Academic Freedom in Cyberspace

One of the nation’s foremost experts on freedom of expression brings us up to date on the latest cyber-cases.
By Robert O’Neil

When the Internet arrived on the college campus, change in many facets of academic life seemed inevitable. Academic freedom issues were unlikely to be insulated from this metamorphosis, and they were not. Even after a decade and a half, however, the nature and scope of such change remain surprisingly unclear. There were a few early skirmishes, notably the appearance of offending material on faculty Web sites, such as engineering professor Arthur Butz’s infamous Holocaust denial and homophobic material posted on the university Web pages of a Missouri physicist and an Indiana business professor. The faculty members’ institutions all refused, quite logically, to treat digitally offensive material any differently from similar messages in print; Northwestern University, Washington University in St. Louis, and Indiana University Bloomington, respectively, responded to would be censors by declaring that academic freedom encompassed even such unwelcome statements and refused to compel their removal.

There were also a few early dust-ups involving access through campus libraries to materials that were salacious but not legally obscene or otherwise unlawful. Even institutions as tech-savvy as Stanford University and Carnegie Mellon University initially got this one wrong, assuming they were empowered (or even obligated) to limit access of library patrons to such sources as alt.sex newsgroups. But wiser counsel eventually prevailed, along with the recognition that few members of the academic community depended on terminals in the campus library to obtain such dubious materials, and the issue seemed to have vanished by the close of the twentieth century.

A later potential test of academic freedom in cyberspace was barely noted at the time but surely bears mention here. The infamous essay that brought official wrath upon University of Colorado at Boulder professor Ward Churchill initially appeared on an obscure Web site. Churchill’s outrageous statements about “little Eichmanns”—victims of the September 11 terrorist attacks whose labors in the World Trade towers somehow invited their fate—languished in cyberspace for nearly five years until they were discovered on the eve of an upstate New York lecture that Churchill had been invited to deliver. But the Boulder faculty committee that the university’s regents later charged with reviewing Churchill’s status barely mentioned the unusual medium in which the catalytic material appeared. The committee’s vindication of Churchill’s offending statements (reflecting its belief that freedom of speech would have protected a nonprofessorial post of the same message) assumed that print and digital publication should be treated alike. (Churchill’s ultimate dismissal from his tenured position on the Boulder faculty resulted from charges of grave research misconduct, on the basis of which the regents eventually terminated his appointment. On July 7, a Colorado trial judge dismissed Churchill’s plea for reinstatement, noting that such intervention would effectively nullify the research misconduct sanction and could “effectively entangle the judiciary excessively in matters that are more appropriate for academic professionals.” That ruling will almost certainly be appealed, leaving final resolution to a higher court.)

The Challenges of Cyberspace

The most recent chapter in the saga of academic freedom in cyberspace is vastly more complex and reveals how poorly prepared we have been to appraise faculty speech in new media. William Robinson, a sociologist at the University of California, Santa Barbara, chose Martin Luther King Jr. Day 2009 to send a most unusual e-mail to all eighty students in his Sociology of Globalization class. Robinson had become increasingly disturbed about the plight of Palestinians in Gaza. The electronic message contained an accusation that Israel had committed war crimes in Gaza, arguably analogous to Nazi atrocities during the Holocaust. Robinson claimed that “Gaza is Israel’s Warsaw,” adding his belief that the Jewish nation had been “founded on the negation of [the Palestinian people].” Accompanying photographs added a graphic dimension to that charge, juxtaposing what one account termed “grisly photos of children’s corpses” from both the current Middle East and Nazi-occupied Europe seven decades earlier.

Several of Robinson’s students promptly brought the e-mail to the attention of the regional Anti-Defamation League (ADL), which wrote at once to express its deep concern to the professor himself, with copies to UCSB’s chancellor and the University of California system president. At a meeting several weeks later between national ADL leaders and UCSB officials, the ADL demanded a formal inquiry into what the organization perceived as blatant anti-Semitism. Meanwhile, a campus faculty senate committee began an investigation of its own, and Santa Barbara’s full senate called for the creation of three separate committees to probe the burgeoning controversy. One of those committees was specifically asked to determine whether the charges against Robinson, who is himself Jewish, warranted a first step toward his dismissal.

Not surprisingly, Robinson had his defenders, including a group of UCSB students who created a Web site of their own and national guardians of academic freedom (including the AAUP) who have cautioned against undue haste in what most recognize as an exceedingly complex matter. Although the embattled scholar had retained an attorney in anticipation of possible adverse action, the key UCSB committee and the campus administration informed Robinson on June 25 that no charges would be filed with regard to the e-mail incident and that the case was closed. Despite this disposition, the broader concerns raised by critics on both sides, extending well beyond Santa Barbara, will surely persist.

Academic Freedom in the Digital Age

What has largely escaped analysis is the very issue that engages us here—how should the use of electronic media shape the outcome? Consider how different it would have been had Robinson distributed the same material to his students in class. Despite the difficulty of the underlying issue—whether such an action is protected by a professor’s academic freedom—we can at least summon familiar desiderata for its resolution. Or suppose the same statements had appeared in a letter to the editor of the Los Angeles Times or the Santa Barbara News-Press; here again we would face a daunting issue of academic freedom and free speech, but at least the context would be familiar and the applicable standards quite manageable. The trouble with the actual case of Robinson’s contentious e-mail is that the novelty of the medium by which it was conveyed deprives us of familiar tools for analysis and thus greatly compounds the difficulty of resolving an already perplexing question.

Several media-related issues bear closer scrutiny. Robinson’s critics argue that he should face sanctions because he used campus resources for a personal or political purpose unrelated to his course. Apart from the improbability that such transgressions by many of his colleagues ever elicit official concern—much less sanctions—the premise of this charge seems tenuous. Robinson himself notes the broad scope of the course heading—Sociology of Globalization—and the preeminently global nature of the stark analogy of his message. Here, however, we do have some guidance from the print era; AAUP policy has long cautioned professors against persistent intrusion into the classroom of material unrelated to the subject of the course.

While this precept may initially seem useful, Robinson’s action does not easily fit its definitions or assumptions. As a one-time communication, his controversial message was hardly “persistent.” Nor do we have consensus on whether an e-mail message from the teacher to his students should be treated as “intrusion into the classroom” in the first place, or whether the proper analogy is to the posting of unwelcome material (like Butz’s Holocaust denial) on a Web site supported by the university’s server.

Indeed, there is an even deeper mismatch between what happens in the electronic age and rules that govern the print era and brick-and-mortar facilities: in the digital era, even putting wholly online courses aside, steadily increasing amounts of teacher-student communication occur not in the physical classroom or the four-walled faculty office but through electronic exchanges, the location of which is utterly irrelevant even when it can be determined. What Robinson’s case tells us, with some urgency, is that we need standards and policies shaped for the vastly different conditions of cyberspace but addressed to the same concerns about student-faculty relationships and the teaching-learning process that traditional AAUP policies embody.

At least one other charge against Robinson draws little guidance from print-era policies. Critics have charged that he could face sanctions for the “intimidation” of his students. The charge reflects in part the anguish with which several Jewish students reported their immediate response to the e-mail as they alerted the ADL and others beyond the campus. Once again, traditional AAUP policies do seek to protect students from “exploitation, harassment, or discriminatory treatment.” That constraint would ban blatant proselytizing and (although the specific term is not used) might cover intimidation in the classroom. Thus, for example, purely oral but deeply offensive individually targeted statements of a sexual nature that “substantially impair the academic or work opportunity of students” may incur institutional sanctions (under proper procedures), despite the importance of preserving free speech in the college classroom.

Here the digital analogy is a bit less elusive. If a professor sends to an individual student an e-mail that amounts to blatant political proselytizing, or blatantly disparages that student’s religious faith, or conveys a sexual message of the type described above as potentially subject to sanction in the classroom setting, a comparable sanction might well follow the message despite the difference in medium. Yet by analogy to a crudely sexist joke unleashed to the entire class and targeted to none of its members, or an unfocused plea for support of a political cause or candidate, or a random cheap shot at a religious minority, a dispatch such as Robinson’s e-mail would seem to fall beyond the reach of the spirit of the most closely analogous print-era policies and sanctions.

The Need for New Policy

Before we sign off on that issue, however, one further dimension merits attention. The impact of Robinson’s e-mail was intensified severalfold by the “grisly photos” of Palestinian children currently at risk and of Jewish youth in peril during the Holocaust and by the analogy thus vividly created between the two sets of images. Oral communications in the classroom seldom include comparably disturbing or frightening images. Courts have elsewhere recognized the exceptionally affective nature of illustrated digital messages, notably the inclusion on at least one antiabortion Web site of fetuses shown dripping blood or of a virtual hand shown drawing a line through the name of a targeted physician as his assassination is about to occur. There can be no doubt that such imagery enhances the disturbing or unsettling impact of digital messages. To what extent the actual photos that Robinson attached did or likely would evoke such response is a matter that can be judged only by one who has viewed those images in context and must thus await another forum.

Finally, what about the underlying academic freedom issue? A university professor, whether or not he happens to be Jewish, is completely free to criticize Israel’s role in Gaza or any other facet of Israeli policy, whether or not his supporting data are entirely accurate. Doing so in a class on the sociology of globalization should be no different from any other course; even chemists and physicists and linguists must be free occasionally to venture such controversial views, provided that they avoid “persistently intruding material which has no relation to their subject,” in the words of the 1970 Interpretive Comments on the joint 1940 Statement of Principles on Academic Freedom and Tenure. Even more clearly, such material may be posted with impunity on a university-based Web site, much as Butz remains free to disclaim the Holocaust on his Northwestern University faculty home page.

Yet the relationship between a professor and his or her students—in the physical classroom or in cyberspace— is a special one, entailing a degree of trust and warranting special concern about a volatile message sent only to those students. It is worth recalling that, nearly a century ago, the AAUP’s first statement declared that a professor’s duty is “not to provide his students with ready-made conclusions, but to train them to think for themselves.” When it comes to cases such as the one now before us, there may be clear guiding principles but no easy answers, in major part because of the absence of policy tailored to new communications media. While attention focuses immediately on Robinson’s fate, we would do well to fill that policy gap before the next (and possibly even more troubling) case comes along.

Robert O’Neil is professor emeritus of law at the University of Virginia and director of the Thomas Jefferson Center for the Protection of Free Expression. He chaired the AAUP’s Committee A on Academic Freedom and Tenure from 1992 to 1999 and has chaired its Special Committee on Academic Freedom and National Security in a Time of Crisis.

 


Comments:

I have some modest disagreement with this one portion of Bob O'Neal's otherwise excellent review of academic freedom in cyberspace:

 "A university professor, whether or not he happens to be Jewish, is completely free to criticize Israel’s role in Gaza or any other facet of Israeli policy, whether or not his supporting data are entirely accurate. Doing so in a class on the sociology of globalization should be no different from any other course; even chemists and physicists and linguists must be free occasionally to venture such controversial views, provided that they avoid “persistently intruding material which has no relation to their subject,” in the words of the 1970 Interpretive Comments on the joint 1940 Statement of Principles on Academic Freedom and Tenure. "

Where, indeed,  however, a professor "intrude[s] material [into one of his classes] which has no relation to their subject," and does so, rather, simply to ventilate some strongly-held view he or she happens to hold, I do not think the event can be glossed as any part of that person's "academic freedom," not even a little bit.    It is not.  --To be sure, unless it becomes a "persistent" practice, I agree with the observation that it falls short of warranting an inquiry into the individual's continuing fitness to teach.  But that observation is very far from asserting that it is part of one's "academic freedom"  so to exploit one's command of a classroom quite gratuitously, zealously to "editorialize," whether on Gaza, preferred presidential candidates, Chinese policy in Tibet, or the relative merits (or demerits) of "organic" milk (i.e., to do so even without the pretense that it has something to do with the subject of one's course). This is not academic freedom, rather, it is "merely" a human failure (albeit perhaps no worse than nor even as bad as other failures each of us has no doubt experienced in our own careers).

W.V.A.


 I think that sending an email to students should fall under stricter guidelines than posting at a website.   It is inappropriate to impose personal agendas on students in this intrusive way. 

Students can choose whether to view and read a website while an email with graphic pictures will be seen as soon as they open their email.  

S.T.


I believe an important issue about professor Robinson's anti-Israel email was that he sent his message not just to students of the university but to his current (?) class, thereby imposing his extreme views on dependent persons who probably could not object out of fear of retribution. In cases of sexual harassment of students it is very important whether the student is in professor's class at the time of harassment. Evidently political harassment of dependent students is incompatible with the professional conduct as well.

Beyond this, I believe we educators always have to stick to scientific approach, seriously considering different points of view on any problem, and we should not take sides in political conflicts. Thus sending such an email to the university community in general would be a violation of the academic principles, in my opinion.

D.G.


With all due respect to my colleagues who view vast differences between print media and cyberspace, allow me to suggest that the issue is irrelvant and that such potential misues of academic power, as viewed in the examples within this article are very clear-cut; the medium not the focal point of the issue but the least important element of the debate. This article wants to enlarge the least important component while offering hesitation toward the most important element -- that of academic freedom or academic misuse. As one who teaches a full university course load online or with an ITV blend/ visual media, the rules of academic conduct do not change, nor does cyberspace allow for any variation of interpreting behavior than it would in "brick & mortar" information dissemination.
 
In essence, the question being ignored is "What is this statement teaching my students?" In all cases, a professor must ask this question and the response to this question should clearly supercede academic freedom. Our students, either in traditional course constructs or in cyberspace, are not a sounding board for our policitical ideals. We serve them -- not the other way around.
 
If we are engaged in true teaching, be it either traditional or hypertextual, then we would aggressively forgo our "political positions and emotive tantrums" - what we often call academic freedom -- and provide our students with both sides of an issue and allow them to decide as we provide them with the necessary tools to form the decision. Any violation of this deserves sanction regardless of the medium as we have ceased to recognize anyone except our own selves at that moment - -and that, in any setting, becomes dangerous to everyone.
 
As one who views hypertextual learning and cyberspace interaction as a breakthrough in true education interaction, I have to chastise the position of this article as attempting to use cyberspace as a mitigating factor in unprofessional behavior, shifting the light from academic persons who are abusing their position by attempting to suggest that technology is the culprit; that the medium is somehow responsible for the initiated behavior.
 
If you, my colleagues, were in my cyberclass, I could not write to you like this. I would have to show you both the article AND my response. My academic freedom does not extend to allow me to do less and the medium in which I am responding to this article and sharing with you, does not mitigate my responsibility if you were my students. If academic freedom allows for emotive self-aggrandizement under any medium then I would prefer neither as it is apparent the force of one leads to the destruction of the other.

T.E.


 I'd like to add to Robert O'Neil's stories what happened to me at a tech-savvy state university (one that should have known better), because it is not covered by current AAUP policy statements and because cases like mine are also a significant part of the history of cyberspace and academic freedom. 

Shared with Academe readers in Sept/Oct 2003, my story involved the campus police's warrantless seizure and search of my computer harddrive (and, of course, the files I'd stored there).  The basic privacy of faculty offices, clearly protected in the pre-digital era for public university employees by the Fourth Amendment, is being eroded by capricious computer seizures and searches--rationalized on the grounds that the university/state provides professors' computers and thus owns all the electronic files stored on them.  If we don't think the police or other campus officials should be able to waltz into our faculty offices with handtrucks and roll away with, say, fifteen five-foot tall filing cabinets full of our paperwork, then we shouldn't stand for their walking off with a 150-gig harddrive full of at least that much information just because a computer is easier to carry and search through. 

The cases discussed by O'Neil are widely known and caused controversy in part because people can so easily forward faculty members' emails and view their websites -- the reach of those faculty members' speech is faster and wider.  In cases like mine, however, documents that a professor has not distributed, published, or otherwise shared with students, university officials, or the public are being confiscated and investigated because the electronic environment makes taking them so easy.  It has astonished me to see how many faculty members--even some AAUP members--believe that the state has a right to claim ownership of our files and seize them whenever they wish.  Perhaps we would do well to remember that academic freedom requires not only careful considerations of the protection of faculty speech in the new electronic environment, but also the protection of faculty privacy in the electronic environment.

Martha McCaughey

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