was either Fields or Chaucer. In any case, in keeping
with the tenor of our discussion, I think you should rephrase that as
"an honest person."
Green: Score one for you on that, Brown. But the Office of Civil Rights
has proposed a ban on computer bulletin board comments that harass,
denigrate, or show hostility toward a person or group based on sex,
race, or color. That would include slurs, negative stereotypes, and
jokes.
Brown: Why not apply the same rule to my invited guests in the privacy
of my living room? Isn't there some arena of discourse that is strictly,
utterly, and entirely private? As private as my own thoughts? Cannot
this group's private salon be such an arena? And if so, why not a
computer bulletin board? Does it matter if the bulletin board is set up
by the school, so long as it is cooperatively governed by its student
members?
White: My point is simply that the content of speech has always been
regulated to some degree. You can't say anything you want without legal
consequence, even in a private group, and you never have enjoyed that
privilege.
Brown: And my point is that the government should not endeavor to
regulate private speech, whether in cyberspace or the dormitory room,
simply because the ideas or language would be offensive to someone
outside the speaker's range. And it shouldn't matter that the forum is
electronic or is conducted on a computer that happens to be owned by the
college. After all, the lunchroom is owned by the college, and students
have private conversations there.
White: You know, now that you mention it, I have a strange feeling that
someone is eavesdropping on our little salon.
Green: White, you're always imagining things. Next you'll be telling me
that we're all just figments of someone's over-active imagination.
Besides, we've not offended anyone--uh, have we?
Brown: You know, these days you just never know who's listening in or
what they might think.
This column provides only generalized and anecdotal discussion of legal
issues and should not in any way be construed as legal advice. Legal
problems are inherently complex and require specific attention to and
analysis of the particular facts. Never rely on a general article for
guidance in a particular case.
Edmund B. (Peter) Burke is an attorney in the Corporate Technology
Practice Group at Powell, Goldstein, Frazer, & Murphy, a law firm with
offices in Atlanta and Washington, D.C.
Magazine: Educom Review
Issue Date: Jan/Feb 1995
Title: What Price Privacy? The Perils of CyberSpeech
Author: Edmund B. Burke
Note: Individual names have been changed to protect the innocent and
give solace to the guilty.
Brown: Don't you think a person should have the right to say whatever
she wants in a private conversation?
Green: Now there's a loaded question for you! You field this one, White.
Looks to me like Brown has a chip on her shoulder this time.
White: If you insist, Green. To start with, I think it's a perfectly
good question, although a bit--perhaps quite a bit--vague. But it is
provocative, and that's why we meet here periodically, isn't it? To stir
up controversy, or at least to engage our minds with it.
Brown: You and your philosophical digressions. I do have something in
mind, after all. It's the Santa Rosa Junior College case. I would say
affair but you might think that unduly suggestive. You are familiar with
it, no doubt?
Green: As I understand it, Professor McX set up two private, and sex-
segregated, electronic bulletin boards, called Men Only and Women Only.
Not one to hide the ball, that McX: In his e-mail announcement, McX made
it clear that--to use his own words--"persons who gain entrance to a
conference agree that what is said there is private. It is a violation .
. . to show messages or discuss their contents--other than a general
summary with a nonmember of that conference. If you can't abide by that
rule, don't ask for admission to the conference. . . . Violating others'
confidences is a major sin; don't do it."
White: But trouble started brewing when some members of Men Only began
exchanging lewd, crude, and juvenile remarks about some female students,
one of whom--van Z by name--had been openly critical of an
advertisement--with photo--that she considered sexist and exploitative.
The ad had run in the school newspaper. One member of the Men Only
conference, who believed his obligation to rectify the injustice caused
to van Z trumped any duty to abide by his confidentiality pledge,
notified van Z of the vulgarities.
Brown: To no one's surprise, the lawyers soon appeared on the scene.
Seems like you can't have a controversy these days without lawyers,
doesn't it? Anyway, the government lawyers in the U.S. Department of
Education's Office of Civil Rights concluded that the mere creation of
the sex-segregated conferences was unlawfully discriminatory in and of
itself. That seemed like a shocker to me. Why shouldn't students of a
single sex be able to congregate, either physically or electronically?
Green: Of course the students can, acting on their own. The question is
whether or not the college can sponsor such a single-sex forum as a part
of its educational mission. The Office of Civil Rights concluded that it
could not, at least if it wants to continue to receive federal funds.
Brown: And you're telling me that setting up an electronic bulletin
board is part of a college's educational mission? What if it set up a
soapbox on Saturday morning and encouraged people to come to speak and
to listen on controversial topics?
Green: You mean a forum that would encourage all the students to come--
or just the female--or male--students?
Brown: A point well taken. But what about counseling services? What
about groups that are limited to members of one sex and that share
feelings and experiences among only those in the group? What about
groups of women who want to address their experiences--perhaps as
children--of sexual abuse? Are you telling me those are forbidden if
sponsored by the school because helping students to get in touch with
their feelings about sexual matters could be construed as part of the
so-called educational mission of the college?
Green: It seems like that's what the Office of Civil Rights is saying.
Brown: But why? Are we so afraid of the stigma of the catchphrase
separate but equal that we substitute reaction for analysis? I know we
all--at least in this little group--appreciate the historic legal battle
against state-sponsored racial discrimination in our schools,
highlighted in the Supreme Court's 1954 ruling that separate public
schools for different races were inherently unequal. But segregated
schools were designed to promote and advance one race over another; sex-
segregated bulletin boards aren't meant for that.
White: Brown, I think you're the one who needs the soapbox. But your
original point was that one's speech in private cyberspace should be
unregulated by law, and that clearly is off-base. For instance, I can't
libel and slander others in cyberspace, even to a private group that's
by invitation only. I can't lie and defraud others through phony
marketing schemes, even if they consent to join in my aptly named Get
Rich Now/Super Pyramid forum.
Green: Maybe they get what they deserve. Who was it who said, "You can't
cheat an honest man"?
Brown: I think it was either Fields or Chaucer. In any case, in keeping
with the tenor of our discussion, I think you should rephrase that as
"an honest person."
Green: Score one for you on that, Brown. But the Office of Civil Rights
has proposed a ban on computer bulletin board comments that harass,
denigrate, or show hostility toward a person or group based on sex,
race, or color. That would include slurs, negative stereotypes, and
jokes.
Brown: Why not apply the same rule to my invited guests in the privacy
of my living room? Isn't there some arena of discourse that is strictly,
utterly, and entirely private? As private as my own thoughts? Cannot
this group's private salon be such an arena? And if so, why not a
computer bulletin board? Does it matter if the bulletin board is set up
by the school, so long as it is cooperatively governed by its student
members?
White: My point is simply that the content of speech has always been
regulated to some degree. You can't say anything you want without legal
consequence, even in a private group, and you never have enjoyed that
privilege.
Brown: And my point is that the government should not endeavor to
regulate private speech, whether in cyberspace or the dormitory room,
simply because the ideas or language would be offensive to someone
outside the speaker's range. And it shouldn't matter that the forum is
electronic or is conducted on a computer that happens to be owned by the
college. After all, the lunchroom is owned by the college, and students
have private conversations there.
White: You know, now that you mention it, I have a strange feeling that
someone is eavesdropping on our little salon.
Green: White, you're always imagining things. Next you'll be telling me
that we're all just figments of someone's over-active imagination.
Besides, we've not offended anyone--uh, have we?
Brown: You know, these days you just never know who's listening in or
what they might think.
This column provides only generalized and anecdotal discussion of legal
issues and should not in any way be construed as legal advice. Legal
problems are inherently complex and require specific attention to and
analysis of the particular facts. Never rely on a general article for
guidance in a particular case.
Edmund B. (Peter) Burke is an attorney in the Corporate Technology
Practice Group at Powell, Goldstein, Frazer, & Murphy, a law firm with
offices in Atlanta and Washington, D.C.