"Law in the Information Age:
The First Amendment, Privacy, and Electronic Networks"
Duke Law School
January 26 - 28, 1995
Many of you have heard that Carnegie Mellon University has stopped
providing six sets of bulletin boards on its servers: the alt.binaries. That is
true. Many of you have also heard that Carnegie Mellon University is
preventing faculty, students, and staff from accessing those materials from the
Internet: that is not only not true--it is impossible.
Let me begin my report and analysis by giving you a summary of what happened--a case statement prepared by the all-university committee established by Robert Mehrabian, President of Carnegie Mellon University, to recommend to him policy on mounting sexually-explicit bulletin boards. Before I do, however, I must provide you with a definition: the relevant Pennsylvania statute on pornography and obscenity says that "knowing means having general knowledge of, or reason to know or a belief or ground for belief which warrants further inspection or inquiry of, the character and content of any material or performance described therein which is reasonably susceptible of examination by the defendant."1
Now the case statement.
Netnews is an informal system for distributing messages across the Internet, which carries millions of bits of information every day. Most universities store (in technical terms, "mount") much-- but not all--of that information on dedicated computers (called "servers") for some period of time (depending on the material). As new material comes in, the old material cycles out. The amount of material available at any one time depends upon the space reserved for that particular "newsgroup" or set of electronic bulletin boards.The information is so voluminous that it would be impractical to monitor, so universities and others in Pennsylvania have assumed the posture that they are not "knowing" under the terms of the Pennsylvania statutes on pornography and obscenity.
Recently the Carnegie Mellon administration was informed by a student doing research on pornography on the Internet that he would soon publish a report on his work. This report may make it impossible for the university to claim that it was not "knowing" about sexually explicit bulletin boards and that, therefore, it might be liable under Pennsylvania pornography and obscenity statutes. (The faculty members advising the student on the project were equally concerned.)
The university's Academic Council agreed that the university should not mount bulletin boards which were believed to be against the law. To implement the decision, a member of the administration announced that six sets of bulletin boards would be dropped.
When the matter came to the president, he directed that the three sets of bboards that carried sexually explicit pictures be dropped and the three sets that contained text be kept for further review; and he appointed a committee made up of officers of the Faculty Senate, the Student Government, and the Staff Council (the president or chair and one other) to make recommendations to him on all six sets. [As Vice Provost for Education, I chair that committee.] That directive was carried out; and the committee has been meeting weekly since mid-November.
An important factor in considering the matter is that, using computers in computer clusters on the campus, faculty, students, and staff can still access directly from the Internet the material no longer mounted on Carnegie Mellon bboards, as can faculty and staff in their offices. The Faculty Senate, the Student Council, and the Staff Council each passed a resolution asking the president to restore the three sets of dropped bboards. The committee established to make recommendations to the president has been meeting weekly to sharpen the issues, to establish procedures for its operations, and to educate itself on the legal and other matters concerned.2
So much for the case statement.
In addition to receiving messages from faculty, students and staff, we very quickly received advice from civil rights groups:
These self-proclaimed First Amendment specialists advised three distinct, divergent positions: (1) the university is not liable if it mounts sexually explicit bulletin boards; (2) it is liable; and, (3) whatever action it takes on the visual, graphic bulletin boards, it should not touch the textual bulletin boards. That, then, is a reasonable summary of what has happened.
One of the ironies of the whole episode is that while I was explaining the administration's action to various representatives of the media and being accused by some on campus of abetting censorship, I was teaching in a course on "American Fiction of the '20s and '30s" William Faulkner's Light in August, which is full of not only illicit sex, but of sexual violence. My specialty is the Modernist novel, the novel of, roughly, the first third of the twentieth century. I regularly teach novels by James Joyce and D. H. Lawrence, for example. In the late 1940s, returning from a summer at Oxford and a short stay on the continent, I smuggled home in my luggage Henry Miller's Tropic of Cancer and Tropic of Capricorn. Over a period of over forty-five years I have published a dissertation, two books and twenty articles on Joyce's Ulysses. Furthermore, I am a lifelong, self-professed liberal and a card-carrying member of the ACLU.
So while I have no legal expertise in this matter, I have credentials of another kind, albeit in an area that is even murkier than the law on pornography and obscenity. I suppose that lawyers might call it expertise in "redeeming social value" - although I hasten to disassociate myself from that legal term because I am talking here about aesthetics and culture, of which the law is just a part.
Now for my analysis.6 (I should say that I speak here for myself, not for my university.) To start, I would reiterate that faculty, students and.staff can still access from the Internet the alt.binaries material that the university has stopped mounting on its bulletin boards. "Ah," some people respond, "but once you start interfering with access you have started down the 'slippery slope' of censorship." Too often we forget, however, that the earth is not flat, that we live on that slippery slope. For example, the single most important injunction that probably makes civilization possible is "Thou shalt not kill." But even that primary rule is not unconditional. If need be, I can kill in self-defense, or in defense of my family, or in defense of my country.
Even First Amendment rights are not unconditional. I would hope that every schoolchild understands the qualification that one may not falsely shout "Fire!" in a crowded theater or libel someone or harass someone sexually or .... 7
A faculty member who disagreed with me chided that the price of freedom is eternal vigilance. I would, of course, agree. But let's not pretend that that bit of wisdom means that we live on a plateau well above the slippery slope. We don't. The real question is how far down that slope we dare or perhaps need to go to be able to live together. And I would argue further that however important it is to capture that negotiation in the law, both statute and case law, the law never quite settles once and for all on what that point on the slope is or what community standards are.
Let me give you an example. None of the First-Amendment lawyers who offered us advice made much of a distinction between visual or textual sexually-explicit materials. But some very vocal members of the Carnegie Mellon community recently made that distinction quite clear.
In response to what they considered censorship (the university's ceasing to mount the alt.binaries bulletin boards), a group formed that called itself the Clitoral Hoods. The Hoods mounted a set of eight or ten posters in one of the academic buildings, some pictorial, some largely textual. Several, for example, showed a sketch of a bare-breasted nymph with her hands between her thighs in a manner suggesting masturbation. On the posters were printed such statements as, "Oh, Erwin! Protect Us Again!" and "Keepin' Our Hands Full . . ." Another accused me of picking and stacking the committee and limiting what committee members could report and asked members of the campus community to write to me to complain about what the Hoods saw as censorship. (The facts are, by the way, that: the president of the university appointed the committee; as you heard in my opening summary,"he appointed people previously elected by three constituencies - faculty, students, and staff; and the committee set its own rules about reporting on its progress.)
Two women who saw those posters misread them and, thinking that I was responsible for them, shot off hot e-mail messages asking how dare I post such sexually explicit images. Of course, I replied that I was outraged that they would think that I would do such a thing. (One of the women was a graduate student, another a faculty member, both in computer sciences.)
Embarrassed, both apologized. One commented that unhappy as she was with the idea of censorship, those posters were offensive. There followed on various campus bulletin boards a flurry of discussions on the matter, some women defending the Hoods' posters, others attacking them.
Finally, the Hoods, chastened I think, responded by posting the following message:
We will not put up posters in public areas which depict nipples or genitalia as explicitly or more explicitly as the image of Ariel does. Ariel will continue as our poster girl, but we will be modifying her image in a variety of ways to shield people from the undesired sight of her nipples or genitals.8 Many people find sexually-explicit images more offensive than sexually-explicit text. I'm not sure that all laws dealing with sexually explicit materials draw such a distinction. The Pennsylvania statute, for example, speaks of "Patently offensive representations or descriptions."9
I don't know who The Clitoral Hoods are. They certainly are intent in their stand, if jocular in their style. My sense is that most of the campus is paying little serious attention to the disagreement. Some of the gay community is exercised. I can understand that. Many of them see any attempt to curtail expressions of sexuality a threat to hard-won acceptance of their sexual orientation -- if, in fact, it has been won.
My sense is, however, that while some--even many--on campus are upset, it is not a burning issue for large numbers of people. (For data, see Appendix A.) Among the faculty, the most vociferous objectors seem to be among the computer scientists. Few faculty have expressed concern to me, either out of personal kindness or lack of interest. The Student Council, of course, is always happy to belabor the administration, as is the student newspaper, which, as is frequent, has most of its facts wrong. It, too, accuses me of appointing and stacking the committee and of preventing committee members from reporting publicly. A good-natured student rally at the steps of the administration building early on drew at best 300 of our 7300 students; and I was given more than a scattering of applause both before and after I presented the administration policy there. I have no sense of how many in the crowd were just onlookers. There have been no rallies since. I have no sense, either, about what staff in general think, although I have heard rumblings of discontent with the action that the Staff Council took.
What puzzles me in this controversy is the inability of many people to distinguish, for example, between the very explicit love making of Molly Bloom and Blazes Boylan in Ulysses and a picture of a dog copulating with a woman or a bound woman being penetrated by a ski-pole. The first, which includes, in case you have not read the novel, a statement about the size of Boylan's penis and Molly's response to it, is part of the eighteenth chapter, the last, in a novel which is widely acclaimed as a masterpiece. Each of the pictures is a single picture, unconnected, disconnected. Perhaps, and I emphasize perhaps if one of them were part of a series or a painting, it could speak to the human condition and have some aesthetic value. One might even make such an argument for a series of photographs or even a single photograph. But not the two I described.
"Oh," some cry,"but who are you to judge?" All citizens in a democracy are entitled to judge - should judge. Further, my profession and my university credential me to judge, although, of course, not to be the sole judge. I judge when I decide what books, slides, or videos to use in my courses or to order for the library. I judged when I prepared this talk and decided that I shouldn't show you on the screen the two pictures I described just now. I judge when I order Ulysses for the university bookstore but would object to the bookstore carrying copies of the two images I decided not to show you. I am only partly concerned in those judgments with the law. Not that I disregard it. It is a factor, one factor, in a whole list of factors which I--and each of you-- consider in the kind of cost-benefit analysis that we undertake many times every day in many things that I do. In this instance, for example:
When I spent the summer at Oxford almost half a century ago, I was told of an interesting town/gown relationship that represented a different world from the one in which we live. If a student at a college had done something to cause himself to be chased by a minion of the law, he could save himself from arrest by getting back to the precincts of his college. If it were late evening and the college gates were closed and locked, he could claim sanctuary - and thus immunity - by simply grasping the knocker on the closed gate. At this distance, I don't remember whether the custom applied at the time or only to the Oxford of the nineteenth century. In the nineteenth century, power in England was held by an upper-class that was still largely a landed elite. Faculty and students came largely from that class or aspired to it. And the colleges had traditions that hearkened back to monastic days.
In any event, that quaint and romantic custom does not describe our current town/gown relationship. In analyzing this problem, we.certainly must begin with academic freedom and freedom of speech. But we must also be aware of a variety of other claims. Some forty percent of the Carnegie Mellon budget comes from sources like governments and business, roughly one hundred and forty million dollars. Much of the rest of the three-hundred and fifty million comes from tuition paid by parents. Faculty regularly serve as consultants to off-campus organizations -- government, business, non-profit; foreign and domestic. Students earn academic credit for off-campus internships and graduate to take positions in the larger community. Knowledgeable members of business and government serve on Carnegie Mellon's thirty Advisory Boards. Carnegie Mellon and other universities invite representatives of industry to come to campus to view their research. We license processes and products to business. We negotiate with the Federal government about overhead rates on research contracts. Universities undertake development programs for one-hundred million, five-hundred million, one billion dollars.
Unlike England in the nineteenth century, power in our society is divided many ways, for it is a pluralistic society. All that is left of the medieval tradition are the academic robe and hood and the mace carried by the Faculty Marshal who leads the academic procession. Ours is not the aristocratic world of noblesse oblige or the monastery, far above the commerce of the world. However we may pride ourselves that universities live higher on the slippery slope than other institutions in our society, we live on that slope, not above it.
Implicit in all that I have said so far is a series of questions. Primary among them is, if faculty, students, and staff can still access alt.binaries materials from the Internet, how is the university censoring by not mounting those materials on Carnegie Mellon servers? It is not preventing anyone from accessing the materials or punishing them for doing so. (As I've already indicated, the slippery-slope argument here is a diversion.)
Let me add another question to help focus on the very practical problem we face:
On cable in a California city that I visited recently there is a sex channel on which attractive nude young women bring each other to writhing, moaning orgasm by visible digital manipulation.
The liberty of the individual is no gift of civilization. It was greatest before there was any civilization, though then, it is true, it had for the most part no value, since the individual was scarcely in a position to defend it. The development of civilization imposes restrictions on it, and justice demands that no one shall escape those restrictions..... A good part of thestruggles of mankind center round the single task of finding an expedient accommodation - one, that is, that will bring happiness - between [the] claim of the individual and the cultural claims of the group; and one of the problems that touches the fate of humanity is whether such an accommodation can be reached by means of some particular form of civilization or whether this conflict is irreconcilable.11
I can understand that the idea of "accommodation" might ring alarm bells in academia. I was a young faculty member during the McCarthy era and watched with some concern the external pressures brought to bear on my university. And I was a dean at Carnegie Mellon in the late '60s when, because we did not 'discipline' the students and faculty who picketed the headquarters of a major corporation for its contribution to the waging of the Vietnam War, we lost a significant amount of funding from that corporation for several years. just as no man is an island, so is no university. During the troubled '50s and the troubled '60s, Carnegie Mellon managed to accommodate both internal and external pressures without any explosions, literal or figurative - although we had some difficult episodes. If at any particular moment we bent one way or another, we survived whole - and with integrity.
Just as members of the university must seek reasoned accommodation with each other, so the university must seek accommodation with the larger society of which it is a part and which it serves. It must do so with the full knowledge of its own traditions and the further knowledge that not only is society often short-sighted and narrow-minded, but that it currently is on a course that in some ways threatens the very principles it celebrates in story and song. But it must negotiate with that society: it cannot dictate to it. To attempt to dictate is unprincipled - and, ultimately, suicidal.12
2. Minutes of the Bulletin Board Committee, Meeting of December 15, 1994.
3. Barry Steinhardt, Marjorie Heins, and Witwold Walczak to Dr. Robert Mehrabian, November 5, 1994; Vic Walczak and Marjorie Heins to Faculty Senate and Student Council, Carnegie Mellon University, Re: Legal Analysis of CMU's Potential Liability for Maintaining Sexually Explicit Bulletin Boards that Contain Obscene Materials, November 10, 1994.
The ACLU argued, essentially, that:
The National Law Center for Children and Families argued that:
5. Michael Godwin to William Y. Arms, Re: College cancels sexually explicit newsgroups, November 16, 1994.
Godwin, who introduced himself via e-mail as "a lawyer for the Electronic Frontier Foundation," wrote in that same message, "I understand CMU's concern about obscenity, and thus take no issue with the decision to remove the .binaries newsgroups. But as any First Amendment lawyer can tell you, the discussion of sexual matters of any sort is Constitutionally protected speech, and thus cannot be prosecuted under any state's law, much less Pennsylvania's."
6. It might be argued that as chair of the all-university committee to make recommendations to the president, I am not entitled to a point of view - or, that if I have one, I should not express it. But on an issue like this, few people in the academy - or, indeed, out of it - don't have a point of view. Furthermore, several members of the committee have regularly - and vociferously - expressed their point of view. And finally, all of the committee members are sturdy and secure enough to keep me from misusing my position to influence the recommendations should I try to do so. Indeed, so cautious are they about any possibility of my misusing the committee that I feel that on occasion I feel that I have been misused.
7. Stanley Fish argues that There's No Such Thing as Free Speech, and It's a Good Thing, Too. NY: Oxford, 1994; pp- 102-119.
8. Clitoral Hoods to bb+graffiti.bboard-censorship@andrew.cmu.edu, December 12,1994.
9. 18 Pa. C.S.A. 5903 (6). Cass R. Sunstein deals with this distinction briefly in Democracy and the Problem of Free Speech. NY: Free Press, 1993; pp. 218-219. See Sunstein's discussion of pornography in Ch. 7, "More Hard Cases: Pornography, Government Arts Funding, and Corporate Speech," pp. 209-227.
10. See, for example, Robert C. Post, "The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell" Harvard Law Review 103 January 1990), p. 685:
Public discourse may thus be conceived as situated in a triangular space. In one corner is community, which regulates speech in the interests of civility and dignity. In a second is organization, which regulates speech in the interests of instrumentally attaining explicit objectives. In a third corner is public discourse, which alone carries within it the freedom of critical interaction that we, in our culturally diverse nation, associate with democratic processes. The imperatives of community life and of bureaucratic organization are powerful, and perpetually encroach upon public discourse. Because public discourse in fact depends upon both for its continued existence and effectiveness, it is like the wind described by Herman Melville that "spins against the way it drives." ["The Conflict of Convictions," in Battle Pieces and Aspects of the War 14, 17 (1960) (facsimile of 1866 ed.) (emphasis in original)].
11. Sigmund Freud, Civilization and Its Discontents, trans. James Strachey. NY: W. W. Norton, 1962; pp. 42-43.
12. I am responsible for the analysis and argument in this paper. I must, however, acknowledge the help I received in how best to express my ideas from a variety of people -- chief among them Professor Marc W. Steinberg; Alan J. Steinberg, Esquire; and the members of my current graduate class in Style at Carnegie Mellon University.
Lenny Foner Last modified: Thu May 18 07:37:47 1995