Legal Watch: Technology and Free Speech: A Hit and a Miss
By Donna R. Euben
The Internet is a tool used by many professors in their research and teaching. The U.S. Supreme Court has recognized it as "a unique medium" entitled to First Amendment protection. Two federal appellate courts recently addressed the scope of that protection for the academic freedom of professors who use computers for research. Junger v. Daley was a hit, and Urofsky v. Gilmore was a miss.
In April the U.S. Court of Appeals for the Sixth Circuit ruled unanimously in Junger v. Daley that the First Amendment protects computer source code because it "is an expressive means for the exchange of information and ideas about computer programming."
The case was brought by Peter Junger, who teaches a course on computers and the law at Case Western Reserve University School of Law. He challenged government regulations that prohibit the exporting of cryptography without a license because of national security concerns about foreign (non-Canadian) terrorism. Encryption code scrambles messages.
Junger contended that the regulations violated his right to speak and teach. He determined that he could not, for example, post to his Web site encryption source code he wrote to demonstrate to his students how code operates.
The Sixth Circuit agreed with Junger that such code is expressive and, therefore, protected by the First Amendment. The court found "[t]he fact that a medium of expression has a functional capacity should not preclude constitutional protection." Just as the First Amendment "'unquestionably shielded' the artwork of Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll," so too it shields encryption code. The Sixth Circuit opined that "a musical score cannot be read by the majority of the public but can be used as a means of communication among musicians. Likewise, computer source code, though unintelligible to many, is the preferred method of communication among computer programmers."
The court's decision is important, because it applies the First Amendment to new mediums of speech. The case will now return to trial court under this helpful analysis for reconsideration in light of the recently relaxed government regulations.
In June the U.S. Court of Appeals for the Fourth Circuit issued a troubling academic freedom decision in Urofsky v. Gilmore. In that case, six professors at Virginia public institutions challenged the constitutionality of a law that restricts state employees from accessing "sexually explicit" material on computers owned or leased by the state without prior agency approval. The professors alleged, in part, that the statute interfered with their academic freedom to do research and teach.
The Fourth Circuit, in an 8 to 4 decision, rejected the professors' claims, ruling that such "regulation of state employees' access to sexually explicit material . . . is consistent with the First Amendment."
Specifically, the court declared that the Virginia law does not violate the academic freedom of professors at state colleges and universities. The court reviewed Supreme Court precedent and reasoned that only institutions, not individual professors, have a constitutional right to academic freedom.
The dissenting judges found the state law unconstitutional, in part because "the works of Toni Morrison and many themes found in Victorian poetry . . . could be classified as lascivious." They also described as inadequate the procedure for prior agency approval, which has "no check on the discretionary authority of State agencies."
This decision is deeply troubling. First, the majority failed to recognize the unique nature of professors' work, and the need for academic independence from state institutions. Second, the majority ignored legal precedent that the First Amendment protects the academic freedom of individual professors. In University of Michigan v. Ewing, for example, the U.S. Supreme Court found academic freedom to be possessed by both institutions and "the individual teacher . . . to pursue his ends without interference from the academy."
Chief Judge Wilkinson wrote in his Urofsky concurrence, which was highly critical of the majority's reasoning: "I fear the [majority] forgets that freedom of speech belongs to all Americans and that the threat to the expression of one sector of society will soon enough become a danger to the liberty of all." The professors share this "fear" as well, and so are seeking review of the Urofsky decision by the U.S. Supreme Court.
Donna Euben is AAUP counsel.
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