DIALOG(R)File 634:San Jose Mercury
(c) 1994 San Jose Mercury News. All rts. reserv.



San Jose Mercury News (SJ) - Saturday, September 17, 1994
By: Michael Dorgan
Mercury News San Francisco Bureau
Edition: Morning Final Section: Front Page: 1A
Word Count: 1,046

San Francisco - Should comments typed on a computer bulletin board be subject to different standards than words spoken aloud? Should the federal government impose limits on free speech in cyberspace?

Those are just two of several weighty questions that have arisen from an unprecedented case here involving the U.S. Department of Education's regional Office for Civil Rights and Santa Rosa Junior College.

Responding to a sexual harassment complaint by three students at the college, two of whom were targets of crude comments typed into a campus electronic bulletin board, the civil rights office has ordered the college to regulate all on-line communications to prohibit comments that could create a hostile environment for women or ethnic minorities.

But the university, faced with a potential loss of federal funds if it fails to comply, is resisting. It claims that some on-line services are forums for ideas and that the proposed regulations would infringe on students' free speech.

"This is a cutting-edge issue," says attorney Bob Henry, who represents the campus. "At the college here, we literally have a soapbox, a permanent fixture under the oak trees, where students and others can stand up and say whatever they want. But if we create the same soapbox using 20th-century technology, suddenly the issue (of free speech) is different."

John Palomino, the San Francisco-based regional director of the civil rights office, says the case is the first of its kind, but he declines to discuss it while it remains under negotiation. He would say only that "we are very careful about balancing First Amendment rights against the rights of victims of either racial or sexual harassment."

One thing both sides agree on is that the e-mail comments several male students made about students Lois Arata and Jennifer Branham in the spring of 1993 were vulgar and offensive -- so offensive they cannot be quoted in this newspaper.

The comments were made on an all-male bulletin board set up for journalism students after male and female students requested gender-specific bulletin boards so they could speak frankly with fellow students of the same sex.

Branham, who grew up in San Jose, says trouble started when the student newspaper, the Oak Leaf, published what she calls "the butt ad."

Featuring the back side of a woman in a thong bikini, the advertisement announced a sale on swimwear at a local shop. But student Lois Arata responded not by rushing to the shop but by picketing the newspaper for allegedly promoting the sexual objectification of women.

Some staffers on the paper resented the criticism. After Branham rose to Arata's defense, both she and Arata became targets of ridicule and derision on the all-male bulletin board.

Branham says that when friend Dylan Humphrey told her of the unflattering flurry of messages, she complained to the newspaper's faculty adviser, Roger Karraker, who immediately shut down the all-male and all-female bulletin boards. But Branham says that was not enough; she wanted the culprits punished.

She complained to campus administrators, who put Karraker on paid leave pending an investigation. Branham says that angered many of her fellow students, who blamed her for getting the popular teacher into trouble.

"It turned into a Jennifer trash-a-thon," she said.

So upset she dropped out of school, Branham consulted an attorney, who threatened to file a sexual harassment suit against the campus. The plaintiffs would have been not only Branham and Arata but also Humphrey, who allegedly drew the wrath of his fellow male students by notifying Branham of the offending e-mail.

Threat of court battle

The college board this week responded to the threatened lawsuit by giving the three would-be plaintiffs $15,000 each. Henry says the board did not believe the threatened litigation had merit but was eager to avoid the expense of court battle. But the campus may yet face a court fight, he says, if the civil rights office continues to demand that the college impose on all its on-line services precise regulations banning comments that could create a hostile educational environment.

Henry said the campus administration does not object to such regulations for instructional or business on-line services. But the free flow of ideas encouraged by some on-line services, such as the school's current-events bulletin board, would be impeded if the university were held accountable for any comments that might be found objectionable, he added.

"We really see it as censorship," he said. "We want to provide a forum for the exchange of ideas. They should not impose legal liability (on the college) for speech . . . that some view as offensive."

Henry said holding the college responsible for all that is said on-line would be like holding it responsible for all that is written in the books in its library.

But attorney Patricia Gray, who represented Branham, Arata and Humphrey, says speech issued through a computer is "not like standing under the oak tree." Echoing the preliminary findings the civil rights office outlined in a June letter to college President Robert F. Agrella, Gray argues that on-line communications represent a "limited public forum" and therefore do not enjoy the same First Amendment protections as a full public forum.

"Why should an educational institution try to shirk the responsibility they would have in a classroom or a locker room (where offensive speech would not be tolerated)?" she asked.

Mark Rotenberg, director of the Electronic Privacy Information Center in Washington, D.C., which monitors the impact of law on cyberspace, says the Santa Rosa conflict represents "the most fully developed case involving the scope of permissible speech" in computerized communications.

But fully developed does not mean easily resolved. Rotenberg, a law professor at Washington's Georgetown University, says the case fits squarely into a "gray area" of federal law. Part of the confusion, he adds, is that society has not yet decided on a metaphor for on-line services.

Should they be regarded as libraries, bookstores or newsstands, and thereby not be held accountable for all that passes through the wires? Or are they controllable conduits, as suggested by the civil rights office's concept of a "limited public forum?"

"It's not easy to come down on one side or the other," Rotenberg said.

Copyright 1994, San Jose Mercury News
Permission granted for class use, Michael Dorgan, 94/09/22 (by phone).

Follow-on Commentary from New York Times

From: tls@gate.net (Terry Steinford) Newsgroups: alt.comp.acad-freedom.talk Subject: Manners vs. Freedom of speech Date: 13 Oct 1994 23:48:46 GMT Xref: server.cs.vt.edu alt.comp.acad-freedom.talk:6033

Today's New York Times has an Editorial Notebook item discussing a situation at Santa Rosa Junior College in California where a falling out between two students that had dated has lead to a Federal lawsuit about single-sex only bulletin boards and posted comments "in line with what one finds on bathroom wall in bus terminals". The item concludes:

"It was an article of faith that the information superhighway would transform workaday life into a quasi-utopian, state-of-the art experience. The information superhighway: say it three times, click your heels, and you would have any movie you wanted on demand, be examined by your doctor without leaving your bed of pain, find yourself on a planet that had become a cozy little virtual neighborhood. The clue was in mixed metaphor: You don't build a neighborhood on a superhighway, especially not the infobahn.

"The promise of the virual neighborhood has proved far-fetched at best. How could it be otherwise when the communicants are faceless and voiceless, many writing under assumed names? Facelessness brings out the beast in people. As exhibit A, consider that the first verb cyberspace contributed to the language was "to flame," meaning to singe someone's eyebrows with an obsure or derogatory message. Flaming has become the on-line sport of choice; whole sectors of the Internet are given over to the most putrid insults. A curse muttered on the street disappears into the air. A flame echos on, to be read by millions.

"The information superhighway may yet rise to its lofty promise. But as of now, its most pronounced accomplishment has been to chisel into stone trash that would better have been left to disappear."

Any thoughts?

Last updated 94/10/17