PROBLEM. A university punishes a student because he sent a misogynistic e-mail to some people who were offended by it. Violation of the U.S. Constitution?
(page down for the answer)
SOLUTION. There were two traps in this question. First, is the university private or public? If it's private, then no constitutional violation. Yes, we know, most private universities get lots of government subsidies of various kinds, but that doesn't matter. So long as the university is not run by the government, it's not covered by the First and Fourteenth Amendments.
Second, and more subtly, did the student use a university e-mail account? If it wasn't, the answer is easy: The government is acting as university educator, and can't punish speech based on its content. UNCONSTITUTIONAL.
If the account was a university account, then we have a slightly knottier question. The university is acting as proprietor; it's providing the computer from which the student sent the message, and it might argue that it at least has the right to kick the student off the computer.
But at most universities, the e-mail systems are designated public fora -- the university opens the systems up to students to say whatever they want to say. The university can't then impose content-based restrictions (and certainly not viewpoint-based restrictions) on what students say there. So, again, UNCONSTITUTIONAL
The university might, however, open the e-mail system up to students but only for curriculum-related matters. If the misogynistic message is not curriculum-related, the university might kick the user off for that. On the other hand, if it only punishes students who send misogynistic messages and not other non-curriculum-related messages (e.g., jokes, party invitations, and so on), then it becomes clear that it's discriminating not based on the ostensible purpose of the form -- curriculum support -- but based on the speech being misogynistic. Again, UNCONSTITUTIONAL.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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