College student wins free-speech spat, but what about next one?

News comes via the Electronic Frontier Foundation that Michigan State University has dropped disciplinary action against a student who had been accused of spamming and network abuse because she sent e-mail about a controversial campus matter to 391 faculty members.

That the outcome is a just one seems obvious from afar, but it has me wondering if the situation would have been far stickier in a slightly different setting. I'll get to that in a moment.

From the EFF press release:

EFF argued that the school's email policy was an unconstitutional restriction on the university community's free speech rights and had begun preparing a lawsuit on Ms. (Kara) Spencer's behalf.

"We're pleased that MSU has reversed course and will not only drop the charge against Ms. Spencer, but will reconsider its flawed policies," said EFF Legal Director Cindy Cohn. "When a school's anti-spam policy requires students to get approval before they discuss school policy with school officials, it has plainly left the realm of protecting against spam and has violated the Constitution."

As for Spencer, she said:

"The e-mail that I sent wasn't spam. It was part of an important conversation about university issues of common concern," said Spencer. "I'm pleased that MSU has finally recognized my right to express my views. Unconstitutional attempts to curb campus political activism aren't just illegal, they are counter-productive to universities' educational mission."

Score one for the First Amendment. However, the thought did occur to me: Would the issue be viewed any differently -- by the law or civil libertarians -- had this been a private university instead of a state (read: government-run) one?

I asked Cohn via e-mail. Her reply: "It would have been a more complicated analysis but I don't know that it would necessarily have meant that the policy was OK either."

I agree that the distinction would not make the policy OK -- as in reasonable, prudent or fair -- but I do believe the legal case would be significantly more difficult if not altogether untenable. (I'm no lawyer; Cohn is, obviously.)

Surely there is little doubt that a private employer can place restrictions on the use of e-mail that would have made Spencer's 391-piece delivery a violation of company policy subject to disciplinary action.

Now make the jump from private employer to private university: Is it really that much of a leap?

Feel free to discuss.

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