Imagine a college student returning to campus next fall and being greeted by a student government representative who asks her if she is devoutly religious or not. She answers “yes” and the representative responds, “I am sorry, the student government has decided that the separation of church and state means that, as state college, we have to be free of religious students. You may want to consider a religious college.” Next imagine this befuddled student taking her complaint to the president of the college and he says “Yes, I know the student government’s interpretation of the Establishment Clause is wrong and utterly violates the U.S. Constitution, but I don’t want to interfere with their autonomy. Besides this is a ‘teachable moment.’ If they eventually get this ‘no religious students on campus’ decision in front of me, however, I will veto it. In the meantime, have you considered a religious college?”
While I have seen abuses of the Establishment Clause almost as ridiculous as this in my career, I use the above example to illustrate the absurdity of a public college delegating students’ constitutional rights to the student government. In cases across the country, however, administrations have stood idly by while student governments pass rules and make decisions that flatly violate the Constitution. One recent case that demonstrates this phenomenon involves the University of Wisconsin at Eau Claire, where the student government passed a rule in March banning groups with a "particular ideological, religious, or partisan viewpoint" from receiving student-fee funding.
This may not seem like a particularly big deal to some. What the students and many observers don’t seem to understand is that profound moral and constitutional principles are violated by this rule.
The case no one seems to have adequately explained to these students is the 2000 U.S. Supreme Court case Board of Regents v. Southworth. In that case a group of students (also at the University of Wisconsin, in that case at Madison) objected to the mandatory student fee because much of the money -- money they were forced to pay in addition to their tuition -- went to support groups they fundamentally disagreed with. This is a serious civil liberties concern. As bad as it may be to tell citizens what they can’t say, it is far worse to tell them what they must say, and perhaps worse still to tell them they must directly fund groups that they fundamentally oppose. Why, for example, should pro-life students be forced to give money to pro-choice student groups, or gay students be forced to give money to groups that believe homosexuality is sinful?
The Supreme Court in Southworth, however, did not see this as forced support of other’s opinions as long as certain conditions were met. In this unanimous decision, Justice Kennedy argued that, while people should not be forced to directly subsidize speech they despise, the student-fee system was more akin to a subsidy of free speech for all students in general -- as long as the collected funds were distributed without regard to the viewpoint of the student groups. The decision was a kind of constitutional compromise: public colleges may collect mandatory student fees if, and only if, student groups of every opinion (or no opinion at all) could apply for funds on an equal basis. While colleges would have every right to set up “viewpoint-neutral” criteria for funding, like requiring a certain number of students to be a members before being recognized or only funding on-campus events, the fact that students or administrators did not like the message of particular student group could not be used to deny a group funding from the mandatory student-fee pool.
Other options are also open to public colleges under Southworth. Public colleges can, for example, eliminate student fee funding altogether, or they can designate its use for narrow content-neutral categories, like designating fees exclusively for intramural sports, or monthly social events. The analysis gets trickier if a college with mandatory student fees banned groups with formal ties to outside political groups like the College Republicans or the College Green Party.
In order to stand a chance of surviving a Southworth challenge, the college would likely have to ban funding for all groups associated with outside organizations (a tricky and difficult standard to administer, that would doubtless prevent many students from forming the groups they would prefer to form) but even doing that would not rule out the chance of a lawsuit. Anytime administrations, and, in particular, student governments are empowered to take the content of a group into consideration the possibility of such a standard being used against groups with unpopular viewpoints (and, thereby, violating Southworth) presents itself.
Unfortunately Southworth’s requirement of “viewpoint neutrality” is often badly misunderstood and the Eau Claire student government has turned the concept completely on its head. Over the past year the student government and some members of the student media have interpreted "viewpoint neutrality" as meaning that they could not fund student groups that had any particular viewpoint or "bias." As part of growing trend coming from both the left and the right to route out "bias" on campus, a ranking student representative was even quoted in Eau Claire’s student newspaper as saying, "We want to exclude any groups that would be religious in nature, political in nature or anything that would have a political agenda [from being funded through student segregated fees]."
This statement directly contradicts numerous binding Supreme Court cases, including Southworth and Rosenberger v. Rector & Visitors of the University of Virginia, and flatly discriminates against both religious and secular viewpoints. Why didn’t the administration offer some guidance to the students? After all, the student government was publicly contemplating passing a rule that violated the U.S. Constitution for months.
The Foundation for Individual Rights in Education wanted to know why the administration was allowing their students to flounder and then flout the Constitution so blatantly, so it wrote the president and the upper administration. In an April 6 letter, FIRE emphasized a point that should be clear to any high school civics class: "As a state institution, the university and its administrators should understand that UWEC has a non-delegable duty to ensure that the First Amendment rights of its students are protected, and that no federal, state, local, or university rule, policy, or regulation can trump the exercise of rights guaranteed by the United States Constitution ." FIRE received a belated reply from the general counsel that allegedly the policy was “not yet in effect” and was pending review by her office, which would guide the university to deal with the policy in compliance with Southworth .
While this gives some hope that the rule will eventually be overturned, during the previous fall the student government refused to recognize a student magazine called The Flip Side because of its "progressive bias." The new, highly unconstitutional, regulation passed on March 14, 2005. The students have been laboring under the viewpoint that strong points of view are bad for months now. What exactly is the administration waiting for?
In previous situations where student governments have attempted to limit the free speech rights of other students, like University of Oregon where the student government stripped a student magazine’s recognition for poking fun at a transgender student representative who asked to be referred to as “zi” or “hir” rather than gendered pronouns like “he” or “her,” administrators essentially argued that that they did not want to interfere with the autonomy of the student government. While respect for the democratic process is commendable under some circumstances, one of the basics of our democracy is that there are some rights we deem too important to vote away. That is the reason why we have a Bill of Rights. The importance of the autonomy of the Eau Claire student government does not exactly match in importance the protection of free speech principles.
Some of the students seem to genuinely misunderstand the law here, and due to this misunderstanding they are violating the U.S. Constitution. As soon as administrators found out about this debate they should have informed the students that their interpretation of “viewpoint neutrality” was not just wrong but unlawful. Instead they have allowed student groups and the student government to fight it out among themselves with no apparent effort by the administration to defend the groups that were faced with these unconstitutional criteria.
Meanwhile students write editorials interpreting Southworth to mean "student fees could only be used to fund content-neutral organizations." If this is one of those "teachable moments" that educators talk so much about, it has failed. It is time the Eau Claire administration — and other universities where student harbor similar misunderstandings — do their job and teach their students what "viewpoint neutrality" really means.
Greg Lukianoff is director of legal and public advocacy for the Foundation for Individual Rights in Education.
In what may be the worst decision for college student rights in the history of the federal judiciary, the U.S. Court of Appeals for the Seventh Circuit this week turned back the clock a half-century and reinstated the old discredited doctrines of in loco parentis and administrative authoritarianism.
In Hosty v. Carter, the Seventh Circuit ruled by a 7-4 majority that administrators at public colleges have total control over subsidized student newspapers. But the scope of the decision is breathtaking, since the reasoning of the case applies to any student organization receiving student fees. Student newspapers, speakers and even campus protests could now be subject to the whim of administrative approval.
The case seemed like an open-and-shut example of unconstitutional suppression of dissent. On November 1, 2000, Patricia A. Carter, dean of student affairs at Governors State University, in Chicago’s south suburbs, called the printer of the student newspaper, the Innovator, and demanded prior approval of everything in the paper, which had annoyed administrators with its criticism of the university. Prior restraint is a classic violation of freedom of the press, and the editors Jeni Porche and Margaret Hosty soon sued the university.
Student press groups were alarmed when the Illinois attorney general’s office argued that the 1988 U.S. Supreme Court case Hazelwood School District v. Kuhlmeier should apply to college newspapers. The misguided Hazelwood decision has been an unmitigated disaster for high school journalists, and the possibility of extending it to college students is terrifying.
Terrifying, that is, for anyone who cares about freedom of the student press. But for the majority of the Seventh Circuit, Hazelwood was a legal opening for conservative judges who wanted to reach a predetermined result. If the majority opinion by Judge Frank Easterbrook had merely extended the censorship of Hazelwood to colleges, it would have been a principled decision; a terrible principle, but a principle nonetheless.
However, because Dean Carter’s action violated even the Hazelwood standard, these activist judges had to rewrite the Hazelwood precedent to justify the censorship of all student newspapers and activities. The judges had to eliminate Hazelwood’s restriction to curricular-based newspapers, and then had to eviscerate any constitutional protections for a “limited public forum” such as a newspaper. It took the judges 18 months from the time of oral arguments, and some convoluted reasoning, to achieve their goal.
The Hazelwood case declared that high schools could only censor student newspapers that were created as part of the curriculum. However, the majority decision in Hosty goes far beyond this, expanding censorship of high school papers as well by eliminating the “curricular” limit.
Jettisoning the Hazelwood standard restricting only curricular-based newspapers was merely the first of Easterbrook’s violations of precedent. He also annihilates the common understanding of “limited public forum,” a term created by the Supreme Court to provide a middle ground between the unregulated public forum (such as standing on a soapbox on the quad) and a non-public forum (such as a university-controlled alumni magazine).
“If the paper operated in a public forum, the university could not vet its contents,” Easterbrook wrote. He then asked, “was the reporter a speaker in a public forum (no censorship allowed?) or did the University either create a non-public forum or publish the paper itself (a closed forum where content may be supervised)?” Of course, a newspaper isn’t a public forum like a soapbox. It’s limited to the students who run the newspaper. By declaring that only a pure public forum is entitled to Constitutional protection, Easterbrook eliminates the First Amendment on college campuses for any limited public forum, including any student-funded activities.
“What, then, was the status of the Innovator?” Easterbrook continued. “Did the university establish a public forum? Or did it hedge the funding with controls that left the university itself as the newspaper’s publisher?” By his logic, the only speakers or newspapers on a public college campus that fall under public forum protection would be those that receive no funding from student fees or university funds (a rare commodity indeed). Any funding “controls” are directly tied to ideological controls.
Easterbrook concluded, “Freedom of speech does not imply that someone else must pay.” This is the philosophy of “he who pays the piper calls the tune,” and the Supreme Court has rejected it over and over again at public colleges.
Easterbrook is claiming that if the university can require student groups to follow funding rules designed to prevent fraud (and demand that student fee money be spent on a newspaper rather than, say, a private party), then the administration must be granted total control over the content of the newspaper.
A Break With Precedent
This is a bizarre conclusion, considering that the Supreme Court has repeatedly banned such control by colleges in funding cases.
In Rosenberger v. University of Virginia, the Court ruled that a public university cannot ban funding for a newspaper based on its religious content. Now the Seventh Circuit has declared that a public university may be obliged to fund a religious newspaper, but it can impose any control over its contents. In Board of Regents of the University of Wisconsin v. Southworth, the Supreme Court ruled that public colleges must ban all viewpoint discrimination in funding student groups. It would be bizarre if college administrators were granted the direct power to control the viewpoints expressed in student newspapers, while by expressly banned from making funding decisions based on viewpoint. Yet this is what Easterbrook’s opinion permits.
Any non-public forum that is funded by the university to any degree could be controlled and censored by administrators. Any use of campus space by a student organization is subsidized by the university, as are all registered student groups that receive any benefits or funding. Therefore, all of these groups are subject to total control by the administration under Easterbrook’s ruling.
In essence, Easterbrook argued that there is only one kind of censorship that is impermissible on a public college campus: banning someone from speaking for free on a soapbox on the quad. In all other cases, under the Hosty v. Carter ruling, college administrators across the country now have a green light to ban anything they want, from controversial campus speakers to critical student newspapers.
Although the Hosty ruling itself only applies to Illinois, Indiana and Wisconsin, the states covered by the Seventh Circuit, the “qualified immunity” test allows any public college administrators to avoid damages in any case where the law is unclear -- and the Hosty case certainly makes freedom of the student press an unclear idea.
The Hosty decision could also affect faculty academic freedom. If college students have no more Constitutional protections than first graders do, then college professors may have no more rights than elementary school teachers. Decades of cases establishing the unique legal status of colleges and academic freedom, based on the maturity and rights of college students, might be wiped away if Hosty is upheld.
Easterbrook also hauled out the dubious idea of institutional academic freedom: “Let us not forget that academic freedom includes the authority of the university to manage an academic community and evaluate teaching and scholarship free from interference by other units of government, including the courts.” If “academic freedom” means only the power of administrators to “manage an academic community,” then students and professors alike will be subject to censorship by the administration.
The Innovator has been shut down for almost five years, replaced by the administration with a more pliable newspaper where students never investigate or criticize their college. Unless the Supreme Court reverses the Seventh Circuit’s unprecedented act of conservative judicial activism, the Innovator may only be the first among many newspapers and student organizations silenced by administrators at public colleges, with the blessing of the courts.
On Tuesday -- as the republic awaited the formal launch of the latest Supreme Court nomination death-match -- Stanley Fish appeared in The New York Times with a short article titled "Intentional Neglect." Its thesis is sharp, bold, and deceptively straightforward.
As we enter the inescapable squall of debate over who shall take the place of Sandra Day O'Connor, announces Fish, we need to be clear on some basic things. Interpreting the Constitution is a matter of determining its authors' intent. Talk of "a living constitution" that must remain open to the changing times -- that, in short, is not interpretation, but a roundabout means of rewriting the Constitution.
The response in some quarters has involved gestures of shock -- and from one or two conservatives, anyway, of gratified astonishment. How sensible the man is! What a voice for sweet reason! Is this Stanley Fish not the same man who turned the English department at Duke into a training camp for left-wing theoretical guerillas? Has he perhaps had a change of heart?
Fish is widely recognized, even outside academe, as a celebrity and a power broker. He is the one person at the annual convention of the Modern Language Association who does not wear a name tag. And he has a well-established profile as the champion of the anti-foundationalism that non-academic civilians understand to be the, well, foundation of contemporary academic radicalism.
So when he goes on "The O'Reilly Show" -- or weighs in with an op-ed in the Times -- many people naturally assume that Fish is speaking as some kind of leftist. Hence the surprise at his latest article, which at least some readers might take as an application to join the Federalist Society.
All of which underscores the difference between being well-known and being well-understood.
There is nothing in Tuesday's op-ed that Fish hasn't argued many times over the years. Many, many times, over many, many years. (Whatever debate may exist over his other virtues, the man is a stickler for consistency.) But he is so famous that his ideas have long since been dwarfed by his reputation.
His current stress on the framers' intent as the necessary focus of interpreting the Constitution sound paradoxical, coming from a literary theorist who came into prominence, in the 1970s, as the most dogged champion of reader-response criticism. Actually, there is a pretty direct line of march from one position to the next.
One modest claim in favor of the reader-response school might be that its very name was a case of truth in advertising. (I speak of it in the past tense because it's been some while since the movement was at its peak. No doubt there are still a few partisans still fighting for the cause, like those stray Japanese soldiers from World War Two who used to turn up on islands in the Pacific.) Reader-response analysis involved looking at how the audience of a literary work interacted with it -- how, in a sense, the meaning of a text was produced at the moment the reader was consuming it.
That sounds like a recipe for, well, just making stuff up. Mix one part epistemological relativism and one part narcissism, and you get the sophomore's hermeneutic: "That's what the book means to me." Add a dash of paranoia, and you get: "I think Shakespeare was a Freemason, and my reading is as good as any other."
But you can't judge a method by its most inane or implausible applications. In the case of Fish's version of reader-response analysis, there was a sort of hermeneutic shock-absorber built right in. He called it "the interpretive community." An individual reader might come up with some bizarre personal meaning for a work. For the most part, however, reading is conditioned by one's membership in groups, and those groups tend to create something like a consensus about what counts as the range of sound understanding. There are rules for what counts as good evidence, or a well-made argument.
Normally those rules aren't written down someplace. They exist at the level of tacit knowledge; you either absorb them and read accordingly, or you aren't really part of that particular community. And the rules can change over time. A work's meaning isn't fixed for all time, like a face sculpted in marble. Nor does it change at random, like a kaleidoscope image. It's more like the various productions of a play -- varying over time depending on who's directing, who's acting, and how big the stage is.
Fish's later writings on law and on current issues are, in effect, an expansion of the idea of the interpretive community to the world beyond the printed page. We participate in institutions and in civic life in the same sense that we read and understand a work of literature -- as people who always find ourselves embedded in a structure of rules, assumptions, traditions, etc., that implicitly govern what counts as acceptable.
From Fish's perspective, it is the mistake of a certain kind of fundamentalism (religious or secular) to think that we can get to the level of bedrock truths that aren't so conditioned. Or to think that, by reasoning, we can ascend to lofty heights of abstraction, far above all the diverse and squabbling micro-communities. You never get outside of some kind of interpretive community, following rules that are socially constructed.
But that doesn't mean they are imaginary -- that anything goes.
Fish's often uses the game of baseball as his example of something that is both socially constructed and real. Does a baseball or bat exist in nature? Does "three strikes and you're out" follow from any law known to the sciences? The answer, in each case, is "no." Are baseballs and bats real? Does the three-strikes rule have predictable effects on the course of the game? Likewise, the answer is "yes." So the game of baseball is both socially constructed and real. It is the product of human activity, but not subject to anybody's whim. (The umpire's eyesight, yes. But that doesn't gainsay Fish's basic point.)
Now, talk of social construction always sounds like it might have a radical agenda. To anyone who thinks in terms of natural law, it reeks of Jacobinism. After all, if something is socially constructed, that means that it might be re-constructed, right? And that means it probably should be, at some point.... The next thing you know, there are guillotines.
But actually, if you look at them closely, Fish's ideas seem a bit closer to the counter-Enlightenment doctrines that emerged following the French revolution. The binding force of community, the subordination of reason to the implicit code of tradition, the sense that our freedom is limited (or at least conditioned) by rules that can't be redrawn all at once ... this sounds a little bit like something from Edmund Burke, or at least from Russell Kirk's The Conservative Mind.
Not to go overboard with this. When he gives voice to political opinions (in favor of affirmative action, say, or in defense of speech codes) he tends to sound like a garden-variety liberal. But Fish has been very skeptical of the academic left, on the grounds that radical professors tend to blur the distinction between scholarship and political activity. As he argued in Professional Correctness, published 10 years ago by Harvard University Press, "queering Shakespeare" isn't political in the same sense as mobilizing to increase AIDS funding; rather, it's a matter of making certain moves in the interpretive community that is interested in Elizabethan literature.
In Fish's own words: "There are no regular routes by which the accomplishments of academics in general and literary academics in particular can be transformed into the currency of politics." And the effort to bring his ideas to bear on legal theory, over the years, have not really disproved that point.
In effect, Fish's writings have been a way of minimizing the possible interaction between law and literature. He has argued -- with exhausting, even wearying consistency -- that the conduct of legal affairs is ultimately a matter of the legal interpretive community following its own codes, traditions, and methods.
A case in point is Fish's seemingly straightforward claim that "interpreting the Constitution" means "trying to figure out what the framers had in mind." That sounds like a directive -- as if Fish is saying that we'd just need to find the right quotation from The Federalist Paper, perhaps, to understand how to apply the Constitution to legislation regarding stem-cell research. And there is, then, a strong tendency to assume that such an interpretation would then tilt toward the conservative side.
But not so fast. As Fish noted in a discussion of the Bork nomination, it is a mistake to cede "original intent" arguments to the right, just because some conservative jurists frame their arguments in those terms.
"It is perfectly possible," wrote Fish, "to be in favor of abortion rights and also to label oneself as an originalist, as someone who hews to the intention of the framers. It would just be a matter of characterizing those intentions so that the right to abortion would seem obviously to follow from them.
One might, for example, argue (as many have) that even though the Fourteenth Amendment nowhere mentions abortion rights, a correct understanding of its authors' more general intention requires that such rights be protected." Likewise, one could argue against abortion rights on grounds that aren't anchored in claims about original intent.
"In short, there is no necessary relationship between declaring oneself an originalist and coming out on one side or the other of a particular issue."
Putting it another way, the effort to define "original intent" is both a basic part of the work of the legal interpretive community and a product of rules specific to that community. Some sharp-eyed person may well put my head on a platter for saying this, but what the hell: It sure looks as if Stanley Fish has reinvented legal positivism by way of a kind of roll-with-the-punches pragmatism.
Speaking of punches ... they should start flying any minute now. What does Fish have to say about the debates that are about to ensue? How should the issues of the nomination fight be understood by those of us who are mere citizens of the Republic, rather than members of the legal interpretive community? His advice, in short, is to recognize that it's not a question of whether or not the nominee is an originalist, but rather, of what kind.
"So," as he put it on Tuesday, " if you want to know how someone is likely to act on the bench, you will have to set all the labels aside and pay attention to the nominee's reasoning in response to the posing of hypothetical situations.... Does he or she construe intention narrowly and limit it to possibilities the framers could have foreseen, or is intention considered more broadly and extended to the positions the framers would likely have taken if they knew then what we know now? ... And then, if after having made that calculation you decide you are for this person, you can hope that the performance you see today predicts the performances of years to come. But don't bet on it."
There may be a certain amount of insight in Fish's thoughts. Still, it seems like the kind of wisdom that doesn't really do anybody much good.
When people think about a "threat," they tend to imagine a variety of dark scenarios -- from the mugger in the alley who says, “Your money or your life,” to the chilling answering machine message where a faceless person says, "I will kill you.” Threats like those have never been considered "free speech." In fact, true threats are a crime. In general, for a comment to qualify as a true threat, it must cause reasonable people to believe that they are going to be physically harmed.
Unfortunately, many colleges -- eager to ban speech that administrators or students do not like -- have latched onto the "threat” exception of the First Amendment to justify banning speech that is not actually threatening (as the term has been defined by the law) but instead is merely offensive to the listener. Redefining a “threat” as anything that offends is a dangerous game that discredits accusers, underestimates students' ability to cope with ideas they dislike, and trivializes the seriousness of actual threats of violence.
The latest example of this disturbing trend comes from William Paterson University, a public university in New Jersey. Jihad Daniel, a master’s student and university employee, privately responded to a mass e-mail message sent by a professor, Arlene Holpp Scala, announcing a campus showing of Ruthie and Connie: Every Room in the House, a film Scala described as a “lesbian relationship story.” The e-mail provided a link so that recipients could contact Scala. In his response, Daniel, a devout Muslim, wrote, "Do not send me any mail about ‘Connie and Sally’ and ‘Adam and Steve.’ These are perversions. The absence of God in higher education brings on confusion. That is why in these classes the Creator of the heavens and the earth is never mentioned." That is the entirety of his response. All too predictably on the contemporary campus, Scala brought charges against Daniel for making her "feel threatened at [her] place of work." Showing complete disregard of the right to dissent protected under the First Amendment, the university found Daniel guilty of "discrimination" and "harassment."
Scala’s reliance on the claim that she felt “threatened” is especially disturbing. Did she really fear that this 63-year-old man would harm her, just because they disagree about homosexuality? Yes, many people might find Daniels’ opinion offensive, but the expression of a religious opinion is hardly a threat.
Sadly, Daniel’s case is just one example of how threat allegations are abused on campus. For example, Ursula Monaco, a part-time student at Suffolk County Community College, on Long Island, was punished in 2003 for an e-mail message she accidentally sent to her professor in which she referred to the professor as a "cunt." Even though that the e-mail was clearly addressed to someone else and that the First Amendment has no exception for even the c-word, Monaco was found guilty of both “harassment” and “intimidation.”
To clarify, “intimidation” in the legal sense is essentially the same thing as a threat and doesn’t occur any time a person feels intimidated; such a vague and broad standard would devour free speech. According to the Supreme Court, intimidation is “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Did the Suffolk County professor really believe she was in physical danger because of a single profanity uttered by a 55-year-old grandmother? Unlikely. Yet the administration deemed her guilty of "threatening, intimidating," and "harassing" the professor. Fortunately, the Foundation for Individual Rights in Education came to Monaco’s defense. After eight months of corresponding with the college, the administration eventually decided to “suspend” the punishments.
It was clear from the start that Suffolk County’s administration had used the e-mail as a pretext for severely punishing Monaco, who was a student journalist and a persistent critic of the administration. Tellingly, her punishment included being banned from having “any contact with the student newspaper,” and stipulated that she “may not contact the office” of any school paper by “any means, including mail, telephone or e-mail,” that she “may not submit articles” to any college paper, or “propose or suggest an article to anyone associated with a campus newspaper.” She was even banned from “approach[ing] any member of the campus community for the purpose of collecting information with which to write a news article.”
For those familiar with history, there is nothing surprising about people in positions of power using perceived exceptions to free speech to silence vocal critics. In fact, the very predictability that cases like Monaco’s will arise is why we must be careful not to allow legitimate exceptions to free speech, like threats, to grow into amorphous, easily abused concepts.
Students are not the only ones harmed by college administrators’ expansive use of the concept of threats. At the University of Alaska at Fairbanks, a professor, Sandra Bond, was punished by the administration for posting two signs on her office in 2003. One said, "The End is Near," while the other was a K-Mart advertisement for guns and ammunition. The first sign referred to her contract being almost finished and her leaving the university, while she posted the latter because she found K-Mart’s slogan "The Stuff of Life" ironic in an ad for firearms. Bond, who was in her mid-40s -- and who walked with a cane due to multiple sclerosis -- had apparently scared the criminal justice department so badly that she was found guilty of threatening and intimidating the department, and placed on “administrative leave…effective immediately.” They even forbade her from entering her office building without official permission.
Do cases like those at William Patterson, Suffolk and Alaska arise from a pervasive misunderstanding of what "threats" actually mean? The recent case at Washington State University might suggest a more cynical answer. A student, Chris Lee, wrote and produced an intentionally provocative comedy/musical mocking The Passion of the Christ. In the spirit of South Park, the play went out if its way to mock everything from race, to religion, to sexual orientation, to stereotypes themselves. To make sure people knew what they were getting into, the play was widely publicized as being potentially "offensive or inflammatory to all audiences," and identification was checked at the door to prevent those 17 or under from entering.
At the April 21, 2005, performance of the play, approximately 40 student protestors attended. The protestors stopped the play several times with shouts and threats. Unlike those in the cases above, these threats were crystal clear. According to Lee, and a tape of the performance, these threats included, “I kill you,” “You better watch out,” “Get off of there or I’ll mop your fucking head,” “We will get you outside,” and, “We will kill you.” Washington State's security refused Lee’s request to remove the protestors and even told Lee to change the lyrics to one of his songs “to avoid a possible riot or physical harm.” As FIRE wrote at the time, “Washington State security’s obligation was to protect the performance -- not to enforce the will of a mob that it claimed teetered on the brink of violence.”
Surely, Washington State would not tolerate actual unlawful intimidation of a student production. After all, the university had already produced The Vagina Monologues, as well as Tales of the Lost Formicans, which included a depiction of a character masturbating onto an American flag. Certainly, Washington State administrators understood that they must not empower mobs to silence any performances that might offend their sensibilities? Well, they may have understood that, but in this case, they didn’t care. Not only did the president of the university defend the mob’s actions as a “responsible” exercise of their free speech and refuse to reprimand the campus police, but it turns out Washington State actually purchased the tickets for the protestors in the first place!
So in one case a 63-year-old student, and in two others two middle aged women (the taller of the two is 5’4”), are portrayed as placing other adults in mortal terror, while a mob of 40 angry students disrupting a play and shouting death threats is called a “responsible” exercise of free speech!? These kinds of distortions and double standards are all too common on the contemporary campus. The danger posed by the above cases, however, are especially grave. Washington State's reliance on violent mobs to silence social satire is especially chilling and reminiscent of dark chapters in our history. While in cases like Washington State or Suffolk, the administrators seem to fail to understand that by relying on such a loose definition of “threats” they may undermine how seriously the public takes real claims in the future. It may be time for a refresher course in The Boy Who Cried Wolf 101.
Greg Lukianoff and Azhar Majeed
Greg Lukianoff is director of legal and public advocacy of the Foundation for Individual Rights in Education. Azhar Majeed is a second year student at University of Michigan Law School and a summer legal intern for FIRE.
The rule of law is to the routines of an ordinary, civilized existence roughly what oxygen is to long division. It's not actually part of the equation, but you can't actually make the calculations without it. Not that it guarantees justice. There may be lapses, omissions, misfires; and if the laws themselves are bad, then the rule of law can bring misery. And there's more to life than regularity. Profound truths may by revealed by transgression, charismatic authority, and ecstatic excesses embodying the creative and destructive dimensions of poetry, mystery, and the sacred. (That said, I'd still rather live in a city with zoning ordinances.)
In The Law in Shambles -- just published in the Prickly Paradigm series, distributed by the University of Chicago Press -- Thomas Geoghegan offers an incisive criticism, from the left, of the idea that the expression "rule of law" is at all appropriate to the way we live now. His booklet is conversational, wide-ranging, and absolutely terrifying. It deserves a wide readership.
In saying that Geoghegan's perspective comes "from the left," I've made room for misunderstandings that should be cleared up right away. First of all, he's not denouncing the whole concept of rule of law as a more or less streamlined way of carrying out the "golden rule" of capitalism, that he with the gold makes the rules. (That's the paleo-Marxist position. Some of the International Socialist Organization activists on your campus might make this argument.) Nor is Geoghegan criticizing actually existing constitutional democracy (as we might call it) from the vantage point of some "original position" of fairness, A Theory of Justice-style.
The author is a labor lawyer (though he has also been a fellow at the American Academy in Berlin). He's arguing from his own court cases, and from perceived trends -- not from first principles. He once loved the work of John Rawls, and the dream is not quite dead; but really, that was a long time ago. "Ever since he wrote that book," Geoghegan says, "it's as if someone with a voodoo doll put a hex on his whole approach."
No, Geoghegan's criticism is less abstract, more crunchy. It's not just that respect for the awesome majesty of the law is now largely pro forma. Rather, in important regards the whole edifice has been gutted; before long, there won't even be any nails holding the facade together.
The increasingly robust and strident contempt for the judiciary expressed by the American right is only part of it, if the most bewildering for anybody who remembers the old conservative motto of "law and order." Now the emphasis is just on order, plain and simple. And not in the sense conveyed by Jack Webb's no-nonsense demeanor on Dragnet. More like Joseph de Maistre's rhapsody over the hangman's role as cornerstone of civilization.
Which is worrisome, no doubt about it. But Geoghegan is more concerned about the low-key, day-to-day degradations of the rule of law. Consider, for example, the case of the rat turds. Geoghegan worked on a brief on behalf of workers who had lost their jobs when a chicken-processing plant shut down -- suing on their behalf under the Worker Adjustment and Retraining Notification (WARN) Act, which requires that a factory owner give employees 60 days notice that a plant will be shut down. To this, the chicken-processing guy had a ready answer: He had been shut down by the Department of Agriculture for health-code violations -- an unforeseen contingency, he said.
He had an argument, says Geoghegan: "Yes, he may have done bad things, and let rats run wild, and let rats shit on the chicken meat. And yes, it is even true that the inspectors of the Department of Agriculture gave him 'write-ups.' But here is the issue: Was it reasonable for the owner to foresee that the DOA would enforce its own regulation?" After all, everybody in the business knows that you get the write-up and pay the fine.
"That," as Geoghegan says, "was his claim: DOA is more or less a joke. Under Bush I, then Clinton, and then Bush II, it's gotten worse.... Now comes the ruling of the district judge, who is a liberal, a Clinton appointee: Yes, he says, it was unforeseeable. It was as if he took judicial notice that, as a matter of common knowledge, the government does not enforce the laws.... In other words, the application of the rule of law is the equivalent of an 'act of God.' Like a hurricane."
Behind such incidents, the author sees at work an intricate play of mutually reinforcing tendencies. One is the weak and shrinking labor movement. Another is the long-term decline in voter turnout (thereby eroding any checks on wingnuttery that may exist within the ideological sphere). And then there is the systematic underfunding of enforcement for whatever regulations of the economic sphere are still on the books. The legal center of gravity of civil society shifts from contract (with its schedule of benefits and obligations) to tort (so that the only right that matters is the one to collect on damages).
Some of this is familiar, but ne'er so well expressed. Were there a serious movement in this country to challenge the present course of things, The Law in Shambles would be available in a grubby newsprint version selling for 10 cents, and distributed by the hundreds of thousands. Instead, you have to pay 10 bucks for it. This is not good.
Sometimes our tools are our politics, and that’s not always a good thing. Last week, the Copyright Clearance Center announced that it would integrate a “Copyright Permissions Building Block” function directly into Blackboard’s course management tools. The service automates the process of clearing copyright for course materials by incorporating it directly into the Blackboard tool kit; instructors post materials into their course space, and then tell the application to send information about those materials to CCC for clearance.
For many, this move offers welcome relief to the confusion currently surrounding the issue of copyright. Getting clearance for the materials you provide to your students, despite the help of organizations like CCC, is still a complicated and opaque chore. Instructors either struggle through the clumsy legal and financial details or furtively dodge the process altogether and hope they don’t get caught. With the centralization offered by CCC and now the automation offered by this new Blackboard add-on, the process will be more user-friendly, comprehensive, and close at hand. As Tracey Armstrong, executive vice president for CCC, put it, “This integration is yet another success in making the ‘right thing’ become the ‘easy thing.’”
Certainly, anything that helps get intellectual resources into the hands of students in the format they find most useful is a good thing. I have no doubt that both the CCC and Blackboard genuinely want the practical details of getting course materials together, cleared, and to the student to be less and less an obstacle to actually teaching with those materials. But I’m skeptical of whether this “easy thing” actually leads to the “right thing.” Making copyright clearance work smoothly overlooks the question of whether we should be seeking clearance at all -- and what should instead be protected by the copyright exception we’ve come to know as “fair use.”
Fair use has been the most important exception to the rules of copyright since long before it was codified into law in 1976, especially for educators. For those uses of copyrighted materials that would otherwise be considered an infringement, the fair use doctrine offers us some leeway when making limited use for socially beneficial ends.
What ends are protected can vary, but the law explicitly includes education and criticism -- including a specific reference to “multiple copies for classroom use.” It’s what lets us quote other research in our own without seeking permission, or put an image we found online in our PowerPoint presentations, or play a film clip in class. All of these actions are copyright violations, but would enjoy fair use protection were they ever to go to court.
But there is a dispute, among those who dispute these kinds of things, about exactly why it is we need fair use in such circumstances. Some have argued that fair use is a practical solution for the complex process of clearing permission. If I had to clear permission every single time I quoted someone else’s research or Xeroxed a newspaper article for my students -- figuring out who owns the copyright and how to contact them, then gaining permission and (undoubtedly) negotiating a fee -- I might be discouraged from doing so simply because it’s difficult and time-consuming. In the absence of an easy way to clear copyright, we have fair use as a way to “let it slide” when the economic impact is minimal and the social value is great.
Others argue that fair use is an affirmative protection designed to ensure that copyright owners don’t exploit their legal power to squelch the reuse of their work, especially when it might be critical of their ideas. If I want to include a quote in my classroom slides in order to demonstrate how derivative, how racist, or maybe just how incompetent the writer is, and copyright law compelled me to ask the writer’s permission to do it, he could simply say no, limiting my ability to powerfully critique the work. Since copyright veers dangerously close to a regulation of speech, fair use is a kind of First Amendment safety valve, such that speakers aren’t restricted by those they criticize by way of copyright.
This distinction was largely theoretical until organizations like CCC came along. With the help of new database technologies and the Internet, the CCC has made it much easier for people to clear copyright, solving some of the difficulty of locating owners and negotiating a fair price by doing it for us. The automatic mechanism being built into Blackboard goes one step further, making the process smooth, user-friendly, and automatic. So, if fair use is merely a way to account for how difficult clearing copyright can be, then the protection is growing less and less necessary. Fair use can finally be replaced by what Tom Bell called “fared use” -- clear everything easily for a reasonable price.
If, on the other hand, fair use is a protection of free speech and academic freedom that deliberately allow certain uses without permission, then the CCC/Blackboard plan raises a significant problem.
The fact that the fair use doctrine explicitly refers to criticism and parody suggests that it is not just for when permission is difficult to achieve, but when we shouldn’t have to ask permission at all. The Supreme Court said as much in Campbell v. Acuff-Rose (1994), when Justice Kennedy in a concurring decision noted that fair use “protects works we have reason to fear will not be licensed by copyright holders who wish to shield their works from criticism.” Even in a case in which permission was requested and denied, the court did not take this as a sign that the use was presumptively unfair. Fair use is much more than a salve for the difficulty of gaining permission.
Faculty and their universities should be at the forefront of the push for a more robust fair use, one that affirmatively protects “multiple copies for classroom use” when their distribution is noncommercial, especially as getting electronic readings to students is becoming ever cheaper and more practical.
Automating the clearance process undoes the possibility of utilizing, and more importantly challenging, this slow disintegration of fair use. Even if the Blackboard mechanism allows instructors simply not to send their information to CCC for clearance (and it is unclear if it is, or eventually could become, a compulsory mechanism), the simple fact that clearance is becoming a technical default means that more and more instructors will default to it rather than invoking fair use.
The power of defaults is that they demarcate the “norm”; the protection of pedagogy and criticism envisioned in fair use will increasingly deteriorate as automatic clearance is made easier, more obvious, and automatic. This concern is only intensified as Blackboard, recently merged with WebCT, continues to become the single, dominant provider of course management software for universities in the United States.
Technologies have politics, in that they make certain arrangements easier and more commonplace. But technologies also have the tendency to erase politics, rendering invisible the very interests and efforts currently working to establish “more copyright protection is better” as the accepted truth, when it is far from it.
As educators, scholars, librarians, and universities, we are in a rarified position to fight for a more robust protection of fair use in the digital realm, demanding that making “multiple copies for classroom use” means posting materials into Blackboard without needing to seek the permission of the copyright owners to do so.
The automation of copyright clearance now being deployed will work against this, continuing to shoehorn scholarship into the commercial model of information distribution, and erase the very question of what fair use was for -- not by squelching it, but simply by making it easier not to fight for it and harder to even ask if there’s an alternative.
Tarleton Gillespie is an assistant professor in the Department of Communication at Cornell University, and a Fellow with the Stanford Law School Center for Internet and Society.
As the academic year unwinds, college administrators across the country anxiously await the inevitable bad news from their campus safety departments. In addition to relatively minor infractions of campus rules and regulations, there will be binge drinking, the plagiarizing of papers, and often much worse, such as acts of physical and sexual violence. It is clear that students who commit serious and violent criminal offenses must be expelled, for the safety and well-being of all. But what of the majority who commit lesser violations of campus or criminal codes? Are we using the best approaches to hold such students accountable for their actions and to meet the needs of harmed parties and the campus community?
Though colleges and universities are generally viewed as forward-thinking, even experimental, campus judicial responses generally rely on uncreative, cookie-cutter sanctions. Judicial officers are overly cautious in response to liability concerns, outcomes are often dissatisfying to victims and offenders in the process, and the system has been unable to change campus cultures dominated by partying. Campus judicial responses are lagging behind the criminal and juvenile justice systems in our society in using new, effective strategies. College campuses are ideal places to develop and test such strategies, but so far our institutions of higher learning have largely stayed out of the loop on this matter.
"Restorative justice" is a new response to offending behavior and the approach has a proven track record in criminal and juvenile justice cases. Not only does it reduce recidivism, but it is widely perceived by offenders and victims as fair and better able to meet their emotional and material needs than traditional retributive responses. Restorative justice approaches to student misconduct are a promising tool that liberal arts colleges such as Skidmore College and large public institutions like the University of Colorado are using effectively to change campus culture.
Restorative approaches call upon offenders, victims, and community members to participate in the decision-making process following a campus violation. Through open dialogue, each participant comes to understand the full impact of the offense, educating the offender about the consequences of his or her behavior. This alone is a powerful device for eliciting sincere expressions of remorse and commitments to right the wrong. Articulating the harm in detail also paves the way for creation of a restorative agreement -- a list of tasks tailored to repair the harm and rebuild the community’s confidence in the offender. Typically, such tasks include apology letters, further research on the impact of the harm, restitution, community service that is linked to the offense, and activities that better integrate the offender into the campus community. At Skidmore, students cannot register for the next semester’s classes until their restorative agreements are completed. This is a direct message that it is up to the offenders to take responsibility not only for their prior misconduct, but also for their future education.
Three cases, drawn from a variety of institutions nationally, help to illustrate this approach. The first involved a group of athletes who stole and made use of disabled parking placards. The incident generated significant ire among the disabled community. A restorative conference was held with the athletes and affected parties, including professors and students with disabilities. The dialogue enabled the athletes to learn the impact of their behavior and reduce the tension between these groups. While the athletes took responsibility for their behavior in several ways, it is notable that a major component of the restorative agreement was a collaboration with educational goals. The athletes and some of those with disabilities agreed to co-produce a video about disability issues and to present workshops during first year student orientation.
The second case was a response to a theft by a drunken student. Walking home from a bar, a student stole a public art object that was part of a citywide project of the local arts council. Participating in the restorative dialogue was the student the local artist, the store owner who sponsored the artist, and the director of the city arts council. Each was able to express how he or she was affected by the theft. By the end of the meeting, the offender committed to completing 100 hours of community service at the arts council, paying the costs of repairing the artwork, helping write a guide to proper conduct for students living off-campus, completing an alcohol use assessment, and organizing an alcohol-free social event on campus. Later, when the case reached the criminal court, the prosecutor and judge were impressed that the campus obligations were more onerous than the fine and probation they intended to impose. Restorative justice, they realized, was not soft on crime.
The third illustrates the use of restorative justice in an academic case, highlighting how the approach is particularly relevant to the educational setting. Here, a student plagiarized a paper, and appeared before a restorative panel to discuss the harmful consequences and create a plan of action. During the discussion the student learned about the disappointment and sense of betrayal expressed by her professor. The panel members were able to learn about the student’s lack of confidence in her ability to write a "college-level paper." The group agreed to a restorative contract that included several items: rewriting the paper to demonstrate a proper use of sources, an apology to the professor, and a presentation to the campus community about academic integrity and how to protect it.
Such examples illustrate the educational nature of the restorative approach, rather than having the response be simply punitive. Students are expected to reflect on the consequences of their actions. They are asked to take active responsibility for making amends. They must demonstrate their ability to be pro-social members of the community. With such an approach, there is rarely a need to suspend students for their misconduct because the response is sufficiently demanding and highly supervised. Students are not let off the hook, but they are not ostracized either. Most often, the best place for them is on campus, facing the problem directly. Campuses can do much more than cut and paste the standard issue disciplinary code. Already, job ads for campus judicial officers are calling for backgrounds in restorative justice, and this is a good sign. Now, all we need are the programs for them to run.
David R. Karp
David R. Karp is an associate professor of sociology and director of the Law and Society Program at Skidmore College.
A federal appeals court’s recent decision demonstrates how even an eminent jurist can be confused by the complex regulatory system established by the Higher Education Act, with potentially significant negative consequences for colleges and universities.
In United States ex rel. Main v. Oakland City University, Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit authored an opinion for a three-judge panel that reversed a District Court decision and permitted a qui tam action to proceed under the False Claims Act. In that action, a former director of admissions for a university contended that the institution had violated the prohibition in the HEA and the U.S. Department of Education’s implementing regulations against paying incentives for enrolling students.
The False Claims Act is aimed at obtaining restitution to the government of money taken from it by fraud, and liability under that Act occurs when someone presents to the government a false or fraudulent claim for payment. In a qui tam action, a private individual -- the “relator” -- files a lawsuit seeking this restitution. The government may decide to take over the case, and the relator may obtain a financial reward if the action is successful.
Qui tam cases are a mixed bag. On the one hand, the government obtains the assistance of private individuals to extend its investigative and litigation resources to protect the integrity of government programs. On the other hand, given the vast array of federal programs and the volumes of requirements that result from them, qui tam actions offer fertile ground for trial lawyers seeking a supply of new business and a potent weapon to force settlements from organizations that participate in government programs. The key, of course, is for the courts to scrutinize these actions carefully and to circumscribe them to achieve the purposes of the False Claims Act.
This is what Judge Easterbrook’s opinion failed to do. His failure is all the more surprising in light of his reputation not only as a highly capable jurist, but as a conservative one presumably skeptical of broad constructions of federal law that fuel the litigiousness of the plaintiffs’ bar.
Fundamentally, Judge Easterbrook’s opinion simply got wrong crucial aspects of the regulatory structure established by the HEA. The opinion failed to understand the distinction between eligibility and participation in the student aid programs.
An institution establishes its eligibility under the HEA by filing an application with the Department of Education. However, an institution need not actually seek participation in the HEA student aid programs in this application. It may simply wish to be designated as eligible to participate because that status has significance apart from gaining access to the financial aid funding available to its students under Title IV of the HEA.
Furthermore, the application does not require the institution to certify its compliance with all HEA requirements. The eligibility requirements are more limited and, as pertinent to the Oakland City case, nowhere include any certification by a college that it complies with the incentive compensation prohibition.
Only when an institution seeks to be certified to participate in the student aid programs does it agree to comply with the many participation requirements applicable to those programs. It does so by signing the Program Participation Agreement (PPA), which does include a representation that it will not violate the incentive compensation prohibition. Even then, however, the institution has made no actual claim for federal funds. That may occur only when it helps students apply for Title IV loans and grants.
Judge Easterbrook dismissed this structure as “paperwork,” and this led him into error. Thus, early in the opinion, he stated that the university had assured the Department of Education in its eligibility application -- what he calls the “phase one application” -- that it would comply with the rule against incentive compensation. But, as noted above, that is simply wrong -- a college does not agree to comply with the incentive compensation rules until it formally seeks certification to participate in the program.
Easterbrook then went on more critically to state that the “phase two” application -- presumably the PPA and subsequent student applications for Title IV funds -- depended on the finding that the university was eligible and that the university could not be eligible if it knowingly violated the incentive compensation rule.
That too is wrong. The Department of Education has the discretion to use a variety of remedies in the event that it believes an institution violated a participation requirement like the incentive compensation rule. These include placing an institution on the reimbursement method of receiving Title IV funds, or requiring repayment of funds, fines, and provisional certification. To be sure, the department may also seek to revoke the institution’s eligibility, but it is not compelled to do so. In contrast, the department must revoke eligibility if a true statutory condition of eligibility is no longer met, such as accreditation by a recognized accrediting agency or state licensure.
Yet, Judge Easterbrook stated that “[i]f a false statement is integral to a causal chain leading to payment, it is irrelevant how the federal bureaucracy has apportioned the statements among the layers of paperwork.” This conflation of the requirements in a complex regulatory structure like the HEA can only fuel False Claims Act qui tam litigation, since now, based on Judge Easterbrook’s erroneous understanding of how the HEA works, any alleged violation can serve as the basis for relators and, more realistically, their enterprising counsel to sue.
By failing to grasp the distinction between eligibility and participation, his opinion, on behalf of one of the leading federal Courts of Appeals, may dramatically increase the vulnerability of institutions of higher education to a whole new species of lawsuits: False Claims Act qui tam actions alleging knowing violations of one of the myriad requirements in the HEA and implementing regulations. The danger of such litigation will be heightened by the threat of treble damages under the False Claims Act.
It was precisely this danger that another federal court recognized in a qui tam case involving the same incentive compensation requirement ( United States ex rel. Graves v. ITT Educational Services, Inc.). That court, following the teaching of the Supreme Court and five U.S. Courts of Appeals in an extensive and well-reasoned decision that recognized the relevant distinctions in the HEA structure, understood that False Claims Act liability attaches not to the underlying allegedly fraudulent activity, but to the claim for payment. Judge Easterbrook’s opinion noted this case, which was squarely on point to the case before him, toward the end of his brief opinion. However, he gave it short shrift because it was decided by a district court judge (it was affirmed without opinion by the Fifth Circuit).
Judge Easterbrook seems to have had some inkling of the flood of litigation that his opinion may cause. In discussing the ITT case and Oakland City University’s protests that any purported regulatory violation in a funding program could require litigation in a False Claims Act suit, he took refuge in the requirement that the violation must be “knowing.”
As he stated, “[t]ripping up on a regulatory violation does not entail a knowingly false representation.” That is no bulwark against abusive plaintiffs’ attorneys. It will not be hard to plead a knowing violation, survive a motion to dismiss, and subject institutions to extensive discovery aimed at determining whether someone acting on their behalf “knew” that they planned to violate one of the many requirements of doubtful specificity in the HEA and the voluminous Department regulations.
Judge Easterbrook’s bland assurances that they will ultimately prevail will be cold comfort later after thousands of dollars of legal fees, extensive distractions from their missions of educating students, and smears against their reputations in the news media. Unless Oakland City is reversed, it is Judge Easterbrook and the Seventh Circuit who have unfortunately tripped up.
Mark L. Pelesh
Mark L. Pelesh is executive vice president for legislative and regulatory affairs for Corinthian Colleges, Inc. He was formerly the head of the Education Law Group at Drinker Biddle & Reath in Washington, and specialized in the Higher Education Act and U.S. Department of Education regulations.
Whether we’re aware of it or not, the doctrine of “fair use” built into copyright law is one of the most important protections available to scholars, librarians, and students. Every time you quote from someone else’s work, every time you photocopy an article for a student, every time you read a passage aloud to your class, you are technically in violation of copyright.
The reason that an army of publishers and FBI agents aren’t smashing down your office door is that U.S. jurisprudence has long understood that a totalizing approach to copyright would be disastrous. Fair use is the only way we as individuals can together do what is fundamentally a collective endeavor, scholarship, in an information ecology that otherwise lives and dies by the intensely individualizing force of the marketplace.
But fair use has been carrying a heavy load lately, and it’s starting to show its limitations. Over the last few decades and especially amid the recent “copyright wars,” a powerful new philosophy has emerged: Rather than seeing copyright as a careful balance between the interests of private owners and the public, powerful content industries have argued that robustly protecting private interests is always the best way to serve the public. It’s the trickle-down theory of knowledge: Give the power to the producers and get out of the way, and it will eventually get to everyone who needs it. And digital technologies have handed copyright owners further power to regulate the use of their work, to further commodify information in ways never before imagined.
While most of us in higher education are little content industries ourselves, we should not be seduced into forgetting our role first and foremost as the keepers, distributors, and developers of our society’s body of public knowledge. We must fight for the promise copyright made to the public: All these economic rights are only in the service of intellectual progress. However, our rhetorical arsenal in this battle seems to be only to trot out fair use, i.e. the right to violate copyright for progressive reasons. Technical copy protection? Don’t forget about fair use. Restricting peer-to-peer networks? Don’t forget about fair use. Suing our students for downloading? Don’t forget about fair use. Automatic permission systems in educational courseware? Don’t forget about fair use. It’s a wonder the poor statute can barely stand, considering how often it is invoked as defense, criticized as folly.
This dependence on fair use, to somehow safeguard all of the myriad “public interest” elements of copyright’s balance, risks crushing it altogether -- no more so than in the pending battle around Google Book Search.
For those who don’t know, the search engine giant recently announced its aspiration to digitize every book ever printed. To do this, it partnered with the university libraries of Stanford, Harvard, Michigan, and Oxford, and with the New York Public Library. Together they have already begun the process of digitizing works whose copyright protection has run out -- right now, those published before 1924. These books would be full-text searchable and could be read in their entirety online, for free. For more recent books still protected under copyright, Google intends to digitize and make them searchable as well; however, the text returned in response to the search query would only be a short excerpt around the located word or phrase. Publishers who don’t want their work to appear at all can opt out of the system. Links will lead users to vendors where the book in question can be purchased.
To be clear, Google’s project does require making copies of numerous copyrighted books, and an unauthorized copy at that. Google says this copy is a fair use. And in lawsuits brought in September and October of 2005, the Author’s Guild ( complaint) and the Association of American Publishers ( complaint) argue it is a violation of their rights, and an attempt to unfairly capitalize on their work.
Unlike battles around digital music that have occupied the courts’ attention of late, this case will be of vital importance for the academic community. What is at stake is the possibility of a digital database of all written knowledge, and the question of who gets to produce it and under what conditions. Some think this is the Library at Alexandria finally realized; others think it's risky to have just one company running the stacks. But the case will live or die not on the question of the value of such a database to users, but on the narrower legal question of whether Google has the right to scan the books to begin with.
Perhaps this case will settle -- Google certainly has the funds to do so if it chooses. If it does get heard by the courts, what is of greatest importance, I believe, is how well the doctrine of fair use can carry the weight of this particular dispute. Lawrence Lessig has argued that fair use is being stretched thin because copying is so fundamental to the digital environment; uses that never even rang copyright’s bell, because they now require a copy to be made in the process, find themselves under legal scrutiny. I believe this is true. But fair use has already been pulled in too many directions, well before the Internet stretched it to its breaking point.
Fair use has a century-long history in U.S. courts, as a handy way for judges to stave off copyright claims when the use in question is socially valuable. At first, it was a way to protect small amounts of copying for the sake of criticism; as Justice Story noted in Folsom v. Marsh (1841), “no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.”
As such, one of the important criteria used by the courts to judge a use fair has been whether the new work is “transformative,” rather than merely replacing the old. The most famous of these is Acuff-Rose v. Campbell (1994), in which a surprisingly culturally savvy Supreme Court found that 2 Live Crew’s sampling of the Roy Orbison classic “Pretty Woman” was a kind of parody, however crude, and should be protected as fair -- it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
However, when fair use was finally codified in 1976, the primary motivation was not to protect criticism or parody but to accommodate the increasing use of the Xerox machine, particularly in education. University libraries did not want to risk liability when they made copies of journals and book chapters for faculty and students, and aggressively lobbied Congress for some legal protection to do so. When fair use became law, it included the four factors that had developed through court precedent, but also specified “multiple copies for classroom use” alongside parody, criticism, journalism, and scholarship as the likely contexts for the use to be considered fair.
Making multiple copies of an article for use in the classroom does not claim to produce a new work, in the way that sampling Orbison’s tune does. The value of the use is not that it is “transformative,” but that it is “distributive.” Now fair use is saddled with two aspirations. If the first understands that new work often needs to lean on and borrow from existing work, the second understands that the market mechanisms and distribution technologies that circulate work do not always achieve the scope and access we would like, or that other socially valuable activities require.
The courts have since used fair use in this ‘distributive’ sense, allowing cable TV to retransmit copyrighted broadcasts to audiences who could not otherwise receive them, prohibiting Kinko’s from producing course packets without paying a fee but leaving open the possibility that universities could do so as long as they do not enjoy direct commercial gain, and most notably in Sony v. Universal (1984), granting VCR manufacturers immunity to copyright penalties because some VCR users do make unauthorized copies of protected movies. The court argued that users have the right to record shows in order to watch them at other times, that this in fact “enlarges the television viewing audience” -- even the beloved Mr. Rogers testified that he wanted public school teachers to be able to tape his show and show it in class the next day. Again, these fair uses are not transformative, but distributive.
Is Google’s book search project fair use? This was the question vigorously debated, but by no means settled, at the recent “Battle over Books” debate at the New York Public Library and the blog-off that followed. Most copyright watchers largely agree that, if it makes it to court, the legal answer will come down to a battle of precedents. (See, for example, Jonathan Band’s “The Google Print Library: A Copyright Analysis.”) Google will come out on top if the court sees the case as akin to Kelly v. Arriba-Soft (2003), which allowed an image search engine to copy images from the Web so as to make thumbnail versions available to user queries.
The publishers and authors will likely triumph if the court turns to UMG Recordings et. al. v. MP3.com (2000), where MP3.com was found to be infringing when it made single copies of 400,000 CDs in order to stock a digital locker from which users could stream music they could prove they already owned. Google needs fair use to accommodate an activity that is neither “transformative” in the classic sense, or “distributive” in the Sony sense. Neither precedent did either, and the solutions were work-arounds to force the square pegs of searching and streaming in the oddly-shaped hole fair use offers them.
Let’s give fair use a break by sending in a legislative relief pitcher, one that can better allow for the role search engines play in facilitating the circulation of digital information. If fair use has been protecting both ‘transformative’ and ‘distributive’ uses, today we need a statute that can cover the kind of “indexing” uses that Google is after.
If we recognize that the Internet offers us the chance to make much more of our society’s culture and knowledge available to more people, and we recognize that to make this massive resource most useful requires ways to navigate and search it, and we further recognize that search engines like Google need to make copies of that work in order to make it searchable, then we have a genuine and reasonable public interest in ensuring that that they and others can do so. At the same time, we should also ensure that doing so doesn’t undercut the possibility of selling these works, and ideally should help their sales.
The publishers’ concern is not that Google shouldn’t make books searchable, but that they should have to pay a fee to do so. Such a fee represents the compensation not for lost sales, but to match what they might have earned had they provided this search function themselves. So let’s imagine that they do just that; Harper & Collins has already announced that it will develop a digital database of their books, following the lead of academic journal publishers like Sage. We could decide that this is a reasonable exploitation of one’s copyright, and forbid Google from building a library.
What this is likely to produce is a bunch of different, publisher-specific archives, all searchable under different criteria in different ways, all with different rules for how much text you can view and under what conditions -- and price. Smaller publishers will be less able to afford to do any of this, so once again we will be incidentally privileging those represented by the larger publishers when what we want is all work to be as available as possible.
And all publishers will be in a position to exclude some of their works from public view, for whatever idiosyncratic (or, more likely, financial) reasons they fancy. Perhaps someone would develop a meta-search that could query many of these archives simultaneously and return the results together -- in all likelihood, it would be Google. But this does not solve the systemic problem posed by letting publishers also govern access to their content.
What I think we’re after is something more straightforward, but nearly impossible to achieve. In this dream scenario, every author would make his or her work available in a digital form that is searchable but cannot be redistributed, in a widely compatible format, marked with the same kinds of metadata. We wouldn’t need Google Book Search, because these book “footprints” would all be online and available for searches just as Web sites are. But this is certainly an unreasonable and prohibitive request to make of authors, at least right now. For all intents and purposes, this is what Google seems willing to provide for us, with the promise of some ad revenue in return. As a less than perfect version of that ideal, it’s quite good.
Waiting for fair use to shield this expanding range of uses is slowing the innovation in information, knowledge, and culture the Internet seems ready to facilitate. And every time it does, we risk a court setting a retrograde precedent that cements digital culture into place for good. We need a new statute that acknowledges and accommodates the common sense recognition that search is good, that it requires incidental copying, and that it should not be left to individual, competing publishers to make their work part of the public trust.
In a moment when we are handing content owners much more control not only over the use of their work but over access to it, we need to make a parallel commitment to ensuring and expanding access of a different kind, as an aggregate collection of all things thought and written that can be easily explored. And, we need to let fair use protect the activities it’s designed to protect, instead of letting it fray as it stands in as the only protection against a locked and licensed digital world.
Tarleton Gillespie is an assistant professor in the Department of Communication at Cornell University, and a Fellow with the Stanford Law School Center for Internet and Society.